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The Constitution of South Africa is the supreme
law Law is a system of rules created and enforced through social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been variously descr ...
of the Republic of
South Africa South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. With over 59 million people, it is the world's 23rd-most populous nation and covers an area of . South Africa has three capital cities: e ...
. It provides the legal foundation for the existence of the
republic A republic ( la, res publica, links=yes, meaning "public affair") is a form of government in which "power is held by the people and their elected representatives". In republics, the country is considered a "public matter", not the private concern ...
, it sets out the
rights Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical theory. ...
and
duties A duty (from "due" meaning "that which is owing"; fro, deu, did, past participle of ''devoir''; la, debere, debitum, whence "debt") is a commitment or expectation to perform some action in general or if certain circumstances arise. A duty may ar ...
of its citizens, and defines the structure of the
Government A government is the system or group of people governing an organized community, generally a state. In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...
. The current
constitution A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these principl ...
, the country's fifth, was drawn up by the
Parliament In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. The ...
elected in 1994 in the
South African general election, 1994 General elections were held in South Africa between 26 and 29 April 1994. The elections were the first in which citizens of all races were allowed to take part, and were therefore also the first held with universal adult suffrage. The election was ...
. It was promulgated by
President President most commonly refers to: *President (corporate title) *President (education), a leader of a college or university *President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese full- ...
Nelson Mandela Nelson Rolihlahla Mandela (; ; 18 July 1918 – 5 December 2013) was a South African anti-apartheid revolutionary, political leader and philanthropist who served as President of South Africa from 1994 to 1999. He was the country's firs ...

Nelson Mandela
on 18 December 1996 and came into effect on 4 February 1997, replacing the
Interim ConstitutionA provisional constitution, interim constitution or transitional constitution is a constitution intended to serve during a transitional period until a permanent constitution is adopted. The following countries currently have, or have had in the past, ...
of 1993. The first constitution was enacted by the
South Africa Act 1909 The South Africa Act 1909 was an Act of the British Parliament which created the Union of South Africa from the British colonies of the Cape of Good Hope, Natal, Orange River Colony, and Transvaal. The Act also made provisions for admitting Rhodes ...
, the longest-lasting to date. Since
1961 As ''MAD Magazine'' pointed out on its cover for the March 1961 issue, this was the first "upside-up" year — i.e., one in which the numerals that form the year look the same as when the numerals are rotated upside down, a strobogrammatic numb ...
, the constitutions have promulgated a republican form of government. Since 1996, the Constitution has been amended by seventeen amendment acts. The Constitution is formally entitled the "Constitution of the Republic of South Africa, 1996." It was previously also numbered as if it were an
Act of Parliament Acts of parliament, sometimes referred to as primary legislation, are texts of law passed by the legislative body of a jurisdiction (often a parliament or council). In most countries, acts of parliament begin as a bill, which the legislature votes ...
—Act No. 108 of 1996—but, since the passage of the Citation of Constitutional Laws Act, neither it nor the acts amending it are allocated act numbers.


