Interim Constitution Accord

The Pretoria Minute 1990, Article 3:

In the interest of moving as speedily as possible towards a negotiated peaceful political settlement and in the context of the agreements reached, the ANC announced that it was now suspending all armed actions with immediate effect. As a result of this, no further armed actions and related activities by the ANC and its military wing Umkhonto we Sizwe will take place. It was agreed that a working group will be established to resolve all outstanding questions arising out of this decision to report by 15 September 1990. Both sides once more committed themselves to do everything in their power to bring about a peaceful solution as quickly as possible.”

“Constitution of the Republic of South Africa Act 200 of 1993, Chapter 4, Section 36 Constitution of Parliament:

Parliament shall consist of the National Assembly and the Senate.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 4, Section 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.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 4, Section 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).

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 4, Section 84 Executive Deputy Presidents:

(1) Every party holding at least 80 seats in the National Assembly shall be entitled to designate an Executive Deputy President from among the members of the National Assembly.

(2) Should no party or only one party hold 80 or more seats in the National Assembly, the party holding the largest number of seats and the party holding the second largest number of seats shall each be entitled to designate one Executive Deputy President from among the members of the National Assembly.

(3) On being designated as such, an Executive Deputy President may elect to vacate or not to vacate his or her seat in the National Assembly.

(4) Section 81 shall apply mutatis mutandis to an Executive Deputy President.

(5) An Executive Deputy President may exercise the powers and shall perform the functions vested in the office of Executive Deputy President by this Constitution or assigned to him or her by the President.

(6) An Executive Deputy President shall, before formally assuming office, make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 4, Section 89 Cabinet procedure:

(1) Meetings of the Cabinet shall be presided over by the President, or, if the President so instructs, by an Executive Deputy President: Provided that the Executive Deputy Presidents shall preside over meetings of the Cabinet in turn unless the exigencies of government and the spirit underlying the concept of a government of national unity otherwise dictate.

(2) The Cabinet 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.

(3) Where an Executive Deputy President presides over a meeting of the Cabinet otherwise than in the capacity of Acting President, a decision in the Cabinet on any matter shall be submitted to the President before its implementation and shall upon its ratification by the President be deemed to be a decision taken in consultation with the Cabinet in accordance with section 82 (3).”

“Constitution of the Republic of South Africa Act 200 of 1993, Chapter 6, Section 75 Executive authority of the Republic:

The executive authority of the Republic with regard to all matters falling within the legislative competence of Parliament shall vest in the President, who shall exercise and perform his or her powers and functions subject to and in accordance with this Constitution.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 6, Section 76 Head of State:

The President shall be the Head of State.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 6, Section 77 Election of President:

(1)(a) The National Assembly shall at its first sitting after it has been convened in terms of Section 46 (2) elect one of its members as the President.

(b) The National Assembly and the Senate shall thereafter, as often as it again becomes necessary to elect a President, elect at a joint sitting one of the members of the National Assembly as the President.

(2)(a) The Chief Justice, or a judge of the Supreme Court designated by the Chief Justice for this purpose, shall preside over any sitting at which an election referred to in Subsection (1) takes place.

(b) An election referred to in Subsection (1) shall be conducted in accordance with Schedule 5.

(3) The election of a President in terms of Subsection (1)(b) shall take place at a time and on a date fixed by the Chief Justice: Provided that:

(a) if such an election of a President is occasioned by reason of a dissolution of Parliament, it shall take place within 10 days after the Senate was convened after the election of the National Assembly held in pursuance of such dissolution; or

(b) if such an election of a President is occasioned by reason of a vacancy in the office of President, it shall take place within 30 days after the vacancy arose.

(4) On being elected, the President shall vacate his or her seat in the National Assembly.

(5) During the period in which the President continues in office in terms of Section 80 (1)(b), he or she shall for the purposes of Section 42 (1)(e) be deemed not to hold an office of profit under the Republic.

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.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 6, Section 68 Constitution-making Body:

(1) The National Assembly and the Senate, sitting jointly for the purposes of this Chapter, shall be the Constitutional Assembly.

(2) The Constitutional Assembly shall draft and adopt a new constitutional text in accordance with this Chapter.

(3) (a) The first sitting of the Constitutional Assembly shall be convened by the President of the Senate not later than seven days as from the first sitting of the Senate under this Constitution.

(b) Any subsequent sittings of the Constitutional Assembly shall be convened by the Chairperson of the Constitutional Assembly after consultation with the Speaker and the President of the Senate.

(4) Subject to the rules and orders contemplated in section 70 and save where clearly inappropriate, sections 55 and 56 and the provisions of this Constitution with regard to joint sittings of the National Assembly and the Senate shall apply mutatis mutandis in respect of the Constitutional Assembly.

National Peace Accord of 1991, Article 1.3:

The fundamental rights and responsibilities derive from established democratic principles namely:

• democratic sovereignty derives from the people, whose right it is to elect their government and hold it accountable at the polls for its conduct of their affairs;

• the citizens must therefore be informed and aware that political parties and the media must be free to impart information and opinion;

• there should be an active civil society with different interest groups freely participating therein;

• political parties and organisations, as well as political leaders and other citizens, have an obligation to refrain from incitement to violence and hatred.

National Peace Accord of 1991, Article 2.2:

All political parties and organisations shall actively contribute to the creation of a climate of democratic tolerance by:

• publicly and repeatedly condemning political violence and encouraging among their followers an understanding of the importance of democratic pluralism and a culture of political tolerance; and

• acting positively, also vis-à-vis all public authorities including local and traditional authorities, to support the right of all political parties and organizations to have reasonable freedom of access to their members, supporters and other persons in rural and urban areas, whether they be housed on public or private property.

National Peace Accord of 1991, Article 2.3:

No political party or organisation or any official or representative of any such party, shall:

• kill, injure, apply violence to, intimidate or threaten any other person in connection with that person’s political beliefs, words, writings or actions;

• remove, disfigure, destroy, plagiarise or otherwise misrepresent any symbol or other material of any other political party or organisation;

• interfere with, obstruct or threaten any other person or group travelling to or from or intending to attend, any gathering for political purposes;

• seek to compel, by force or threat of force, any person to join any party or organisation, attend any meeting, make any contribution, resign from any post or

office, boycott any occasion or commercial activity or withhold his or her labour or fail to perform a lawful obligation; or

• obstruct or interfere with any official or representative of any other political party or organisation’s message to contact or address any group of people”

Constitution of the Republic of South Africa Act 200 of 1993, Constitutional Principle, Schedule 4, Article VIII:

There shall be representative government embracing multi-party democracy, regular elections, universal adult suffrage, a common voters’ roll, and, in general, proportional representation.

Constitution of the Republic of South Africa Act 200 of 1993 Chapter 9

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:

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.

Executive authority 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

(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.

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-

(a)shall, subject to subsection (2), not be competent to raise loans for current expenditure; and

(b)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

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.]

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.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 15, Section 232(4):

In interpreting this Constitution a provision in any Schedule, including the provision under the heading ‘National Unity and Reconciliation’, to this Constitution shall not by reason only of the fact that it is contained in a Schedule, have a lesser status than any other provision of this Constitution which is not contained in a Schedule, and such provision shall for all purposes be deemed to form part of the substance of this Constitution.

Constitution of the Republic of South Africa Act 200 of 1993, National Unity and Reconciliation:

This Constitution provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of color, race, class, belief or sex.

The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society.

The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.

These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization.

In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offenses associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 Oct 1990 and before 6 Dec 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed.

National Peace Agreement, Chapters 1, Article 1:

1.10. Since insufficient instruments exist to actively prevent violence and intimidation and regional and local levels, it is agreed that committees be appointed at regional and local levels to assist in this regard. Peace bodies are therefore to be established at both regional and local levels to be styled “Regional Dispute Resolution Committees” (RDRC) and “Local Dispute Resolution Committees” (LDRC) respectively. These bodies will be guided and co-ordinated at a national level by a National Peace Secretariat. At the local level the bodies will be assisted by Justices of the Peace.

1.11. The Preparatory Committee has played a crucial role in the process of bringing the major actors together to negotiate a Peace Accord. There is still much to be done to implement the Accord and establish the institutions of peace. To assist in this regard, a National Peace Committee shall be established.

National Peace Agreement, Chapter 7, National Peace Secretariat, Regional And Local Dispute Resolution Committees:

7.1. It is clear from the aforegoing that sufficient instruments exist to investigate violence and intimidation and to bring the perpetrators thereof to book. Insufficient instruments exist however to actively combat violence and intimidation at grassroots level. It is therefore proposed that committees be appointed at regional and local levels to assist in this regard. These committees will require national co-ordination.

7.2 In order to provide management skills, budgetary commitment and statutory empowerment and sanction, State involvement is essential.

7.3 A National Peace Secretariat

7.3.1 A National Peace Secretariat shall be established, comprising at least four persons nominated by the National Peace Committee and one representative of the Department of Justice. Further members, up to a maximum of four, may also be appointed.

7.3.2 The function of the National Peace Secretariat will be to establish and co-ordinate the Regional Dispute Resolution Committees and the Local Dispute Resolution Committees.

7.3.3 The National Peace Secretariat will take decisions on a consensus basis.

7.3.4 The required financial and administrative resources of the National Peace Secretariat, and the other bodies established by it, will be provided by the Department of Justice.

7.4 Regional and Local Dispute Committees

7.4.1 Peace bodies are to be established at both regional and local level, to be styled “Regional Dispute Resolution Committees” (RDRC) and “Local Dispute Resolution Committees” (LDRC) respectively.

7.4.2 Just as the Commission will gain its legitimacy from its composition, reflecting the interested and relevant organisations, the RDRCs and LDRCs will gain their legitimacy by representing the people and communities they are designed to serve.

7.4.3 The areas of jurisdiction of the RDRCs shall be decided by the National Peace Secretariat until such time as statutory provision is made.

7.4.4 RDRCs will be constituted as follows:

7.4.4.1 representatives from relevant political organisations;

7.4.4.2 representatives from relevant churches;

7.4.4.3 representatives of relevant trade unions, industry and business in the region;

7.4.4.4 representatives of relevant local and tribal authorities; and

7.4.4.5 representatives from the police and the defence force.

7.4.5 Duties of RDRCs shall include the following:

7.4.5.1 attending to any matter referred to it by the LDRC, the National Peace Secretariat or the Commission;

7.4.5.2 advising the Commission on matters causing violence and intimidation in the region;

7.4.5.3 settling disputes causing public violence or intimidation by negotiating with the parties concerned and recording the terms of such settlements;

7.4.5.4 guiding LDRCs in their duties;

7.4.5.5 monitoring current applicable peace accords and future peace agreements entered into in the relevant region and settling disputes arising from them;

7.4.5.6 informing the National Peace Secretariat of steps taken to prevent violence and intimidation in its region including breaches of Peace Agreements; and

7.4.5.7 consulting with the relevant authorities in its region to combat or prevent violence and intimidation.

