The Constitution

The Constitution

Similarities to Interim Const.
1. Basic rights - Bill of Rights
2. Universal adult suffrage
3. Supremacy of the Constitution & rule of law
4. Non-racialism & non-sexism
Co-operative government
1. 3 Distinct, interrelated spheres of government at national, provincial, & local levels.
2. Nine provinces retained.
3. Functions of government exercised at national level, but decentralised to levels closer to people.
Legislative authority
1. National - Parliament
  1. National Assembly
    1. 350-400 members; most NB; proportional representation.
  2. National Council of Provinces
    1. 10 delegates from each province (9 delegations).
2. Provincial
  1. Provincial legislature: 30-80 members.
3. Nature of legislative authority
  1. Parliament can pass legislation on any matter, except matters classed as 'function areas of exclusive provincial competence' (Sch 5).
  2. National legislature intervene only if: national security, economic unity, essential national standards, prevent prejudice of one province to another.
  3. Concurrent competence (Sch 4) - Education, housing, public transport, welfare.
4. Local sphere
  1. Municipalities; elect members of municipal councils - pass by-laws. National/provincial legislation ensure effective performance of municipal functions.
5. Approval of national bills:
  1. Approval by National Assembly & NCOP
  2. Ordinary bill not affecting provinces: Majority in NA & 5/9 delegations in NCOP. If Council refuses bill, NA reconsider, passed again, submitted directly for Presidential assent.
  3. Ordinary bill affecting provinces: Majority of NA, 5 provinces (NCOP). If rejected, mediation committee, 30 days for mediation between 18 members; if no agreement, NA pass bill with 2/3.
  4. Bill amending Const.:
    1. 75% of NA, supporting vote of at least 6 provinces in Council. Required for change in S1 of Const.
    2. Support of at least 2/3 of NA, supporting vote of at least 6 provinces in Council. Required to amend Bill of Rights.
    3. Any other part; 2/3 support of NA; support of 6 provinces in Council only for provincial matters.
6. Public participation
  1. NA, NCOP & provincial legislatures must facilitate public involvement (public aware of legislation).
  2. Doctors for Life v Speaker of the National Assembly; failure of Council to invite written submissions & hold public hearings (CC).
Executive Authority
1. National, provincial, local level
2. President: head of national executive; elected by NA; appoints Deputy President & Ministers. Together = Cabinet.
3. Provincial Premier: head of provincial executive; elected by Provincial Legislature; appoints 5-10 of PL to provincial Executive Council = Members of Executive Council (MECs).
4. Local: municipal councils; perform legislative & executive functions.
Judicial Authority
1. Courts independent, apply law impartially without fear, favour, or prejudice. No person may interfere with functioning of courts. Court decisions bind all persons & organs of state.
2. CC judges
  1. CC consists of 11 judges: Chief Justice, Deputy Chief Justice, 9 judges.
  2. Who? Practising lawyers, academics, judges of HC or SCA may be appointed.
  3. At least 4 CC judges must have been judges when appointed to CC.
  4. President appoints members of Court from list of names submitted by Judicial Service Commission (JSC).
3. JSC
  1. Chief Justice, presides at meetings of the Commission.
  2. President of the Supreme Court of Appeal
  3. 1 Judge President designated by the Judges President.
  4. Cabinet member responsible for admin. of justice, or alternate
  5. 2 Practising advocates nominated from within profession as whole, appointed by President.
  6. 2 Practising attorneys nominated from within profession, appointed by President.
  7. One teacher of law designated by teachers of law at S.A. universities
  8. 6 Persons designated by NA from its members, at least 3 from opposition parties represented in Assembly.
  9. 4 Permanent delegates to NCOP designated together by Council with supporting vote of at least 6 prov.
  10. 4 Persons designated by President after consulting leaders of all parties in NA.
  11. Matters relating to HC, Judge President of that Court & Premier of province, or alternate
4. Other judges
  1. President appoints judges of other courts on advice of JSC. Acting judges appointed by President on recommendation of Minister of Justice, acting with concurrence with Chief Justice.
  2. Minister appoints acting judges to other courts after consulting senior judge of that court.
  3. Judges appointed until they reach age 75. CC judges - non-renewable term of 15 years, retire at 75.
5. Removal of judge
  1. Removed if JSC finds that he/she suffers from incapacity, is grossly incompetent, guilty of gross misconduct. NA approve removal by 2/3 maj.

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