History


Previous Constitutions of South Africa

The
South Africa Act 1909 The South Africa Act 1909 was an Act of the British Parliament which created the Union of South Africa from the British colonies of the Cape of Good Hope, Natal, Orange River Colony, and Transvaal. The Act also made provisions for admitting Rhodes ...
, an act of the
Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown dependencies and the British overseas territories. It alone possesses legislative supremacy and thereby ultimate power over all other politic ...
, unified four British colonies
Cape Colony The Cape Colony ( nl, Kaapkolonie), also known as the Cape of Good Hope, was a British colony in present-day South Africa named after the Cape of Good Hope. The British colony was preceded by an earlier Corporate colony that became a Dutch col ...
,
Transvaal Colony The Transvaal Colony () was the name used to refer to the Transvaal region during the period of direct British rule and military occupation between the end of the Second Boer War in 1902 when the South African Republic was dissolved, and the es ...
,
Orange River Colony The Orange River Colony was the British colony created after Britain first occupied (1900) and then annexed (1902) the independent Orange Free State in the Second Boer War. The colony ceased to exist in 1910, when it was absorbed into the Union o ...
and
Natal Colony The Colony of Natal was a British colony in south-eastern Africa. It was proclaimed a British colony on 4 May 1843 after the British government had annexed the Boer Republic of Natalia, and on 31 May 1910 combined with three other colonies to fo ...
into the
Union of South Africa The Union of South Africa ( nl, Unie van Zuid-Afrika; af, Unie van Suid-Afrika ) is the historical predecessor to the present-day Republic of South Africa. It came into being on 31 May 1910 with the unification of the Cape Colony, the Natal Colon ...
, a self-governing
dominion The word Dominion was used from 1907 to 1948 to refer to one of several self-governing colonies of the British Empire. "Dominion status" was formally accorded to Canada, Australia, New Zealand, Newfoundland, South Africa, and the Irish Free St ...
. The
Republic of South Africa Constitution Act, 1961 The Constitution of 1961 (formally the Republic of South Africa Constitution Act, 1961) was the fundamental law of South Africa for two decades. Under the terms of the constitution South Africa left the Commonwealth and became a republic. Legal ...
transformed the union into a republic, replacing the
Queen Queen may refer to: Monarchy * Queen regnant, a female monarch of a Kingdom ** List of queens regnant * Queen consort, the wife of a reigning king * Queen dowager, the widow of a king * Queen mother, a queen dowager who is the mother of a reignin ...
with a
State President The State President of the Republic of South Africa ( af, Staatspresident) was the head of state of South Africa from 1961 to 1994. The office was established when the country became a republic in 1961, and Queen Elizabeth II ceased to be monarc ...
, but otherwise leaving the system of government largely unchanged. By removing the last Commonwealth thresholds, however, the act made the then-apartheid government completely sovereign. In a referendum, the first national election with a solely white electorate, the Act was narrowly approved, with a substantial minority in the
Cape province The Province of the Cape of Good Hope ( af, Provinsie Kaap die Goeie Hoop), commonly referred to as the Cape Province ( af, Kaapprovinsie) and colloquially as The Cape ( af, Die Kaap), was a province in the Union of South Africa and subsequently the ...
and a strong majority in
Natal NATAL or Natal may refer to: Places * Natal, Rio Grande do Norte, a city in Brazil * Natal, South Africa (disambiguation), a region in South Africa ** Natalia Republic, a former country (1839–1843) ** Colony of Natal, a former British colony (18 ...
opposing it. The
Republic of South Africa Constitution Act, 1983 The Constitution of 1983 (formally the Republic of South Africa Constitution Act, 1983) was South Africa's third constitution. It replaced the republican constitution that had been adopted when South Africa became a republic in 1961 and was in force ...
, again approved by a whites-only referendum, created the
Tricameral Parliament The Tricameral Parliament, officially the Parliament of the Republic, was the legislature of South Africa between 1984 to 1994, established by the South African Constitution of 1983, which gave a limited political voice to the country's Colour ...
, with separate houses representing
White White is the lightest color and is achromatic (having no hue). It is the color of fresh snow, chalk and milk, and is the opposite of black. White objects fully reflect and scatter all the visible wavelengths of light. White on television and ...
,
Coloured Coloureds ( af, Kleurlinge or ''Bruinmense'', lit. "Brown people") are a multiracial ethnic group native to Southern Africa who have ancestry from more than one of the various populations inhabiting the region, including Khoisan, Bantu, Whites, ...
and Indian people but without representation for
black people Black people is a racialized classification of people, usually a political and skin color-based category for specific populations with a mid to dark brown complexion. Not all people considered "black" have dark skin; in certain countries, often ...
. The figurehead State President and executive
Prime Minister#REDIRECT Prime minister#REDIRECT Prime minister {{R from other capitalisation ...
{{R from other capitalisation ...
were merged into an executive State President, chosen by parliament. This contradiction remains to date and is nearly unique to South Africa (one exception being neighbouring
Botswana Botswana (, also ), officially the Republic of Botswana ( tn, Lefatshe la Botswana, label=Setswana; Kalanga: ''Hango yeBotswana''), is a landlocked country in Southern Africa. Botswana is topographically flat, with up to 70 percent of its terri ...
). The
Constitution of the Republic of South Africa, 1993 The Interim Constitution was the fundamental law of South Africa from the first non-racial general election on 27 April 1994 until it was superseded by the final constitution on 4 February 1997. As a transitional constitution it required the newly ...
or Interim Constitution was introduced at the end of
apartheid Apartheid (South African English: ; , segregation; lit. "aparthood") was a system of institutionalised racial segregation that existed in South Africa and South West Africa (now Namibia) from 1948 until the early 1990s. Apartheid wa ...
to govern the period of transition. It introduced, for the first time, the framework of a liberal democracy,
universal adult suffrage Universal suffrage (also called universal franchise, general suffrage, and common suffrage of the common man) gives the right to vote to all adult citizens, regardless of wealth, income, gender, social status, race, ethnicity, political stance, or ...
,
constitutional supremacy A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these principl ...
and a
bill of rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and priva ...
.


Negotiations

An integral part of the
negotiations to end apartheid in South Africa The apartheid system in South Africa was ended through a series of negotiations between 1990 and 1993 and through unilateral steps by the de Klerk government. These negotiations took place between the governing National Party, the African National ...
was the creation of a new constitution. One of the major disputed issues was the process by which such a constitution would be adopted. The
African National Congress The African National Congress (ANC) is the Republic of South Africa's governing political party. It has been the ruling party of post-apartheid South Africa since the election of Nelson Mandela in the 1994 election, winning every election si ...
(ANC) insisted that it should be drawn up by a democratically elected
constituent assembly#REDIRECT Constituent assembly {{R from other capitalisation ...
, while the governing National Party (NP) feared that the rights of minorities would not be protected in such a process, and proposed instead that the constitution be negotiated by consensus between the parties and then put to a
referendum A referendum (plural: referendums or less commonly referenda) is a direct and universal vote in which an entire electorate is invited to vote on a particular proposal and can have nationwide or local forms. This may result in the adoption of a new ...