7.4.6 The communities within which LDRCs are to be established should be identified by the RDRCs.

7.4.7 LDRCs will be constituted by drawing representatives reflecting the needs of the relevant community.

7.4.8 Duties of the LDRCs shall include the following:

7.4.8.1 attending to any matter referred to it by either the Commission or the RDRCs;

7.4.8.2 creating trust and reconciliation between grassroots community leadership of relevant organisations,including the police and the defence force;

7.4.8.3 co-operating with the local Justice of the Peace in combating and preventing violence and intimidation;

7.4.8.4 settling disputes causing public violence or intimidation by negotiating with the parties concerned and recording the terms of such settlements;

7.4.8.5 eliminating conditions which may harm peace accords or peaceful relations;

7.4.8.6 reporting and making recommendations to the relevant RDRCs;

7.4.8.7 to promote compliance with currently valid and future peace accords and agreements entered into in the relevant area;

7.4.8.8 to agree upon rules and conditions relating to marches, rallies and gatherings; and

7.4.8.9 liaise with local police and local magistrates on matters concerning the prevention of violence, the holding of rallies, marches and gatherings.

7.5 Justices of the Peace

7.5.1 It is proposed that additional Justices of the Peace be appointed after consultation with the relevant parties and the LDRCs. The purpose of the Justices of the Peace will essentially be to promote the peace process at grassroots level and to assist the LDRCs in their activities.

7.5.2 Duties of Justices of the Peace shall include the following:

7.5.2.1 investigating any complaint received from anyone pertaining to public violence and intimidation, except where legal processes of investigations instituted by the South African Police, other police forces, the Commission, the RDRCs, the Police Reporting Officer or a commission of inquiry are dealing with the relevant matter;

7.5.2.2 mediating between relevant parties to a dispute by negotiation;

7.5.2.3 applying rules of natural justice when issuing an order which will be fair and just in the particular circumstances in order to restore peaceful relations;

7.5.2.4 referring facts constituting an offence to the relevant Attorney-General;

7.5.2.5 in co-operation with parties and in consultation with the LDRCs acting as the ears and eyes of LDRCs and reacting in urgent cases;

7.5.2.6 in all matters relating to public violence reporting to the LDRCs; and

7.5.2.7 to pronounce as a judgement the terms of a settlement reached at LDRCs or RDRCs, provided that the terms of such settlement are executable.

7.6 RDRCs, LDRCs and Justices of the Peace shall be empowered to:

7.6.1 request the presence of any person with knowledge of any acts of violence or intimidation to give evidence;

7.6.2 request that any person in possession of any relevant document or other evidentiary material put the same at their disposal; and

7.6.3 protect the identity and safety of anyone assisting the relevant body as contemplated in 7.6.1 and 7.6.2 by excluding the public and/or media from its proceedings or by limiting access to its documents or reports or by prohibiting the publication of the contents of any of its documents or reports.

7.7 The National Peace Secretariat shall assist RDRCs in the exercise of their duties.

7.8 RDRCs may limit the number of members of a LDRC taking into account the prevailing circumstances in the community.

7.9 RDRCs shall determine the boundaries of the area constituting the jurisdiction of LDRCs within their own areas of jurisdiction.

7.10 The National Peace Secretariat and the Commission will advise on the policy to be applied to and by the RDRCs and the LDRCs and the management of the said bodies.

7.11 Members of the RDRCs, LDRCs and Justices of the Peace not in the full-time employment of the State shall be entitled to remuneration and allowances to be paid by the State.

7.12 RDRCs and LDRCs shall appoint chairmen and vice-chairmen to represent the RDRC or LDRC concerned for a period of one year.

7.13 RDRCs and LDRCs shall furnish the National Peace Secretariat, the Commission or the relevant RDRC, as the case may be, with any information required by such bodies.

7.14 In view of the lack of effective peace promoting mechanisms at grassroots level it is urgent that these proposals be implemented as soon as possible. Because of the said urgency, it is agreed that the proposals be implemented on a voluntary basis at the outset. In order to give permanency and effectivity to the proposed structures it will have to be given statutory recognition as soon as possible. This should also ensure that the structures be funded by the State. In drafting the required legislation there should be wide consultation including with the National Peace Committee. The proposed legislation will also be published for general information and comment.

7.15 In order to ensure the proper functioning of the LDRCs, it is necessary to:

7.15.1 give them high status in their communities for their role in the peace process;

7.15.2 compensate the members of LDRCs for out-of-pocket expenses for attending meetings; and

7.15.3 train the members of the LDRCs in conciliating disputes, running meetings, negotiating skills, etc.

National Peace Agreement, Chapter 8, National Peace Committee:

8.1 Composition

8.1.1 Those political parties and organisations currently represented on the Preparatory Committee shall constitute the National Peace Committee together with representatives drawn from other signatory parties where the National Peace Committee believes such inclusion will give effect to the National Peace Accord.

8.1.2 The National Peace Committee shall appoint a chairperson and vice-chairperson, who shall be drawn from the religious and business communities.

8.2 Objective

The objective of the National Peace Committee is to monitor and to make recommendation on the implementation of the National Peace Accord as a whole and to ensure compliance with the Code of Conduct for Political Parties and Organisations.

8.3 Functions

8.3.1 The functions of the National Peace Committee shall be, inter alia, to:

8.3.1.1 perform those functions imposed upon it by the National Peace Accord;

8.3.1.2 receive and consider reports by the National Peace Secretariat and the Commission;

8.3.1.3 decide disputes concerning the interpretation of the Code of Conduct for Political Parties and Organisations;

8.3.1.4 resolve disputes concerning alleged transgression of the Code of Conduct for Political Parties and Organisations;

8.3.1.5 convene a meeting of the signatories in the event of an unresolved breach of the National Peace Accord; and

8.3.1.6 recommend legislation to give effect to the National Peace Accord.

8.4 Powers

8.4.1 The National Peace Committee shall have the following powers:

8.4.1.1 promote the aims and spirit of the National Peace Accord;

8.4.1.2 convene a meeting of the signatories where necessary;

8.4.1.3 amend the constitution of the National Peace Committee;

8.4.1.4 negotiate and conclude further agreements to achieve the objects of the National Peace Accord.

8.5 Meetings

8.5.1 The National Peace Committee shall elect a chairperson who shall not be a representative of any of the signatory parties.

8.5.2 Meetings shall take place on a regular basis at a date and time agreed to in advance.

8.5.3 Urgent meetings shall be convened by the chairperson on not less than 48 hours’ notice in writing to the authorised representatives;

8.5.4 The service of written notice of a meeting at the specified address of the authorised person shall constitute due notice.

8.5.5 An urgent meeting shall be called by the chairperson on a written request of one of the signatory parties to the National Peace Accord.

8.6 Voting

8.6.1 All decisions shall be by consensus.

8.6.2 In the event of a dispute over the interpretation of the National Peace Accord, the failure of the National Peace Committee to achieve consensus at the meeting at which the dispute is raised or at such further meetings as agreed, the dispute shall be referred to expedited arbitration in the manner set out in paragraph 9.4.

8.6.3 In the event of a breach of the National Peace Accord not being resolved by consensus at a meeting of the National Peace Committee, the chairperson of the National Peace Committee shall convene a meeting of national leadership of the signatories within 30 days of the meeting.

National Peace Agreement, Chapter 9, Enforcing the peace agreement between the parties:

9.1 There should be simple and expeditious procedures for the resolution of disputes regarding transgressions of the Code of Conduct for Political Parties and Organisations by political parties and organisations who are signatories of the National Peace Accord. These disputes should wherever possible, be settled:

9.1.1 at grassroots level;

9.1.2 through the participation of the parties themselves; and

9.1.3 by using the proven methods of mediation, arbitration and adjudication.

9.2 Disputes and complaints regarding transgression of the Code of Conduct for Political Parties and Organisations shall be referred to the National Peace Committee or a committee to whom it has referred the matter for resolution, if the parties were not able to resolve the dispute themselves.

9.3 Where the dispute cannot be resolved by the National Peace Committee or the committee to whom it has been referred to by the National Peace Committee, it shall be referred for arbitration.

9.4 The arbitrator shall be a person with legal skills, appointed by the relevant parties by consensus, failing which the arbitrator shall be appointed by the National Peace Committee within 21 days of being requested to do so in writing and failing which the Chair-person of the National Peace Committee shall appoint an arbitrator.

9.5 Subject to the above, the procedure of the arbitration shall be as follows:

9.5.1 the complaint shall be referred to the arbitrator by the complaining parties;

9.5.2 the arbitrator shall decide on a date of hearing and call upon the parties to the dispute to be present at the hearing with their witnesses;

9.5.3 the hearing shall be conducted in private;

9.5.4 the arbitrator shall make a finding on the facts and make an order on the organisation concerned to remedy the breach either by a public distancing of the organisation from the events or by steps to be taken to prevent further breaches of the Code and the time within which the order has to be implemented;

9.5.5 the arbitrator shall hold a compliance hearing once the time period has expired to determine compliance;

9.5.6 the arbitrator will then submit a report of its findings to the National Peace Committee.

9.6 The signatories agree to consult each other in the National Peace Committee on methods of ensuring that the Code of Conduct for Political Parties and Organisations is enforceable on all such bodies, including the possibility of statutory enforcement.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 96 Judicial authority:

(1) The judicial authority of the Republic shall vest in the courts established by this Constitution and any other law.

(2) The judiciary shall be independent, impartial and subject only to this Constitution and the law.

(3) No person and no organ of state shall interfere with judicial officers in the performance of their functions.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 97 Appointment of Chief Justice and President of Constitutional Court:

(1) There shall be a Chief Justice of the Supreme Court of South Africa, who shall, subject to Section 104, be appointed by the President in consultation with the Cabinet and after consultation with the Judicial Service Commission.

(2)(a) There shall be a President of the Constitutional Court, who shall, subject to Section 99, be appointed by the President in consultation with the Cabinet and after consultation with the Chief Justice.

(b) Unless the new constitutional text provides otherwise, the President of the Constitutional Court shall hold office for a non-renewable period of seven years.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 98 Constitutional Court and its jurisdiction:

(1) There shall be a Constitutional Court consisting of a President and 10 other judges appointed in terms of Section 99.

(2) The Constitutional Court shall have jurisdiction in the Republic as the court of final instance over all matters relating to the interpretation, protection and enforcement of the provisions of this Constitution, including:

(a) any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3;

(b) any dispute over the constitutionality of any executive or administrative act or conduct or threatened executive or administrative act or conduct of any organ of state;

(c) any inquiry into the constitutionality of any law, including an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of this Constitution;

(d) any dispute over the constitutionality of any Bill before Parliament or a provincial legislature, subject to Subsection (9);

(e) any dispute of a constitutional nature between organs of state at any level of government;

(f) the determination of questions whether any matter falls within its jurisdiction; and

(g) the determination of any other matters as may be entrusted to it by this Constitution or any other law.

(3) The Constitutional Court shall be the only court having jurisdiction over a matter referred to in Subsection (2), save where otherwise provided in Section 101 (3) and (6).

(4) A decision of the Constitutional Court shall bind all persons and all legislative, executive and judicial organs of state.

(5) In the event of the Constitutional Court finding that any law or any provision thereof is inconsistent with this Constitution, it shall declare such law or provision invalid to the extent of its inconsistency: Provided that the Constitutional Court may, in the interests of justice and good government, require Parliament or any other competent authority, within a period specified by the Court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified.

(6) Unless the Constitutional Court in the interests of justice and good government orders otherwise, and save to the extent that it so orders, the declaration of invalidity of a law or a provision thereof:

(a) existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such declaration of invalidity; or

(b) passed after such commencement, shall invalidate everything done or permitted in terms thereof.

(7) In the event of the Constitutional Court declaring an executive or administrative act or conduct or threatened executive or administrative act or conduct of an organ of state to be unconstitutional, it may order the relevant organ of state to refrain from such act or conduct, or, subject to such conditions and within such time as may be specified by it, to correct such act or conduct in accordance with this Constitution.

(8) The Constitutional Court may in respect of the proceedings before it make such order as to costs as it may deem just and equitable in the circumstances.

(9) The Constitutional Court shall exercise jurisdiction in any dispute referred to in Subsection (2)(d) only at the request of the Speaker of the National Assembly, the President of the Senate or the Speaker of a provincial legislature, who shall make such a request to the Court upon receipt of a petition by at least one-third of all the members of the National Assembly, the Senate or such provincial legislature, as the case may be, requiring him or her to do so.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 99 Composition of Constitutional Court and Appointment of Judges of Constitutional Court:

(1) Unless the new constitutional text provides otherwise, the judges of the Constitutional Court shall be appointed by the President for a non-renewable period of seven years.

(2) No person shall be qualified to be appointed President or a judge of the Constitutional Court unless he or she:

(a) is a South African citizen; and

(b) is a fit and proper person to be a judge of the Constitutional Court; and

(c)(i) is a judge of the Supreme Court or is qualified to be admitted as an advocate or attorney and has, for a cumulative period of at least 10 years after having so qualified, practiced as an advocate or an attorney or lectured in law at a university; or

(ii) is a person who, by reason of his or her training and experience, has expertise in the field of constitutional law relevant to the application of this Constitution and the law of the Republic.

(3) Four judges of the Constitutional Court shall be appointed from among the judges of the Supreme Court by the President in consultation with the Cabinet and with the Chief Justice.

(4) Subject to Subsection (5), six judges of the Constitutional Court shall be appointed by the President in consultation with the Cabinet and after consultation with the President of the Constitutional Court: Provided that not more than two persons may be appointed from the category of persons referred to in Subsection (2)(c)(ii).

(5)(a) Subject to Subsection (6), an appointment or appointments under Section 97 (2) or Subsection (4) or (7) of this section shall only be made from the recommendations of the Judicial Service Commission, and with due regard to its reasons for such recommendations, of not more than three nominees in excess of the number of persons required to be appointed: Provided that in respect of the first appointment after the commencement of this Constitution of the six judges referred to in Subsection (4), the Judicial Service Commission shall submit a list of ten nominees.

(b) If the appointing authorities decide not to accept any or some of such recommendations, the Judicial Service Commission shall be informed thereof and be furnished with the reasons therefore.

(c) After having been informed in terms of Paragraph (b), the Judicial Service Commission shall, in accordance with Paragraph (a), submit further recommendations, whereafter the appointing authorities shall make the appointment or appointments from the recommendations as supplemented in terms of this paragraph.

(d) In submitting its recommendations to the appointing authorities in terms of Paragraphs (a) and (c) the Judicial Service Commission shall have regard to the need to constitute a court which is independent and competent and representative in respect of race and gender.

(6) Subsection (5) shall not apply to the first appointment after the commencement of this Constitution of the President of the Constitutional Court under Section 97 (2).

(7) Vacancies in the Constitutional Court shall be filled:

(a) in the case of a vacancy in the office of a judge appointed under Subsection (3), in accordance with that subsection; and

(b) in the case of a vacancy in the office of a judge appointed under Subsection (4), in accordance with that subsection.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 100 Engaging the Constitutional Court:

(1) The conditions upon which the Constitutional Court may be seized of any matter within its jurisdiction, and all matters relating to the proceedings of and before the Court, shall be regulated by rules prescribed by the President of the Constitutional Court in consultation with the Chief Justice, which rules shall be published in the Gazette.

(2) The rules of the Constitutional Court may make provision for direct access to the Court where it is in the interest of justice to do so in respect of any matter over which it has jurisdiction.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 101 Supreme Court:

(1) There shall be a Supreme Court of South Africa, which shall consist of an Appellate Division and such provincial and local divisions, and with such areas of jurisdiction, as may be prescribed by law.

(2) Subject to this Constitution, the Supreme Court shall have the jurisdiction, including the inherent jurisdiction, vested in the Supreme Court immediately before the commencement of this Constitution, and any further jurisdiction conferred upon it by this Constitution or by any law.

(3) Subject to this Constitution, a provincial or local division of the Supreme Court shall, within its area of jurisdiction, have jurisdiction in respect of the following additional matters, namely:

(a) any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3;

(b) any dispute over the constitutionality of any executive or administrative act or conduct or threatened executive or administrative act or conduct of any organ of state;

(c) any inquiry into the constitutionality of any law applicable within its area of jurisdiction, other than an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of this Constitution;

(d) any dispute of a constitutional nature between local governments or between a local and a provincial government;

(e) any dispute over the constitutionality of a Bill before a provincial legislature, subject to Section 98 (9);

(f) the determination of questions whether any matter falls within its jurisdiction; and

(g) the determination of any other matters as may be entrusted to it by an Act of Parliament.

(4) For the purposes of exercising its jurisdiction under Subsection (3), a provincial or local division of the Supreme Court shall have the powers of the Constitutional Court in terms of Section 98 (5), (6), (7), (8) and (9) relating to the interpretation, protection and enforcement of this Constitution.

(5) The Appellate Division shall have no jurisdiction to adjudicate any matter within the jurisdiction of the Constitutional Court.

(6) If the parties to a matter falling outside the additional jurisdiction of a provincial or local division of the Supreme Court in terms of Subsection (3), agree thereto, a provincial or local division shall, notwithstanding any provision to the contrary, have jurisdiction to determine such matter: Provided that a provincial or local division shall not acquire jurisdiction in terms of this subsection with regard to any matter referred to in Section 102 (12).

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 241 Transitional arrangements: Judiciary:

(1) Every court of law existing immediately before the commencement of this Constitution in an area which forms part of the national territory, shall be deemed to have been duly constituted in terms of this Constitution or the laws in force after such commencement, and shall continue to function as such in accordance with the laws applicable to it until changed by a competent authority: Provided-

(a) that an appellate division of a supreme court which immediately before the commencement of this Constitution exercised jurisdiction in respect of an area which forms part of the national territory, other than the Appellate Division of the Supreme Court of South Africa, shall cease to exist with effect from the date of commencement of the Constitution of the Republic of South Africa Third Amendment Act, 1994;

(b) that any case pending before any such appellate division immediately before the said date shall be disposed of by such appellate division and the judges of appeal serving in such appellate division as if such division had not ceased to exist; and

(c) that any person who immediately before the said date was the chief justice in respect of any such appellate division, shall continue in office without any change in the terms and conditions of his or her service and shall be deemed to be the Judge President of the supreme court of which that appellate division previously formed part until the existing court structures have been rationalised as contemplated in section 242 (1). [Sub-s. (1) amended by s. 15 (a) of Act 13 of 1994.]

The National Peace Agreement, Article 1.13:

An effective and credible criminal judicial system requires the swift and just dispensation of justice. This in turn will promote the restoration of peace and prosperity to communities, freeing them of the ravages of violence and intimidation. Special attention should be given to unrest related cases by setting up Special Criminal Courts specifically for this purpose.

National Peace Agreement, Chapter 10 Special Criminal Courts:

10.1 An effective and credible criminal judicial system requires the swift but just dispensation of justice. This in turn will promote the restoration of peace and prosperity to communities, freeing them of the ravages of violence and intimidation. Special attention should be given to unrest related cases, cases of public violence and cases involving intimidation by setting up Special Criminal Courts specifically for the purpose.

10.2 It is agreed that the Department of Justice, in co-operation with local legal practitioners of the Law Societies and the Bar, should establish project committees to advise the Department of Justice on the administration of the proposed Special Criminal

Courts.

10.3 These Special Criminal Courts will not deal with ordinary day-to-day crime. Its function will be to deal with unrest related cases. As a result, cases being heard in these courts will be disposed of swiftly and effectively without delay. Cognisance is taken of the initiative to establish mobile courts in certain areas to bring justice closer to the people. The initiative is supported.

10.4 Special Criminal Courts should be located in areas where its services are most urgently needed. This implies that cases can be heard more expeditiously than ordinary criminal courts would be able to. This ensures that perpetrators of violence and intimidation will not unnecessarily be let out on bail enabling them to become reinvolved in violence and intimidation. This also ensures that those who are maliciously accused of being violent can have their names cleared sooner than is the case at present.

10.5 The Criminal Law Amendment Act of 1991 provides a mechanism for a programme of witness protection. It is based on the voluntary co-operation of the person threatened by others and can also protect his family members. It is agreed that these provisions be actively utilised in areas affected by unrest.

10.6 For unrest, Political violence and intimidation related offences to be effectively combated, criminals should be prosecuted as effectively as possible and at the earliest instance.

10.7 It is acknowledged that for Special Criminal Courts to be effective, special procedural and evidential rules should apply. The parties therefore commit themselves to promoting procedural and evidential rules that will facilitate the expeditious and effective hearing of criminal cases.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 14, Section 224 Establishment of National Defence Force:

(1) The National Defence Force is hereby established as the only defence force for the Republic.

(2) The National Defence Force shall at its establishment consist of all members of:

(a) the South African Defence Force;

(b) any defence force of any area forming part of the national territory; and

(c) any armed force as defined in Section 1 of the Transitional Executive Council Act, 1993 (Act 151 of 1993), and whose names, at the commencement of this Constitution, are included in a certified personnel register referred to in Section 16 (3) or (9) of the said Act: Provided that this subsection shall not apply to members of any such defence or armed force if the political organization under whose authority and control it stands or with which it is associated and whose objectives it promotes did not take part in the first election of the National Assembly and the provincial legislatures under this Constitution.