referendum
. Formal negotiations began in December 1991 at the
Convention for a Democratic South Africa The apartheid system in South Africa was ended through a series of negotiations between 1990 and 1993 and through unilateral steps by the de Klerk government. These negotiations took place between the governing National Party, the African National ...
(CODESA). The parties agreed on a process whereby a negotiated transitional constitution would provide for an elected constitutional assembly to draw up a permanent constitution. The CODESA negotiations broke down, however, after the second plenary session in May 1992. One of the major points of dispute was the size of the
supermajority A supermajority, supra-majority, qualified majority or special majority, is a requirement for a proposal to gain a specified level of support which is greater than the threshold of more than one-half used for a majority. Supermajority rules in a ...
that would be required for the assembly to adopt the constitution: The NP wanted a 75 per cent requirement, which would effectively have given it a veto. In April 1993, the parties returned to negotiations, in what was known as the Multi-Party Negotiating Process (MPNP). A committee of the MPNP proposed the development of a collection of "constitutional principles" with which the final constitution would have to comply, so that basic freedoms would be ensured and minority rights protected, without overly limiting the role of the elected constitutional assembly. The parties to the MPNP adopted this idea and proceeded to draft the Interim Constitution of 1993, which was formally enacted by
Parliament In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. The ...
and came into force on 27 April 1994.


Interim Constitution

The Interim Constitution provided for a Parliament made up of two houses: a 400-members
National Assembly In politics, a national assembly is either a unicameral legislature, the lower house of a bicameral legislature, or both houses of a bicameral legislature together. In the English language it generally means "an assembly composed of the repres ...
, directly elected by
party-list proportional representation Poster for the European Parliament election 2004 in Italy, showing party lists Party-list proportional representation systems are a family of voting systems emphasizing proportional representation in elections in which multiple candidates are electe ...
, and a ninety-member
Senate The Curia Julia in the Roman Forum ">Roman_Forum.html" style="text-decoration: none;"class="mw-redirect" title="Curia Julia in the Roman Forum">Curia Julia in the Roman Forum A senate is a deliberative assembly, often the upper hou ...
, in which each of the nine
provinces A province is almost always an administrative division within a country or state. The term derives from the ancient Roman ''provincia'', which was the major territorial and administrative unit of the Roman Empire's territorial possessions outside ...
was represented by ten Senators, elected by the provincial legislature. The
Constitutional Assembly#REDIRECT Constituent assembly {{R from other capitalisation ...
consisted of both houses sitting together, and was responsible for drawing up a final constitution within two years. The adoption of a new constitutional text required a two-thirds supermajority in the Constitutional Assembly, as well as the support of two-thirds of senators on matters relating to provincial government. If a two-thirds majority could not be obtained, a constitutional text could be adopted by a simple majority and then put to a national referendum in which sixty per cent support would be required for it to pass. The Interim Constitution contained 34 constitutional principles with which the new constitution was required to comply. These included
multi-party democracy In political science, a multi-party system is a political system in which multiple political parties across the political spectrum run for national elections, and all have the capacity to gain control of government offices, separately or in coali ...
with regular elections and
universal adult suffrage Universal suffrage (also called universal franchise, general suffrage, and common suffrage of the common man) gives the right to vote to all adult citizens, regardless of wealth, income, gender, social status, race, ethnicity, political stance, or ...
, supremacy of the constitution over all other law, a quasi-
federal Federal or foederal (archaic) may refer to: Politics General *Federal monarchy, a federation of monarchies *Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...
system in place of
centralised government A centralized government (also united government) is one in which both executive and legislative power is concentrated centrally at the higher level as opposed to it being more distributed at various lower level governments. In a national context ...
, non-
racism Racism is the belief that groups of humans possess different behavioral traits corresponding to physical appearance and can be divided based on the superiority of one race over another.
and non-
sexism Sexism is prejudice or discrimination based on one's sex or gender. Sexism can affect anyone, but it primarily affects women and girls.There is a clear and broad consensus among academic scholars in multiple fields that sexism refers primari ...
, the protection of "all universally accepted fundamental rights, freedoms and
civil liberties#REDIRECT Civil liberties#REDIRECT Civil liberties {{Redirect category shell, 1= {{R from other capitalisation ...
{{Redirect category shell, 1= {{R from other capitalisation ...
," equality before the law, the
separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical ...
with an impartial
judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes and interprets, defends, and applies the law in legal cases. ...