(3) Save for the National Defence Force, no other armed force or military force or armed organization or service may be established in or for the Republic other than:

(a) as provided for in this Constitution;

(b) a force established by or under an Act of Parliament for the protection of public property or the environment; or

(c) a service established by or under law for the protection of persons or property.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 14, Section 225 Chief of National Defence Force:

Subject to Section 236 (1) and (2), the President shall appoint a Chief of the National Defence Force, who shall exercise military executive command of the National Defence Force, subject to the directions of the Minister responsible for defence and, during a state of national defence, of the President.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 14, Section 226 Members of National Defence Force:

(1) The National Defence Force shall comprise both a permanent force and a part-time reserve component.

(2) The establishment, organization, training, conditions of service and other matters concerning the permanent force shall be as provided for by an Act of Parliament.

(3) The establishment, organization, training, state of preparedness, calling up, obligations and conditions of service of the part-time reserve component shall be as provided for by an Act of Parliament.

(4) The National Defence Force shall be established in such a manner that it will provide a balanced, modern and technologically advanced military force, capable of executing its functions in terms of this Constitution.

(5) All members of the National Defence Force shall be properly trained in order to comply with international standards of competency.

(6) No member of the permanent force shall hold office in any political party or political organization.

(7) A member of the National Defence Force shall be obliged to comply with all lawful orders, but shall be entitled to refuse to execute any order if the execution of such order would constitute an offence or would breach international law on armed conflict binding on the Republic.

(8) Provision shall be made by an Act of Parliament for the payment of adequate compensation to:

(a) a member of the National Defence Force who suffers loss due to physical or mental disability sustained in the execution of his or her duties as such a member; and

(b) the immediate dependants of a member of the National Defence Force who suffer loss due to the death or physical or mental disability of such a member resulting from the execution of his or her duties as such a member.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 14, Section 227 Functions of National Defence Force:

(1) The National Defence Force may, subject to this Constitution, be employed:

(a) for service in the defence of the Republic, for the protection of its sovereignty and territorial integrity;

(b) for service in compliance with the international obligations of the Republic with regard to international bodies and other states;

(c) for service in the preservation of life, health or property;

(d) for service in the provision or maintenance of essential services;

(e) for service in the upholding of law and order in the Republic in co-operation with the South African Police Service under circumstances set out in a law where the said Police Service is unable to maintain law and order on its own; and

(f) for service in support of any department of state for the purpose of socio-economic upliftment.

(2) The National Defence Force shall:

(a) exercise its powers and perform its functions solely in the national interest by:

(i) upholding the Constitution;

(ii) providing for the defence of the Republic; and

(iii) ensuring the protection of the inhabitants of the Republic,

in accordance with this Constitution and any law;

(b) exercise its powers and perform its functions under the directions of the government of the Republic;

(c) refrain from furthering or prejudicing party-political interests;

(d) not breach international customary law binding on the Republic relating to aggression;

(e) in armed conflict comply with its obligations under international customary law and treaties binding on the Republic; and

(f) be primarily defensive in the exercise or performance of its powers and functions.

(3) The employment for service, training, organization and deployment of the National Defence Force shall be effected in accordance with the requirements of Subsection (2).

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 14, Section 228 Accountability:

(1) The Minister responsible for defence shall be accountable to Parliament for the National Defence Force.

(2) Parliament shall annually approve a budget for the defence of the Republic.

(3)(a) A joint standing committee of Parliament on defence shall be established, consisting of members of all political parties holding more than 10 seats in the National Assembly and willing to participate in the committee.

(b) The total membership of the committee shall be as determined by or under the rules and orders.

(c) Such a party shall be entitled to designate a member or members on the committee in accordance with the principle of proportional representation and as determined in accordance with the following formula:

(i) A quota of seats per member of the committee shall be determined by dividing the total number of seats in the National Assembly held jointly by all the parties referred to in Paragraph (a) by the total number of members of the committee plus one.

(ii) The result, disregarding third and subsequent decimals, if any, shall be the quota of seats per member.

(iii) The number of members that a participating party shall be entitled to designate on the committee, shall be determined by dividing the total number of seats held by such party in the National Assembly by the quota referred to in Subparagraph (ii).

(iv) The result shall, subject to Subparagraph (v), indicate the number of members that such party is entitled to designate on the committee.

(v) Where the application of the above formula yields a surplus not absorbed by the number of members allocated to a party, such surplus shall compete with other similar surpluses accruing to another party or parties, and any member or members which remain unallocated shall be allocated to the party or parties concerned in sequence of the highest surplus.

(d) The committee shall be competent to investigate and make recommendations regarding the budget, functioning, organization, armaments, policy, morale and state of preparedness of the National Defence Force and to perform such other functions relating to parliamentary supervision of the Force as may be prescribed by law.

(4)(a) The President shall, when the National Defence Force is employed for service referred to in Section 227 (1)(a), (b) or (e), forthwith inform Parliament of the reasons for such employment.

(b) If, in the case of such an employment referred to in Section 227 (1)(a) or (b), Parliament is not sitting, the President shall summon the joint standing committee referred to in Subsection (3) to meet expeditiously, but not later than 14 days after the commencement of such employment, and shall inform the committee of the reasons for such employment.

(5) Parliament may by resolution terminate any employment referred to in Section 227 (1)(a), (b) or (e), but such termination of employment shall not affect the validity of anything done in terms of such employment up to the date of such termination, or any right, privilege, obligation or liability acquired, accrued or incurred as at the said date under and by virtue of such employment.

National Peace Accord, Chapter 3, Security Forces:

3.1 General Principles

3.1.1 The police shall endeavour to protect the people of South Africa from all criminal acts and shall to do so in a rigorously non-partisan fashion, regardless of the political belief and affiliation, race, religion, gender or ethnic origin of the perpetrators or victims of such acts.

3.3 Police Board:

3.3.1 A Police Board shall be established whose composition shall comprise of both members of the public and representatives of the police in equal numbers. The chairperson is to be appointed by the Minister of Law and Order from one of the members representing the public

3.3.2 The members of the public shall be appointed by the Minister of Law and Order to the Police Board from names put forward by unanimous decision by the National Peace Committee. The Minister of Law and Order shall have the discretion to appoint further members from parties who are not represented on the National Peace Committee.

3.3.3 The function of the Police Board shall be to consider and to make recommendations to the Minister of Law and Order in regard to the policy relating to the training and efficient functioning of the police, with a view to reconcile the interests of the community with that of the police.

3.3.4 The Police Board shall be empowered to do research and call for representations from the public regarding any investigation conducted by it.

3.3.5 The Police Board shall not have a role in regard to the day to day functioning of the police.

3.3.6 The recommendations of the Police Board in regard to the above matters shall be made public, insofar as it is essential in reconciling the interests of the community with that of the police.

3.4 Composition of the police force:

3.4.1 The relationship between, and the status of, the South African Police and the Police Forces in the Self-governing Territories in the transitional phase, can only be decided by the interested parties through negotiations.

3.4.2 Where the police Forces of any self-governing territory is alleged to be a party to the conflict, the Standing Commission shall investigate this and make appropriate recommendations.

3.8 General

3.8.1 This Accord shall, where applicable, be issued as a directive by the Commissioner of Police and if necessary, the Police Act and regulations will be amended accordingly.

3.8.2 In view of the changing policing demands of a changing South Africa the police.

3.8.3 This Accord shall, where applicable, be honoured by and shall in terms of paragraph 3.8.1 be binding on the police.

(2) The Act of Parliament referred to in Subsection (1) shall:

(a) subject to Sections 216, 217 and 218, provide for the appointment of a Commissioner of the South African Police Service (hereinafter in this Chapter called the `National Commissioner’) and a Commissioner for each province (hereinafter in this Chapter called a `Provincial Commissioner’);

(b) provide for the establishment and maintenance of uniform standards of policing at all levels regarding:

(i) the exercise of police powers;

(ii) the recruitment, appointment, promotion and transfer of members of the Service; (iii) suspension, dismissal, disciplinary and grievance procedures;

(iv) the training, conduct and conditions of service of members of the Service;

(v) the general management, control, maintenance and provisioning of the Service;

(vi) returns, registers, records, documents, forms and correspondence; and

(vii) generally, all matters which are necessary or expedient for the achievement of the purposes of this Constitution.

The Pretoria Minute of August 1990, Article 3.

In the interest of moving as speedily as possible towards a negotiated peaceful political settlement and in the context of the agreements reached, the ANC announced that it was now suspending all armed actions with immediate effect. As a result of this, no further armed actions and related activities by the ANC and its military wing Umkhonto we Sizwe will take place. It was agreed that a working group will be established to resolve all outstanding questions arising out of this decision to report by 15 September 1990. Both sides once more committed themselves to do everything in their power to bring about a peaceful solution as quickly as possible.

236. Transitional arrangements: Public administration

Section 8

(a) The National Defence Force referred to in section 224 shall, subject to this Constitution and any Act of Parliament, mutatis mutandis be governed by the Defence Act, 1957 (Act 44 of 1957).

(b) Any reference in any law to a defence force referred to in section 224 (2) (a) or (b), shall be deemed to be a reference to the National Defence Force.

(c) If the number of the members of the National Defence Force exceeds the personnel strength determined in respect of the force design and structure for the Force, any member of the Force who, due to integration, consolidation and rationalisation of the National Defence Force is not accommodated in such force design and structure, shall be dealt with in accordance with a law.

The demobilization and reintegration aspect of peace process were left to the interim government and the interim parliament. The parliament passed the Demobilization Act in 1996.

1996 Demobilization Act

Definitions

1. In this Act, unless the context otherwise indicates-

(i) “certified personnel register” means the certified personnel register referred to in section 224(2) of the Constitution; (iv)

(ii) “closing date”, for the purposes of section 6(1)(c), means the date 12 months after the date on which this Act comes into operation; (x)

(iii) “Committee” means the Demobilisation Committee, established by section 2; (vi)

(iv) “Constitution” means the Constitution of the Republic of SouthAfrica, 1993 (Act No. 200 of 1993); (v)

(v) “demobilisation” means the disbanding of members of the former nonstatutory forces who do not enter into agreements for temporary or permanent appointment with the South African Defence Force, as contemplated in section 236(8)(d) of the Constitution; (ii)

(vi) “Department” means the Department of Defence; (iii)

(vii) “dependant”, for the purposes of section 5, includes-

(a) any person in respect of whom the deceased was legally liable for maintenance at the time of his or her death;

(b) any child of the deceased born after his or her death;

(c) any surviving spouse of the deceased by virtue of a marriage or a union contracted in accordance with customary law or which is recognized as a marriage in accordance with the tenets of a

religion; (i)

(viii) “Minister” means the Minister of Defence; (vii)

(ix) “non-statutory forces” means the armed forces not established by any law and known or formerly known as the Azanian People’s Liberation Army and uMkhonto we Sizwe; (viii)

(x) “personnel list” means a list certified and submitted after the commencement of the Constitution, but before the adoption of the new constitutional text, as envisaged in section 73 of the Constitution, by a person duly authorised by the non-statutory force. (ix)

PART 2: DEMOBILISATION COMMITTEE Establishment of demobilisation committee

2. (1) There is hereby established a demobilisation committee which is accountable to the Minister, and which consists of a Chairperson and no fewer than four other members.