judiciary
, provincial and local levels of government with democratic representation, and protection of the diversity of
language A language is a structured system of communication used by humans, including speech (spoken language), gestures (sign language) and writing. Most languages have a writing system composed of glyphs to inscribe the original sound or gesture and ...
s and
culture Culture () is an umbrella term which encompasses the social behavior and norms found in human societies, as well as the knowledge, beliefs, arts, laws, customs, capabilities, and habits of the individuals in these groups.Tylor, Edward. (1871). ...
s. The Bill of Rights, now in
Chapter Two of the Constitution of South Africa Chapter Two of the Constitution of South Africa contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa. The rights in the Bill apply to all law, including th ...
, was largely written by
Kader Asmal Abdul Kader Asmal (8 October 1934 – 22 June 2011) was a South African politician. He was a professor of human rights at the University of the Western Cape, chairman of the council of the University of the North and vice-president of the Afr ...
and
Albie Sachs Albert "Albie" Louis Sachs (born 30 January 1935) is an activist and a former judge on the Constitutional Court of South Africa. After having his arm blown off by a car-bomb in Mozambique due to his opposition to apartheid, he fled to the United ...
. The new constitutional text was to be tested against these principles by the newly established
Constitutional Court#REDIRECT Constitutional court#REDIRECT Constitutional court {{Redirect category shell, 1= {{R from other capitalisation ...
{{Redirect category shell, 1= {{R from other capitalisation ...

Constitutional Court. If the text complied with the principles, it would become the new constitution; if it did not, it would be referred back to the Constitutional Assembly.


Final text

The Constitutional Assembly engaged in a massive public participation programme to solicit views and suggestions from the public. As the deadline for the adoption of a constitutional text approached, however, many issues were hashed out in private meetings between the parties' representatives. On 8 May 1996, a new text was adopted with the support of 86 per cent of the members of the assembly, but in the '' First Certification'' judgment, delivered on 6 September 1996, the Constitutional Court refused to certify this text. The Constitutional Court identified a number of provisions that did not comply with the constitutional principles. Areas of non-compliance included failures to protect the right of employees to engage in collective bargaining; to provide for the constitutional review of ordinary statutes; to entrench fundamental rights, freedoms and civil liberties and to sufficiently safeguard the independence of the Public Protector and Auditor-General as well as other areas of non-compliance in relation to local government responsibilities and powers. The Constitutional Assembly reconvened and, on 11 October, adopted an amended constitutional text containing many changes relative to the previous text. Some dealt with the court's reasons for non-certification, while others tightened up the text. The amended text was returned to the Constitutional Court to be certified, which the court duly did in its ''Second Certification'' judgment, delivered on 4 December. The Constitution was signed by President Mandela on 10 December and officially published in the ''Government Gazette of South Africa, Government Gazette'' on 18 December. It did not come into force immediately; it was brought into operation on 4 February 1997, by a presidential proclamation, except for some financial provisions which were delayed until 1 January 1998. Since its adoption, the Constitution has been amended seventeen times; these amendments are described in a separate section Constitution of South Africa#Amendments, below.


Contents

The constitution consists of a preamble, fourteen chapters containing 244 sections, and eight schedules. Each chapter deals with a particular topic; the schedules contain ancillary information referred to in the main text.


Chapter 1: Founding Provisions

Chapter 1 enshrines in the constitution key national principles, defines the country's national flag, flag and national anthem, and specifies the official languages and principles of government language policy. It defines South Africa as "one, sovereign, democracy, democratic state" based on principles of human rights, constitutional supremacy, the rule of law and universal adult suffrage. The chapter contains a supremacy clause which establishes that all other law and actions are subject to the constitution.