(2) The Chairperson and members shall be appointed by the Minister and shall be officials in the employment of the Department.

Duties and powers of Committee

3. (1) The Committee shall-

(a) consider applications submitted to it in terms of this Act;

(b) determine whether an applicant is eligible to benefit under the demobilisation programme in terms of sections 4 and 5;

(c) determine the benefit payable to each applicant;

(d) pay to an eligible applicant a demobilisation gratuity as provided for in the Schedule;

(e) determine the validity of the mandate of any person to act on behalf of the applicant referred to in section 6(1); and

(f) if it decides that an applicant is not eligible to benefit under the demobilisation programme-

(i) inform the applicant in writing of its decision, giving reasons therefor; and

(ii) inform the applicant in writing of his or her right to appeal against the decision.

(2) To enable it to perform its duties, the Committee shall have power-

(a) if it finds it necessary, to conduct any investigation in relation to any application lodged with it;

(b) to require any person to appear before it to give evidence or produce any document in or under his or her possession or control; and

(c) to conduct the activities which are necessary to carry out or exercise its duties and powers.

(3) The Committee may at any time review its decision if new facts are placed before it.

PART 3: APPLICATION OF ACT Parliamentary Oversight

4. The Joint Standing Committee of Parliament on Defence shall establish amultiparty subcommittee to oversee the administration and implementation of the demobilisation programme.

Right to be demobilised

5. (1) Any former member of the non-statutory forces-

(a) whose name and particulars appear in the certified personnel register or in a personnel list;

(b) who has not entered into an agreement for temporary or permanent employment with the South African National Defence Force as contemplated in section 236(8)(d) of the Constitution; and

(c) who no longer wishes to continue with a military career or does not satisfy the employment policies or the terms and conditions of service of the South African National Defence Force, shall have the right, subject to the provisions of this Act, to be demobilised and to receive a demobilisation gratuity determined in the Schedule.

(2) The Minister may on good cause shown order the inclusion in the register or list referred to in subsection (1) the name of any former member of the non-statutory forces which was by reason of an administrative oversight or error or for any other reason not included in or was deleted from that register or list before the date contemplated in paragraph 3 of Annexure D to theConstitution of the Republic of South Africa, 1996.

A name so included shall be deemed to have been included before the said date. Exclusion of recipients of demobilisation gratuity from Permanent Force

6. No person shall be appointed to any position in the permanent force component of the South African National Defence Force if he or she has accepted a demobilisation gratuity.

Dependant’s benefit

7. (1) Notwithstanding the provisions of any other law, a surviving dependant of any person who, but for his or her death, would have been eligible for demobilisation in terms of section 4, shall, subject to subsection (3), be entitled to receive the demobilisation gratuity to which that person would have been entitled, had he or she survived.

(2) For the purposes of this section, section 4(c) shall not apply in determining the eligibility of the deceased.

(3) The demobilisation gratuity referred to in subsection (1) shall, if the person referred to in that subsection-

(a) is survived by a spouse, be paid to that spouse;

(b) is survived by more than one spouse, be paid to those spouses in equal proportions;

(c) is not survived by a spouse but by a dependant or dependants, be paid that dependant, or those dependants in equal proportions.

(4) A dependant’s benefit shall only be paid out after the closing date for the submission of applications.

Applications for benefits

8. (1) Any person wishing to apply for a benefit under the demobilisation programme shall-

(a) complete an application in the form determined by the Committee;

(b) have a commissioner of oaths certify on the form that the applicant swore or affirmed that the information in that form is true and correct; and

(c) submit the application form to the Committee on or before the closing date.

(2) If a person who is eligible to a benefit under the demobilization programme is unable to apply in person terms of subsection (1) because of mental illness or any other disability, another person may submit the

application on his or her behalf.

PART 4: APPEAL MECHANISMS Right of appeal

9. (1) Any applicant who is dissatisfied with any decision of the Committee may appeal to the Minister by serving a written notice within 30 days after being informed of the Committee’s decision. A copy of the notice of appeal shall be lodged with the Committee.

(2) Within 21 days after the service of the notice of appeal, the applicant shall submit to the Minister his or her written grounds of appeal.

Procedure on appeal

10. (1) After receiving the applicant’s notice of appeal, the Committee shall, without delay, send to the Minister and the applicant a report of its findings.

(2) On receipt of the Committee’s report, the Minister or any other person designated by the Minister shall inform the applicant in writing of the date on which the appeal is to be considered.

(3) The applicant or another person acting on his or her behalf shall be given an opportunity to make representations to the Minister or any other person designated by the Minister.

(4) After considering all the relevant information the Minister may-

(a) confirm, vary or withdraw the decision of the Committee;

(b) refer the matter back to the Committee for further consideratio together with such instructions as are necessary to enable the Committee to deal with the application; or

(c) make such findings as he or she may deem necessary.

(5) The applicant and the Committee shall be informed in writing of the Minister’s decision.

(6) The decision of the Minister shall be final.

PART 5L COMMUNICATIONS RELATING TO DEMOBILISATION Duty of Committee to inform

11. The Committee shall take all necessary steps in order to inform the

public as to-

(a) the existence of the programme;

(b) the establishment of the Committee;

(c) the grounds for eligibility;

(d) the closing date for the submission of applications; and

(e) any other matter that may assist applicants in understanding the demobilisation programme and procedural matters relating thereto.

1993 interim constitution has the following provision on reintegration:

236. Transitional arrangements: Public administration

Section 8

(c) If the number of the members of the National Defence Force exceeds the personnel strength determined in respect of the force design and structure for the Force, any member of the Force who,

due to integration, consolidation and rationalisation of the National Defence Force is not accommodated in such force design and structure, shall be dealt with in accordance with a law.

The demobilization and reintegration aspect of peace process were left to the interim government and the interim parliament.

1996 Demobilization Act

PART 3: APPLICATION OF ACT

Parliamentary Oversight

4. The Joint Standing Committee of Parliament on Defence shall establish amultiparty subcommittee to oversee the administration and implementation of the demobilisation programme.

Right to be demobilised

5. (1) Any former member of the non-statutory forces-

(a) whose name and particulars appear in the certified personnel register or in a personnel list;

(b) who has not entered into an agreement for temporary or permanent employment with the South African National Defence Force as contemplated in section 236(8)(d) of the Constitution; and

(c) who no longer wishes to continue with a military career or does not satisfy the employment policies or the terms and conditions of service of the South African National Defence Force, shall have the right, subject to the provisions of this Act, to be demobilised and to receive a demobilisation gratuity determined in the Schedule.

(2) The Minister may on good cause shown order the inclusion in the register or list referred to in subsection (1) the name of any former member of the non-statutory forces which was by reason of an administrative oversight or error or for any other reason not included in or was deleted from that register or list before the date contemplated in paragraph 3 of Annexure D to theConstitution of the Republic of South Africa, 1996.

A name so included shall be deemed to have been included before the said date. Exclusion of recipients of demobilisation gratuity from Permanent Force

6. No person shall be appointed to any position in the permanent force component of the South African National Defence Force if he or she has accepted a demobilisation gratuity.

Dependant’s benefit

7. (1) Notwithstanding the provisions of any other law, a surviving dependant of any person who, but for his or her death, would have been eligible for demobilisation in terms of section 4, shall, subject to subsection (3), be entitled to receive the demobilisation gratuity to which that person would have been entitled, had he or she survived.

(2) For the purposes of this section, section 4(c) shall not apply in determining the eligibility of the deceased.

(3) The demobilisation gratuity referred to in subsection (1) shall, if the person referred to in that subsection-

(a) is survived by a spouse, be paid to that spouse;

(b) is survived by more than one spouse, be paid to those spouses in equal proportions;

(c) is not survived by a spouse but by a dependant or dependants, be paid that dependant, or those dependants in equal proportions.

(4) A dependant’s benefit shall only be paid out after the closing date for the submission of applications.

Applications for benefits

8. (1) Any person wishing to apply for a benefit under the demobilisation programme shall-

(a) complete an application in the form determined by the Committee;

(b) have a commissioner of oaths certify on the form that the applicant swore or affirmed that the information in that form is true and correct; and

(c) submit the application form to the Committee on or before the closing date.

(2) If a person who is eligible to a benefit under the demobilization programme is unable to apply in person terms of subsection (1) because of mental illness or any other disability, another person may submit the application on his or her behalf.

Pretoria Minute:

The further release of prisoners which can be dealt with administratively will start on 1 September 1990. Indemnity which can be dealt with in categories of persons and not on an individual basis will be granted as from 1 October 1990. This process will be completed not later than the end of 1990.

Report of the Working Group of the Groote Schuur Minute 6.6.1:

“The Working Group endorses the principles and factors set out in paragraph 6.5.2 and accepts that these will form the basis of guidelines to meet the South African situation when considering the grant of pardon or indemnity in respect of political offences.

6.6.2 As stated in the Groote Schuur Minute, it is understood that the Government may in its discretion consult other political parties and movements, and other relevant bodies with regard to the grant of pardon or indemnity in respect of offences relating to them. For this purpose it shall be free to formulate its own guidelines which it will apply in dealing with members of such organisations, grouping or institutions, governmental or otherwise, who committed offences on the assumption that a particular cause was being served or opposed.”

National Peace Accord Article 1.1 Rights of individuals in South Africa, Principles:

1.1 The establishment of a multi-party democracy in South Africa is our common goal.

Democracy is impossible in a climate of violence, intimidation and fear. In order to ensure democratic political activity all political participants must recognise and uphold certain fundamental rights described below and the corresponding responsibilities underlying those rights.

1.2 These fundamental rights include the right of every individual to:

– freedom of conscience and belief;

– freedom of speech and expression;

– freedom of association with others;

– peaceful assembly;

– freedom of movement;

– participate freely in peaceful political activity.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 8 Equality:

(1) Every person shall have the right to equality before the law and to equal protection of the law.

(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture or language.

(3)(a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.