Chapter 2: Bill of Rights

Chapter 2 is a
bill of rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and priva ...
which enumerates the civil and political rights, civil, political, economic, social and cultural rights, economic, social and cultural human rights of the people of South Africa. Most of these rights apply to anyone in the country, with the exception of the right to vote, the right to work and the right to enter the country, which apply only to citizens. They also apply to juristic persons to the extent that they are applicable, taking into account the nature of the right. The rights enumerated are: * Section 9: everyone is equal before the law and has right to equal protection and the benefit of the law. Prohibited grounds of discrimination include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, ageism, age, disability, religion, conscience, belief, culture, language and birth. * Section 10: the right to human dignity. * Section 11: the right to life * Section 12: the right to freedom and security of person, security of the person, including protection against arbitrary detention and detention without trial, the right to be protected against violence, freedom from torture, freedom from cruel, inhuman or degrading treatment, the right to bodily integrity, and reproductive rights. * Section 13: freedom from slavery, involuntary servitude, servitude or forced labour. * Section 14: the right to privacy, including protection against search and seizure, and the privacy of correspondence. * Section 15: freedom of thought and freedom of religion. * Section 16: freedom of speech and expression, including freedom of the press and academic freedom. Explicitly excluded are propaganda for war, incitement to violence and hate speech, advocacy of hatred based on race, ethnicity, gender or religion. * Section 17: freedom of assembly and the right to protest. * Section 18: freedom of association. * Section 19: the right to vote and
universal adult suffrage Universal suffrage (also called universal franchise, general suffrage, and common suffrage of the common man) gives the right to vote to all adult citizens, regardless of wealth, income, gender, social status, race, ethnicity, political stance, or ...
; the right to stand for public office; the right to free, fair and regular elections; and the right to form, join and political campaign, campaign for a political party. * Section 20: no citizen may be deprived of citizenship. * Section 21: freedom of movement, including the right to leave South Africa, the right of citizens to a passport and the right to enter South Africa. * Section 22: the right to choose a employment, trade, occupation or profession, although these may be regulated by law. * Section 23: labour rights, including the right to trade union, unionise and the right to strike. * Section 24: the right to a healthy environment protected. * Section 25: the right to property, limited in that property may only be expropriation, expropriated under a law of general application (not arbitrarily), for a public purpose and with the payment of compensation. * Section 26: the right to housing, including the right to due process with regard to court-ordered eviction and demolition. * Section 27: the rights to right to food, food, right to water, water, health care and social assistance, which the state must progressively realise within the limits of its resources. * Section 28: children's rights, including the right to a name and nationality, the right to family or parental care, the right to an adequate standard of living, right to a basic standard of living, the right to be protected from maltreatment and abuse, the protection from inappropriate child labour, the right not to be juvenile detention, detained except as a last resort, the paramountcy of the best interests of the child and the right to an independent lawyer in court cases involving the child, and the prohibition of the military use of children. * Section 29: the right to education, including a universal access to education, universal right to basic education. * Section 30: the right to use the language of one's choice and to right to science and culture, participate in the cultural life of one's choice. * Section 31: the right of cultural, religious or linguistic communities to enjoy their culture, practise their religion and use their language. * Section 32: the right of freedom of information, access to information, including all information held by the government. * Section 33: the right to justice in administrative action by the government. * Section 34: the right of access to the courts of South Africa, courts. * Section 35: the rights of arrested, detained and accused people, including the right to silence, protection against self-incrimination, the right to counsel and legal aid, the right to a fair trial, the presumption of innocence and the prohibition of double jeopardy and ex post facto law, ''ex post facto'' crimes. Section 36 allows the rights listed to be limited only by laws of general application, and only to the extent that the restriction is reasonable and justifiable in "an open and democratic society based on human dignity, equality and freedom."s 36(1). Section 37 allows certain rights to be limited during a state of emergency but places strict procedural limits on the declaration of states of emergency and provides for the rights of people detained as a result.


Chapter 3: Co-operative Government

Chapter 3 deals with the relationships between organs of government in the three "spheres"national, Provinces of South Africa, provincial and Municipalities of South Africa, local. It lays down a set of principles requiring them to co-operate in good faith and to act in the best interests of the people. It also requires them to attempt to dispute resolution, settle disputes amicably before resorting to the courts.


Chapter 4: Parliament

Chapter 4 defines the structure of
Parliament In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. The ...
, the legislative branch of the national government. Parliament consists of two houses, the
National Assembly In politics, a national assembly is either a unicameral legislature, the lower house of a bicameral legislature, or both houses of a bicameral legislature together. In the English language it generally means "an assembly composed of the repres ...
(the lower house), which is directly elected by the people, and the National Council of Provinces (the upper house), which is elected by the provincial legislature (South Africa), provincial legislatures. The Chapter defines the principles governing the election and dissolution of the houses, qualifications for membership of Parliament, quorum requirements, procedures for the election of presiding officers, and the powers and privileges and immunities of Parliament and its members. It lays down the process for enacting bill (proposed law), bills into law; different procedures are provided for constitutional amendments, ordinary bills not affecting provincial matters, ordinary bills affecting provincial matters, and money bills.


Chapter 5: The President and National Executive

Chapter 5 defines the structure of the national executive and the powers of the
President President most commonly refers to: *President (corporate title) *President (education), a leader of a college or university *President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese full- ...
. It provides for the election and removal of the President by the National Assembly, and limits a President to two five-year terms. It vests in him or her the powers of the head of state and head of government; it provides for the appointment of a Cabinet of South Africa, Cabinet by the President; and it provides for the accountability to Parliament of the President and Cabinet.


Chapter 6: Provinces

Chapter 6 establishes the nine provinces of South Africa and defines the powers and structure of the provincial governments. The boundaries of the provinces are defined by reference to Schedule 1A to the Constitution, which refers in turn to the boundaries of the districts of South Africa, metropolitan and district municipalities. In some respects, the chapter is a template which a province may modify to a limited extent by adopting its own provincial constitution. (The only province so far to have done this is the Western Cape.) The chapter provides for a unicameral provincial legislature (South Africa), legislature, a Premier (South Africa), Premier elected by the legislature as head of the provincial executive, and an Executive Council (South Africa), Executive Council appointed by the Premier as a provincial cabinet. The provincial government is given exclusive powers over certain matters, listed in Schedule 5, and powers concurrent with the national government over other matters, listed in Schedule 4. The chapter regulates the conflict between national and provincial legislation on the same topic, setting out the circumstances under which one or the other will prevail.


Chapter 7: Local Government

Chapter 7 sets out a framework for local government. It requires municipalities of South Africa, municipalities to be established for the whole territory of South Africa, and provides for three categories of municipalities, whereby some areas are governed by a single "Category A" municipal authority and others are governed by a two-level system with a larger "Category C" municipality containing multiple "Category B" municipalities. The municipalities are granted the power to administer certain matters listed in Schedules 4 and 5, and the executive and legislative authority is vested in the municipal council. The chapter requires municipal elections to be held every five years.


Chapter 8: Courts and Administration of Justice

Chapter 8 establishes the structure of the judiciary of South Africa, judicial system. It defines the hierarchy consisting of Magistrates' Courts of South Africa, Magistrates' Courts, the High Court of South Africa, High Court, the Supreme Court of Appeal of South Africa, Supreme Court of Appeal, and the
Constitutional Court#REDIRECT Constitutional court#REDIRECT Constitutional court {{Redirect category shell, 1= {{R from other capitalisation ...
{{Redirect category shell, 1= {{R from other capitalisation ...

Constitutional Court. It provides for the appointment of judges by the President on the advice of the Judicial Service Commission (South Africa), Judicial Service Commission and establishes a single National Prosecuting Authority responsible for all criminal prosecutions.


Chapter 9: State Institutions Supporting Constitutional Democracy

Chapter 9 creates a number of other commissions and offices to protect and support democracy and human rights. These are the Public Protector (an ombudsman), the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor-General (South Africa), Auditor-General, the Independent Electoral Commission (South Africa), Independent Electoral Commission and the Independent Communications Authority of South Africa, Independent Communications Authority.


Chapter 10: Public Administration

Chapter 10 lists values and principles for the administration of the civil service and establishes the Public Service Commission (South Africa), Public Service Commission to oversee it.


Chapter 11: Security Services

Chapter 11 establishes structures for civilian control of the South African National Defence Force, Defence Force, the South African Police Service, Police Service and the State Security Agency (South Africa), intelligence services. It makes the President the Commander-in-Chief of the defence force but places conditions on when and how it may be employed and requires regular reports to Parliament. The police service is placed under the control of the national government but gives provincial governments some power to administer and oversee policing.


Chapter 12: Traditional Leaders

Chapter 12 recognises the status and authority of traditional leaders and customary law in South Africa, customary law, subject to the Constitution. It allows for the creation of provincial houses of traditional leaders and a national council of traditional leaders. The Traditional leaders must have responsibilities in affairs and decision making of the municipality in order to build proper sustainable development to the people that resides on that municipality. Because we have Traditional leaders that don't have daily duties day in and day out; in short they must be part of mayoral council.


Chapter 13: Finance

Chapter 13 deals with public finance. It establishes a National Revenue Fund, from which money may be appropriated only by an act of Parliament, and Provincial Revenue Funds, from which money may only be appropriated by an act of the provincial legislature. It provides for an equitable distribution of national revenue to the provinces and municipalities, and grants provincial and local governments the powers to raise certain rates and taxes. It requires effective and transparent budgeting at all levels of government and gives the National Treasury (South Africa), National Treasury the power to oversee budgetary processes. It places some restrictions on government procurement and government borrowing. The chapter establishes the Financial and Fiscal Commission (South Africa), Financial and Fiscal Commission, to advise government on financial matters, and the South African Reserve Bank, Reserve Bank, to oversee the currency.


Chapter 14: General Provisions

The final chapter deals with transitional and incidental provisions. In particular, the first part deals with international law, providing that existing agreements binding South Africa will continue to bind it, and that new agreements (except those of a technical nature) will only be binding once approved by Parliament. It also provides that customary international law applies in South African unless it conflicts with national law, and that the courts must, where possible, interpret national law to be consistent with international law. The remainder of the chapter contains a miscellaneous collection of provisions, * allowing Parliament to enact Charters of Rights which expand on the Bill of Rights; * allowing recognition of the right of self-determination of communities within South Africa; * requiring public funding for political parties represented in national and provincial legislatures; * requiring that obligations imposed by the constitution be carried out without delay; * providing that some executive powers may be delegated by one organ of state to another; * defining certain terms used in the text of the constitution; and, * as the Constitution is published in all eleven languages of South Africa, official languages, providing that the English language, English text is authoritative in the event of a conflict. Chapter 14 also repeals the Interim Constitution of South Africa, Interim Constitution and refers to Schedule 6 to govern the process of transition to the new Constitution. Finally, it gives the Constitution its formal title, "Constitution of the Republic of South Africa, 1996," and defines the schedule for its commencement, under which the President set the date of commencement for most sections, although certain sections dealing with financial matters commenced only on 1 January 1998.