(b) Every person or community dispossessed of rights in land before the commencement of this Constitution under any law which would have been inconsistent with Subsection (2) had that subsection been in operation at the time of the dispossession, shall be entitled to claim restitution of such rights subject to and in accordance with Sections 121, 122 and 123.

(4) Prima facie proof of discrimination on any of the grounds specified in Subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 9 Life:

Every person shall have the right to life

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 10 Human dignity:

Every person shall have the right to respect for and protection of his or her dignity.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 11 Freedom and security of the person:

(1) Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial.

(2) No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 12 Servitude and forced labor:

No person shall be subject to servitude or forced labor.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 13 Privacy:

Every person shall have the right to his or her personal privacy, which shall include the right not to be subject to searches of his or her person, home or property, the seizure of private possessions or the violation of private communications.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 14 Religion, belief, and opinion:

(1) Every person shall have the right to freedom of conscience, religion, thought, belief, and opinion, which shall include academic freedom in institutions of higher learning.

(2) Without derogating from the generality of Subsection (1), religious observances may be conducted at state or state-aided institutions under rules established by an appropriate authority for that purpose, provided that such religious observances are conducted on an equitable basis and attendance at them is free and voluntary.

(3) Nothing in this Chapter shall preclude legislation recognizing:

(a) a system of personal and family law adhered to by persons professing a particular religion; and

(b) the validity of marriages concluded under a system of religious law subject to specified procedures.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 15 Freedom of Expression:

(1) Every person shall have the right to freedom of speech and expression, which shall include freedom of the press and other media, and the freedom of artistic creativity and scientific research.

(2) All media financed by or under the control of the state shall be regulated in a manner which ensures impartiality and the expression of a diversity of opinion.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 16 Assembly, demonstration and petition:

Every person shall have the right to assemble and demonstrate with others peacefully and unarmed, and to present petitions.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 17 Freedom of association:

Every person shall have the right to freedom of association.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 18 Freedom of movement:

Every person shall have the right to freedom of movement anywhere within the national territory.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 19 Residence:

Every person shall have the right freely to choose his or her place of residence anywhere in the national territory.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 20 Citizens’ rights:

Every citizen shall have the right to enter, remain in and leave the Republic, and no citizen shall without justification be deprived of his or her citizenship.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 21 Political rights:

(1) Every citizen shall have the right:

(a) to form, to participate in the activities of and to recruit members for a political party;

(b) to campaign for a political party or cause; and

(c) freely to make political choices.

(2) Every citizen shall have the right to vote, to do so in secret and to stand for election to public office.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 22 Access to court:

Every person shall have the right to have justiciable disputes settled by a court of law or, where appropriate, another independent and impartial forum.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 23 Access to information:

Every person shall have the right of access to all information held by the state or any of its organs at any level of government in so far as such information is required for the exercise or protection of any of his or her rights.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 24 Administrative justice:

Every person shall have the right to

(a) lawful administrative action where any of his or her rights or interests is affected or threatened;

(b) procedurally fair administrative action where any of his or her rights or legitimate expectations is affected or threatened;

(c) be furnished with reasons in writing for administrative action which affects any of his or her rights or interests unless the reasons for such action have been made public; and

(d) administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is affected or threatened.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 25 Detained, arrested and accused persons:

(1) Every person who is detained, including every sentenced prisoner, shall have the right:

(a) to be informed promptly in a language which he or she understands of the reason for his or her detention;

(b) to be detained under conditions consonant with human dignity, which shall include at least the provision of adequate nutrition, reading material and medical treatment at state expense;

(c) to consult with a legal practitioner of his or her choice, to be informed of this right promptly and, where substantial injustice would otherwise result, to be provided with the services of a legal practitioner by the state;

(d) to be given the opportunity to communicate with, and to be visited by, his or her spouse or partner, next-of-kin, religious counsellor and a medical practitioner of his or her choice; and

(e) to challenge the lawfulness of his or her detention in person before a court of law and to be released if such detention is unlawful.

(2) Every person arrested for the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right:

(a) promptly to be informed, in a language which he or she understands, that he or she has the right to remain silent and to be warned of the consequences of making any statement;

(b) as soon as it is reasonably possible, but not later than 48 hours after the arrest or, if the said period of 48 hours expires outside ordinary court hours or on a day which is not a court day, the first court day after such expiry, to be brought before an ordinary court of law and to be charged or to be informed of the reason for his or her further detention, failing which he or she shall be entitled to be released;

(c) not to be compelled to make a confession or admission which could be used in evidence against him or her; and

(d) to be released from detention with or without bail, unless the interests of justice require otherwise.

(3) Every accused person shall have the right to a fair trial, which shall include the right:

(a) to a public trial before an ordinary court of law within a reasonable time after having been charged;

(b) to be informed with sufficient particularity of the charge;

(c) to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial;

(d) to adduce and challenge evidence, and not to be a compellable witness against himself or herself;

(e) to be represented by a legal practitioner of his or her choice or, where substantial injustice would otherwise result, to be provided with legal representation at state expense, and to be informed of these rights;

(f) not to be convicted of an offence in respect of any act or omission which was not an offence at the time it was committed, and not to be sentenced to a more severe punishment than that which was applicable when the offence was committed;

(g) not to be tried again for any offence of which he or she has previously been convicted or acquitted;

(h) to have recourse by way of appeal or review to a higher court than the court of first instance;

(i) to be tried in a language which he or she understands or, failing this, to have the proceedings interpreted to him or her; and

(j) to be sentenced within a reasonable time after conviction.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 26 Economic activity:

(1) Every person shall have the right freely to engage in economic activity and to pursue a livelihood anywhere in the national territory.

(2) Subsection (1) shall not preclude measures designed to promote the protection or the improvement of the quality of life, economic growth, human development, social justice, basic conditions of employment, fair labor practices or equal opportunity for all, provided such measures are justifiable in an open and democratic society based on freedom and equality.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 27 Labor relations:

(1) Every person shall have the right to fair labor practices.

(2) Workers shall have the right to form and join trade unions, and employers shall have the right to form and join employers’ organizations.

(3) Workers and employers shall have the right to organize and bargain collectively.

(4) Workers shall have the right to strike for the purpose of collective bargaining.

(5) Employers’ recourse to the lock-out for the purpose of collective bargaining shall not be impaired, subject to Section 33 (1).

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 28 Property:

(1) Every person shall have the right to acquire and hold rights in property and, to the extent that the nature of the rights permits, to dispose of such rights.

(2) No deprivation of any rights in property shall be permitted otherwise than in accordance with a law.

(3) Where any rights in property are expropriated pursuant to a law referred to in Subsection (2), such expropriation shall be permissible for public purposes only and shall be subject to the payment of agreed compensation or, failing agreement, to the payment of such compensation and within such period as may be determined by a court of law as just and equitable, taking into account all relevant factors, including, in the case of the determination of compensation, the use to which the property is being put, the history of its acquisition, its market value, the value of the investments in it by those affected and the interests of those affected.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 29 Environment:

Every person shall have the right to an environment which is not detrimental to his or her health or well-being.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 30 Children:

(1) Every child shall have the right:

(a) to a name and nationality as from birth;

(b) to parental care;

(c) to security, basic nutrition and basic health and social services;

(d) not to be subject to neglect or abuse; and

(e) not to be subject to exploitative labor practices nor to be required or permitted to perform work which is hazardous or harmful to his or her education, health or well-being.

(2) Every child who is in detention shall, in addition to the rights which he or she has in terms of Section 25, have the right to be detained under conditions and to be treated in a manner that takes account of his or her age.

(3) For the purpose of this section a child shall mean a person under the age of 18 years and in all matters concerning such child his or her best interest shall be paramount.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 31 Language and culture:

Every person shall have the right to use the language and to participate in the cultural life of his or her choice.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 32 Education:

Every person shall have the right:

(a) to basic education and to equal access to educational institutions;

(b) to instruction in the language of his or her choice where this is reasonably practicable; and

(c) to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 16, National Unity and Reconciliation:

In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offenses associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 Oct 1990 and before 6 Dec 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 2 Citizenship and Franchise, Section 5 Citizenship:

(1) There shall be a South African citizenship.

(2) South African citizenship and the acquisition, loss and restoration of South African citizenship shall, subject to Section 20 read with Section 33 (1), be regulated by an Act of Parliament.

(3) Every person who is a South African citizen shall, subject to this Constitution, be entitled to enjoy all rights, privileges and benefits of South African citizenship, and shall be subject to all duties, obligations and responsibilities of South African citizenship as are accorded or imposed upon him or her in terms of this Constitution or an Act of Parliament.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 30 Children:

(1) Every child shall have the right:

(a) to a name and nationality as from birth;

(b) to parental care;

(c) to security, basic nutrition and basic health and social services;

(d) not to be subject to neglect or abuse; and

(e) not to be subject to exploitative labor practices nor to be required or permitted to perform work which is hazardous or harmful to his or her education, health or well-being.

(2) Every child who is in detention shall, in addition to the rights which he or she has in terms of Section 25, have the right to be detained under conditions and to be treated in a manner that takes account of his or her age.

(3) For the purpose of this section a child shall mean a person under the age of 18 years and in all matters concerning such child his or her best interest shall be paramount.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3 Fundamental Rights, Section 32 Education:

Every person shall have the right-

(a) to basic education and to equal access to educational institutions;

(b) to instruction in the language of his or her choice where this is reasonably practicable; and

(c) to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 15 Fundamental Rights, Section 247 Special provisions regarding existing educational institutions:

(1) The national government and the provincial governments as provided for in this Constitution shall not alter the rights, powers and functions of the governing bodies, management councils or similar authorities of departmental, community-managed or state-aided primary or secondary schools under laws existing immediately before the commencement of this Constitution unless an agreement resulting from bona fide negotiation has been reached with such bodies and reasonable notice of any proposed alteration has been given.

(2) The national government shall not alter the rights, powers and functions of the controlling bodies of universities and technikons under laws existing immediately before the commencement of this Constitution, unless agreement resulting from bona fide negotiation has been reached with such bodies, and reasonable notice of any proposed alteration has been given.

(3) Should agreement not be reached in terms of subsection (1) or (2), the national government and the provincial governments shall, subject to the other provisions of this Constitution, not be precluded from altering the rights, powers and functions of the governing bodies, management councils or similar authorities of departmental, community-managed or state-aided primary or secondary schools, as well as the controlling bodies of universities and technikons, provided that interested persons and bodies shall be entitled to challenge the validity of any such alteration in terms of this Constitution.

(4) In order to ensure an acceptable quality of education, the responsible government shall provide funds to departmental, community-managed or state-aided primary or secondary schools on an equitable basis.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 1, Sections 2 National symbols:

(1) The national flag of the Republic shall be the flag the design of which is determined by the President by proclamation in the Gazette.