Schedules

* Schedule 1, referred to in Constitution of South Africa#Chapter 1: Founding Provisions, Chapter 1, describes the flag of South Africa, national flag. * Schedule 1A, referred to in Constitution of South Africa#Chapter 6: Provinces, Chapter 6, defines the geographical areas of the provinces, by reference to maps published by the Municipal Demarcation Board defining the districts of South Africa, metropolitan and district municipalities. * Schedule 2 contains the texts of the oaths or affirmation in law, solemn affirmations to be sworn by political office-holders and judges. * Schedule 3 describes the procedure for the election of the President by the National Assembly and the election of presiding officers by legislative bodies, as well as the formula whereby seats in the National Council of Provinces are to be allocated to political parties. * Schedule 4 lists the "functional areas" over which Parliament and the provincial legislatures have concurrent competence to legislate. * Schedule 5 lists the functional areas over which the provincial legislatures have exclusive competence to legislate. * Schedule 6 details the transitional arrangements by which institutions existing under the previous constitution were converted into the institutions established by the new constitution. It provides for the continuation of existing laws and the assignment of their administration to the provincial governments where appropriate. It also provides for certain sections of the old constitution to continue in force despite its repeal, and subject to amendments listed in the schedule. It also includes temporary amendments to the Constitution's own text which allowed the Government of National Unity to continue until the 1999 election. * Schedule 7 lists the laws repealed by the new constitution, these being the interim constitution and the ten amendments made to it.


Amendments

Section 74 of the Constitution provides that a bill (proposed law), bill to amend the Constitution can only be passed if at least two-thirds of the members of the
National Assembly In politics, a national assembly is either a unicameral legislature, the lower house of a bicameral legislature, or both houses of a bicameral legislature together. In the English language it generally means "an assembly composed of the repres ...
(that is, at least 267 of the 400 members) vote in favour of it. If the amendment affects provincial powers or boundaries, or if it amends the Bill of Rights, at least six of the nine provinces in the National Council of Provinces must also vote for it. To amend section 1 of the Constitution, which establishes the existence of South Africa as a sovereign, democratic state, and lays out the country's founding values, would require the support of three-quarters of the members of the National Assembly. There have been seventeen amendments since 1996.


First Amendment

The Constitution First Amendment Act (formerly the Constitution of the Republic of South Africa Amendment Act, 1997) was signed by the President on 28 August 1997 but had effect retroactively to 4 February 1997 when the constitution came into force. It had three provisions: * to provide that a person who serves as Acting President of the Republic more than once during a single presidential term only has to swear the oath of office the first time that they become Acting President. * to allow the President of the
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Constitutional Court to designate another judge to administer the oath of office to the President or Acting President, rather than administering it personally. * to extend the cut-off date for actions for which amnesty could be granted by the Truth and Reconciliation Commission (South Africa), Truth and Reconciliation Commission, changing it from 6 December 1993 to 11 May 1994. This last change allowed the TRC to deal with various violent events, particularly the Bophuthatswana coup d'état of 1994, Bophuthatswana ''coup d'état'' and its aftermath, that had occurred in the run-up to the South African general election, 1994, 1994 general elections.


Second Amendment

The Constitution Second Amendment Act (formerly the Constitution of the Republic of South Africa Amendment Act, 1998) came into force on 7 October 1998. It had five provisions: * to extend the term of office of municipal councils from four years to five years. * to extend certain deadlines in the process of transition to the post-apartheid system of local government. * to allow for the designation of alternates to replace members of the Judicial Service Commission (South Africa), Judicial Service Commission. * to give Parliament the ability to assign additional powers or functions to the Public Service Commission (South Africa), Public Service Commission. * to rename the Human Rights Commission to the South African Human Rights Commission.


Third Amendment

The Constitution Third Amendment Act (formerly the Constitution of the Republic of South Africa Second Amendment Act, 1998) came into force on 30 October 1998. It allowed for municipalities of South Africa, municipalities to be established across Provinces of South Africa, provincial boundaries by the agreement of the national and the relevant provincial governments. The changes it made were reversed in 2005 by the Twelfth Amendment.


Fourth and Fifth Amendments

The Constitution Fourth Amendment Act and Constitution Fifth Amendment Act (formerly the Constitution of the Republic of South Africa Amendment Act, 1999 and Constitution of the Republic of South Africa Second Amendment Act, 1999) came into force on 19 March 1999. They were passed as two separate amendments because the Fourth contained provisions affecting provincial government, which required the approval of the National Council of Provinces, while the Fifth did not. The Fourth Amendment: * clarified that elections to the provincial legislature (South Africa), provincial legislatures may be called either before or after the term of office of the previous legislature has expired. * modified the formula for the allocation of delegates' seats to parties in the National Council of Provinces. The Fifth Amendment: * clarified that elections to the
National Assembly In politics, a national assembly is either a unicameral legislature, the lower house of a bicameral legislature, or both houses of a bicameral legislature together. In the English language it generally means "an assembly composed of the repres ...
may be called either before or after the term of office of the previous Assembly has expired. * allowed the chairperson and deputy chairperson of the Financial and Fiscal Commission to be part-time members.