(2) The national anthem of the Republic shall be as determined by the President by proclamation in the Gazette.

(3) The coat of arms of the Republic and the seal of the Republic under the previous Constitution shall be the national coat of arms of the Republic and the seal of the Republic under this Constitution.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 1, Section 3 Languages:

(1) Afrikaans, English, isiNdebele, Sesotho sa Leboa, Sesotho, siSwati, Xitsonga, Setswana, Tshivenda, isiXhosa and isiZulu shall be the official South African languages at national level, and conditions shall be created for their development and for the promotion of their equal use and enjoyment.

(2) Rights relating to language and the status of languages existing at the commencement of this Constitution shall not be diminished, and provision shall be made by an Act of

Parliament for rights relating to language and the status of languages existing only at regional level, to be extended nationally in accordance with the principles set out in

subsection (9).

(3) Wherever practicable, a person shall have the right to use and to be addressed in his or her dealings with any public administration at the national level of government in any

official South African language of his or her choice.

(4) Regional differentiation in relation to language policy and practice shall be permissible.

(5) A provincial legislature may, by a resolution adopted by a majority of at least two-thirds of all its members, declare any language referred to in subsection (1) to be an official language for the whole or any part of the province and for any or all powers and functions within the competence of that legislature, save that neither the rights relating to language nor the status of an official language as existing in any area or in relation to any function at the time of the commencement of this Constitution, shall be diminished.

(6) Wherever practicable, a person shall have the right to use and to be addressed in his or her dealings with any public administration at the provincial level of government in any one of the official languages of his or her choice as contemplated in subsection (5).

(7) A member of Parliament may address Parliament in the official South African language of his or her choice.

(8) Parliament and any provincial legislature may, subject to this section, make provision by legislation for the use of official languages for the purposes of the functioning of government, taking into account questions of usage, practicality and expense.

(9) Legislation, as well as official policy and practice, in relation to the use of languages at any level of government shall be subject to and based on the provisions of this section and the following principles:

(a) The creation of conditions for the development and for the promotion of the equal use and enjoyment of all official South African languages;

(b) the extension of those rights relating to language and the status of languages which at the commencement of this Constitution are restricted to certain regions;

(c) the prevention of the use of any language for the purposes of exploitation, domination or division;

(d) the promotion of multi-lingualism and the provision of translation facilities;

(e) the fostering of respect for languages spoken in the Republic other than the official languages, and the encouragement of their use in appropriate circumstances; and

(f) the non-diminution of rights relating to language and the status of languages existing at the commencement of this Constitution.

(10)(a) Provision shall be made by an Act of Parliament for the establishment by the Senate of an independent Pan South African Language Board to promote respect for the principles referred to in Subsection (9) and to further the development of the official South African languages.

(b) The Pan South African Language Board shall be consulted, and be given the opportunity to make recommendations, in relation to any proposed legislation contemplated in this section.

(c) The Pan South African Language Board shall be responsible for promoting respect for and the development of German, Greek, Gujerati, Hindi, Portuguese, Tamil, Telegu,

Urdu and other languages used by communities in South Africa, as well as Arabic, Hebrew and Sanskrit and other languages used for religious purposes.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 31 Language and culture:

Every person shall have the right to use the language and to participate in the cultural life of his or her choice.

Constitution of the Republic of South Africa Act 200 of 1993, Section 71 Constitutional Principles and certification:

(1) A new constitutional text shall-

(a) comply with the Constitutional Principles contained in Schedule 4; and

(b) be passed by the Constitutional Assembly in accordance with this Chapter.

Constitution of the Republic of South Africa Act 200 of 1993, Section 74 Amendments relating to this Chapter and Schedule 4:

(1) No amendment or repeal of-

(a) this section or the Constitutional Principles set out in Schedule 4; or

(b) any other provision of this Chapter in so far as it relates to-

(i) the Constitutional Principles; or

(ii) the requirement that the new constitutional text shall comply with the Constitutional Principles, or that such text shall be certified by the Constitutional Court as being in compliance therewith, shall be permissible.

(2) The other provisions of this Chapter may be amended by the Constitutional Assembly by resolution of a majority of at least two-thirds of all its members.

Constitution of the Republic of South Africa Act 200 of 1993, Schedule 4, Article XI:

The diversity of language and culture shall be acknowledged and protected, and conditions for their promotion shall be encouraged.

National Peace Accord, Chapter 5 Measures to facilitate socio-economic reconstruction and development:

5.1 Reconstruction and development projects must actively involve the affected communities. Through a process of inclusive negotiations involving recipients, experts and donors, the community must be able to conceive, implement and take responsibility for projects in a co-ordinated way as close to the grassroots as possible. In addition reconstruction and development must facilitate the development of the economic and human resources of the communities concerned.

5.2 Projects at a local level require the co-operation of all members of the community irrespective of their political affiliation. The people within local communities must see local organisations working together on the ground with common purpose. Parties with constituency support in an area must commit themselves to facilitating such an approach to development projects.

5.3 Reconstruction projects must work on the ground at local level. This requires a combined effort by all political organisations and affected parties to raise the required level of capital and human resources for development. Public and private funds will have to be mobilised for this purpose.

5.4 Sustainable development implies that all individuals must be assisted and encouraged to accept responsibility for their socio-economic well-being. Each actor must define and accept his/her role and there must be an acceptance of co-responsibility for and co-determination of socio-economic development.

5.5 This development initiative should in no way abrogate the right and duty of governments to continue their normal development activity, except that in doing so they should be sensitive to the spirit and contents of any agreement that may be reached.

5.6 The parties to this process commit themselves to facilitating the rapid removal of political, legislative and administrative obstacles to development and economic growth.

5.7 The National Peace Committee and the Regional Dispute Resolution Committees will establish permanent subcommittees on socio-economic reconstruction and development.

5.8 Both the national and regional sub-committees defined above could establish advisory and consulting groups to facilitate their work.

5.9 The functions of these sub-committees would be to:

5.9.1 assist the peace structures in regard to socio-economic reconstruction and development;

5.9.2 take initiatives to implement the principles outlined above and to deal with the issues set out hereunder;

5.9.3 the combined inputs of the sub-committees participants would be to facilitate, co-ordinate and expedite reconstruction and development in terms of the principles outlined above.

5.10 The general guideline on issues to be dealt with is to move from immediate issues related to violence and the peace process toward pre-emption of violence and then toward integrating into the overall need for socio-economic development.

5.11 The sub-committees should identify areas at community level where they could begin to facilitate the co-ordination of the following issues:

– reconstruction of damaged property;

– reintegration of displaced persons into the community;

– expansion of infrastructure to assist in consolidating the peace process; and

– community involvement in the maintenance and improvement of existing community facilities and the environment.

5.12 The sub-committees should facilitate crisis assistance that will link to socio-economic development in the following areas:

– dealing with the immediate effects of violence and the resultant social effects, displaced persons problem and homelessness; and

– where infrastructure is itself a spark to violence, eg. water, electricity, transportation, schools, etc.

5.13 In addressing the above issues attention will have to be paid to:

– the equitable allocation of state resources, including state-funded development agencies (physical and financial) for both public and community-based initiatives;

– mobilisation of additional resources – both public and private;

– the cumbersome nature of governmental structures in the provision of resources and services;

– the position of the very poor and marginalised groups;

– land, its accessibility and use;

– basic housing;

– provision of basic services;

– education;

– health and welfare;

– job creation and unemployment; and

– the availability of land for housing and basis services.

5.14 The sub-committees should identify potential flash points and co-ordinate socio-economic development that will defuse tension eg. squatter settlements; squatter settlement-township interfaces; hostels; hostel-township interfaces; provision and maintenance of basis services and rural resource constraints. The sub-committees should identify areas of socio-economic development that would prevent violence.

5.15 The sub-committee would attempt to ensure that overall socio-economic development is cognisant of the need to reinforce the peace process and defuse the potential for violence.

Interim Constitution (1993)

CHAPTER 3: FUNDAMENTAL RIGHTS

26 Economic activity

(1) Every person shall have the right freely to engage in economic activity and to pursue a livelihood anywhere in the national territory.

(2) Subsection (1) shall not preclude measures designed to promote the protection or the improvement of the quality of life, economic growth, human development, social justice, basic conditions of employment, fair labour practices or equal opportunity for all, provided such measures are justifiable in an open and democratic society based on freedom and equality.

CHAPTER 8 The Public Protector, Human Rights Commission, Commission on Gender Equality and Restitution of Land Rights

Commission on Gender Equality

119 Establishment

(1) There shall be a Commission on Gender Equality, which shall consist of a chairperson and such number of members as may be determined by an Act of Parliament.

(2) The Commission shall consist of persons who are fit and proper for appointment, South African citizens and broadly representative of the South African community.

(3) The object of the Commission shall be to promote gender equality and to advise and to make recommendations to Parliament or any other legislature with regard to any laws or proposed legislation which affects gender equality and the status of women.

120 Composition and functioning

The Act of Parliament referred to in section 119 shall provide for the composition, powers, functions and functioning of the Commission on Gender Equality and for all other matters in connection therewith. [S. 120 amended by s. 9 of Act 13 of 1994.]

Restitution of Land Rights

121 Claims

(1) An Act of Parliament shall provide for matters relating to the restitution of land rights, as envisaged in this section and in sections 122 and 123.

(2) A person or a community shall be entitled to claim restitution of a right in land from the state if-

(a)such person or community was dispossessed of such right at any time after a date to be fixed by the Act referred to in subsection (1); and

(b)such dispossession was effected under or for the purpose of furthering the object of a law which would have been inconsistent with the prohibition of racial discrimination contained in section 8(2), had that section been in operation at the time of such dispossession.

(3) The date fixed by virtue of subsection (2) (a) shall not be a date earlier than 19 June 1913.

(4) (a) The provisions of this section shall not apply to any rights in land expropriated under the Expropriation Act, 1975 (Act 63 of 1975), or any other law incorporating by reference that Act, or the provisions of that Act with regard to compensation, if just and equitable compensation as contemplated in section 123 (4) was paid in respect of such expropriation.

(b) In this section `Expropriation Act, 1975′ shall include any expropriation law repealed by that Act.

(5) No claim under this section shall be lodged before the passing of the Act contemplated in subsection (1).

(6) Any claims under subsection (2) shall be subject to such conditions, limitations and exclusions as may be prescribed by such Act, and shall not be justiciable by a court of law unless the claim has been dealt with in terms of section 122 by the Commission established by that section.

122 Commission

(1) The Act contemplated in section 121 (1) shall establish a Commission on Restitution of Land Rights, which shall be competent to-

(a)investigate the merits of any claims;

(b)mediate and settle disputes arising from such claims;

(c)draw up reports on unsettled claims for submission as evidence to a court of law and to present any other relevant evidence to the court; and

(d)exercise and perform any such other powers and functions as may be provided for in the said Act.

(2) The procedures to be followed for dealing with claims in terms of this section shall be as prescribed by or under the said Act.

123 Court Orders

(1) Where a claim contemplated in section 121 (2) is lodged with a court of law and the land in question is-

(a)in the possession of the state and the state certifies that the restoration of the right in question is feasible, the court may, subject to subsection (4), order the state to restore the relevant right to the claimant; or

(b)in the possession of a private owner and the state certifies that the acquisition of such land by the state is feasible, the court may, subject to subsection (4), order the state to purchase or expropriate such land and restore the relevant right to the claimant.

(2) The court shall not issue an order under subsection (1) (b) unless it is just and equitable to do so, taking into account all relevant factors, including the history of the dispossession, the hardship caused, the use to which the property is being put, the history of its acquisition by the owner, the interests of the owner and others affected by any expropriation, and the interests of the dispossessed: Provided that any expropriation under subsection (1) (b) shall be subject to the payment of compensation calculated in the manner provided for in section 28 (3).

(3) If the state certifies that any restoration in terms of subsection (1) (a) or any acquisition in terms of subsection (1) (b) is not feasible, or if the claimant instead of the restoration of the right prefers alternative relief, the court may, subject to subsection (4), order the state, in lieu of the restoration of the said right-

(a)to grant the claimant an appropriate right in available alternative state-owned land designated by the state to the satisfaction of the court, provided that the state certifies that it is feasible to designate alternative state-owned land;

(b)to pay the claimant compensation; or

(c)to grant the claimant any alternative relief.

(4) (a) The compensation referred to in subsection (3) shall be determined by the court as being just and equitable, taking into account the circumstances which prevailed at the time of the dispossession and all such other factors as may be prescribed by the Act referred to in section 121 (1), including any compensation that was paid upon such dispossession.

(b) If the court grants the claimant the relief contemplated in subsection (1) or (3), it shall take into account, and, where appropriate, make an order with regard to, any compensation that was paid to the claimant upon the dispossession of the right in question.

CHAPTER 10: LOCAL GOVERNMENT

175 Powers and functions of local government

(3) A local government shall, to the extent determined in any applicable law, make provision for access by all persons residing within its area of jurisdiction to water, sanitation, transportation facilities, electricity, primary health services, education, housing and security within a safe and healthy environment, provided that such services and amenities can be rendered in a sustainable manner and are financially and physically practicable.

CHAPTER 15: GENERAL AND TRANSITIONAL PROVISIONS

247 Special provisions regarding existing educational institutions

(4) In order to ensure an acceptable quality of education, the responsible government shall provide funds to departmental, community-managed or state-aided primary or secondary schools on an equitable basis.

Schedule 4

CONSTITUTIONAL PRINCIPLES

(b) in respect of aspects of government dealing with specific socio-economic and cultural needs and the general well-being of the inhabitants of the province.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 5, Section 68 Constitution-making Body:

(1) The National Assembly and the Senate, sitting jointly for the purposes of this Chapter, shall be the Constitutional Assembly.

(2) The Constitutional Assembly shall draft and adopt a new constitutional text in accordance with this Chapter.

(3) (a) The first sitting of the Constitutional Assembly shall be convened by the President of the Senate not later than seven days as from the first sitting of the Senate under this Constitution.

(b) Any subsequent sittings of the Constitutional Assembly shall be convened by the Chairperson of the Constitutional Assembly after consultation with the Speaker and the President of the Senate.

(4) Subject to the rules and orders contemplated in section 70 and save where clearly inappropriate, sections 55 and 56 and the provisions of this Constitution with regard to joint sittings of the National Assembly and the Senate shall apply mutatis mutandis in respect of the Constitutional Assembly.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 5, Section 69 Chairperson and Deputy Chairperson:

(1) At its first sitting and before proceeding to dispatch any other business, the Constitutional Assembly, with the President of the Senate presiding, shall elect one of the members of the Constitutional Assembly to be the Chairperson and another of its members to be the Deputy Chairperson of the Constitutional Assembly.

(2) The provisions of Schedule 5 shall apply mutatis mutandis in respect of the election of the Chairperson and the Deputy Chairperson of the Constitutional Assembly.

(3) The Chairperson shall be vested with all powers and functions assigned to him or her under this Constitution, an Act of Parliament and the rules and orders.

(4) Section 49 (4) to (10) shall apply mutatis mutandis in respect of the Chairperson and Deputy Chairperson of the Constitutional Assembly, and in any such application references in the said sections to the Senate and a senator shall be construed as references to the Constitutional Assembly and a member of the Constitutional Assembly, respectively.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 5, Section 70 Rules and orders:

(1) The Constitutional Assembly 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 the Constitutional Assembly.

Constitution of the Republic of South Africa Act 200 of 1993, Section 71 Constitutional Principles and certification:

(1) A new constitutional text shall-

(a) comply with the Constitutional Principles contained in Schedule 4; and

(b) be passed by the Constitutional Assembly in accordance with this Chapter.

(2) The new constitutional text passed by the Constitutional Assembly, or any provision thereof, shall not be of any force and effect unless the Constitutional Court has certified that all the provisions of such text comply with the Constitutional Principles referred to in subsection (1) (a).

(3) A decision of the Constitutional Court in terms of subsection (2) certifying that the provisions of the new constitutional text comply with the Constitutional Principles, 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.

(4) During the course of the proceedings of the Constitutional Assembly any proposed draft of the constitutional text before the Constitutional Assembly, or any part or provision of such text, shall be referred to the Constitutional Court by the Chairperson if petitioned to do so by at least one fifth of all the members of the Constitutional Assembly, in order to obtain an opinion from the Court as to whether such proposed text, or part or provision thereof, would, if passed by the Constitutional Assembly, comply with the Constitutional Principles.

Constitution of the Republic of South Africa Act 200 of 1993, Section 72 Appointment of commissions, committees and bodies:

(1) The Constitutional Assembly shall, in addition to appointing committees of its members, be competent to appoint any commissions, technical committees and other advisory bodies to assist it in the performance of its functions.

(2) The Constitutional Assembly shall, subject to subsection (3), appoint an independent panel of seven South African citizens being recognised constitutional experts, not being members of Parliament or any other legislature and not holding office in any political party, to advise it, or the Chairperson, on matters pertaining to its functions, and to perform such other tasks as are provided for in this Constitution.

(3) A majority of at least two-thirds of all the members of the Constitutional Assembly shall be required for the appointment of the panel of constitutional experts, and, in the event of such majority not being achieved, a panel of constitutional experts complying with the requirements mentioned in subsection (2) and consisting of a nominee of each party which holds at least 40 seats in the Constitutional Assembly and wishes to make such a nomination, shall be appointed.

Constitution of the Republic of South Africa Act 200 of 1993, Section 73 Adoption of new constitutional text:

(1) The Constitutional Assembly shall pass the new constitutional text within two years as from the date of the first sitting of the National Assembly under this Constitution.

(2) For the passing of the new constitutional text by the Constitutional Assembly, a majority of at least two-thirds of all the members of the Constitutional Assembly shall be required: Provided that provisions of such text relating to the boundaries, powers and functions of provinces shall not be considered passed by the Constitutional Assembly unless approved also by a majority of two-thirds of all the members of the Senate.

(3) If the Constitutional Assembly fails to pass a proposed draft of the new constitutional text in accordance with subsection (2), but such draft is supported by a majority of all its members, such proposed draft shall be referred by the Chairperson to the panel of constitutional experts referred to in section 72 (2) for its advice, to be given within 30 days of such referral, on amendments to the proposed draft, within the framework of the Constitutional Principles, which might secure the support required in terms of subsection (2).

(4) An amended draft text unanimously recommended by the panel of constitutional experts and submitted to the Constitutional Assembly within the said period of 30 days, shall be considered by the Constitutional Assembly, and if passed in accordance with subsection (2), it shall become the Constitution of the Republic of South Africa.

(5) Should the panel of constitutional experts fail to submit within the said period of 30 days to the Constitutional Assembly an amended draft text which is unanimously recommended by the panel, or should such an amended draft text not be passed by the Constitutional Assembly in accordance with subsection (2), any proposed draft text before the Constitutional Assembly may be approved by it by resolution of a majority of its members for the purposes of subsection (6).

(6) A text approved under subsection (5) shall, after it has been certified by the Constitutional Court in terms of section 71 (2), be referred by the President for a decision by the electorate by way of a national referendum.

(7) The question put before the electorate in the referendum shall be the acceptance or rejection of the text approved under subsection (5).

(8) The text presented to the electorate in the referendum shall, if approved by a majority of at least 60 per cent of the votes cast in the referendum and subject to subsection (13), become the Constitution of the Republic of South Africa.

(9) If the relevant text is not approved in the referendum in accordance with subsection (8), or if a new constitutional text is not passed in terms of this Chapter within the period of two years referred to in subsection (1), the President shall dissolve Parliament by proclamation in the Gazette within 14 days after the referendum or the expiry of the said period, whereupon an election contemplated in section 39 (1) (a) shall be held.

(10) The Constitutional Assembly as constituted after such an election, shall pass the new constitutional text within a period of one year as from the date of its first sitting after such election.

(11) For the passing of the new constitutional text referred to in subsection (10) by the Constitutional Assembly, a majority of at least 60 per cent of all the members of the Constitutional Assembly shall be required: Provided that provisions of such text relating to the boundaries, powers and functions of provinces shall not be considered passed by the Constitutional Assembly unless approved also by a majority of at least 60 per cent of all the members of the Senate.

(12) The provisions of subsections (3) to (9) of this section and the other sections of this Chapter shall apply mutatis mutandis in respect of the Constitutional Assembly referred to in subsection (10) of this section.

(13) A new constitutional text adopted in terms of this Chapter shall be assented to by the President and shall upon its promulgation be the Constitution of the Republic of South Africa.

Constitution of the Republic of South Africa Act 200 of 1993, Section 74 Amendments relating to this Chapter and Schedule 4:

(1) No amendment or repeal of-

(a) this section or the Constitutional Principles set out in Schedule 4; or

(b) any other provision of this Chapter in so far as it relates to-

(i) the Constitutional Principles; or

(ii) the requirement that the new constitutional text shall comply with the Constitutional Principles, or that such text shall be certified by the Constitutional Court as being in compliance therewith, shall be permissible.

(2) The other provisions of this Chapter may be amended by the Constitutional Assembly by resolution of a majority of at least two-thirds of all its members.

Record of Understanding (26 September 1992)

Progress will be reported to the Goldstone Commission and the National Peace Secretariat. United Nations observers may witness the progress in co-operation with the Goldstone Commission and the National Peace Secretariat.

(Note: This provision was not mentioned in the interim constitution)