Sixth Amendment

The Constitution Sixth Amendment Act (formerly the Constitution of the Republic of South Africa Amendment Act, 2001) came into force on 21 November 2001. Its main effect was to give the title of "Chief Justice of South Africa" to the presiding judge of the Constitutional Court of South Africa, who had previously been titled "President of the Constitutional Court". The presiding judge of the Supreme Court of Appeal of South Africa, Supreme Court of Appeal (SCA), who had previously had the title of Chief Justice, became instead "President of the Supreme Court of Appeal". The deputy heads of each court were also renamed similarly. Consequentially many provisions of the Constitution had to be amended where they made reference to the President of the Constitutional Court. These changes were intended to clarify the structure of the Judiciary of South Africa, South African judiciary. Previously, the President of the Constitutional Court was responsible for various constitutional responsibilities, such as calling the first session of Parliament after an election and presiding over the election of the President of the Republic at that session, while the Chief Justice was responsible for judicial administration, including for example chairing the Judicial Service Commission (South Africa), Judicial Service Commission. These responsibilities were merged into a single post, reflecting the pre-eminence of the Constitutional Court at the apex of the court system. Other provisions of the amendment: * allowed the term of office of a Constitutional Court judgeusually twelve years or until the judge reaches the age of seventy, whichever is shorterto be extended by an Act of Parliament. * allowed the President to appoint two Deputy Ministers from outside the National Assembly, where previously Deputy Ministers had to be members of the Assembly. * allowed municipal councils to bind the authority of future successor councils, as security for a loan.


Seventh Amendment

The Constitution Seventh Amendment Act (formerly the Constitution of the Republic of South Africa Second Amendment Act, 2001) came into force on 26 April 2006, except for provisions affecting the Financial and Fiscal Commission which came into force on 1 December 2003. It made various amendments to provisions affecting the financial management of national and provincial government, including: * an extension of what is considered a "money bill" in the national
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and the provincial legislature (South Africa), provincial legislatures. * requiring that Division of Revenue Bills (bills dividing revenue between national, provincial and local government) can only be introduced to Parliament by the Minister of Finance (South Africa), Minister of Finance. * reducing the size of the Financial and Fiscal Commission from 22 members to nine members, by reducing the number of members chosen by the president from nine to two, and by replacing the nine members chosen by the nine provinces individually with three members chosen by the provinces collectively. * modifying the mechanisms whereby the national government can control the financial practices of the provincial governments.


Eighth, Ninth and Tenth Amendments

These amendments allowed legislators to Floor crossing (South Africa), cross the floor, that is, to resign from their political party and join a different party (or form a new party) without losing their elected position. This was not originally allowed because South African elections are based on
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in which voters choose a political party rather than an individual candidate. Floor crossing therefore means that the composition of the elected bodies no longer represents the preferences of voters. The Eighth and Ninth Amendments came into force on 20 June 2002, as did an ordinary act of Parliament called the Loss or Retention of Membership of National and Provincial Legislatures Act, 2002. The Eighth Amendment allowed members of municipal councils to cross the floor. The Loss or Retention of Membership Act was intended to allow members of the
National Assembly In politics, a national assembly is either a unicameral legislature, the lower house of a bicameral legislature, or both houses of a bicameral legislature together. In the English language it generally means "an assembly composed of the repres ...
and provincial legislature (South Africa), provincial legislatures to cross the floor. The Ninth Amendment made provision for the reallocation of seats in the National Council of Provinces when the party composition of a provincial legislature changed as a result of floor crossing. However, on 4 October 2002, in the case of ''United Democratic Movement v President of the Republic of South Africa and Others'', the
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Constitutional Court found the Loss or Retention of Membership Act to be unconstitutional, so floor crossing remained prohibited in the National Assembly and provincial legislatures. The Tenth Amendment was introduced to constitutionally allow floor crossing in the National Assembly and provincial legislatures; it came into force on 20 March 2003. The changes made by these three amendments were reversed when floor crossing was ended in 2009 by the Fourteenth and Fifteenth Amendments.


Eleventh Amendment

The Constitution Eleventh Amendment Act (formerly the Constitution of the Republic of South Africa Second Amendment Act, 2003) came into force on 11 July 2003. It renamed the Northern Province to Limpopo, altered the procedure for intervention by the national government in a failing provincial government and intervention by a provincial government in a failing municipality, and expanded the powers of the provincial executive when it intervenes in a municipality.


Twelfth and Thirteenth Amendments

The Constitution Twelfth Amendment Act came into force on 1 March 2006; it altered the boundaries of seven of the Provinces of South Africa, provinces. In the interim constitution the provinces had been defined in terms of Magistrate's court (South Africa), magisterial districts; the amendment redefined them in terms of the Districts of South Africa, district and metropolitan municipalities. The Twelfth Amendment also removed the provisions introduced by the Third Amendment that allowed municipalities to be established across provincial boundaries. Some of the boundary changes encountered substantial public opposition. The community of Matatiele, which had been transferred from KwaZulu-Natal to the Eastern Cape, challenged the amendment before the
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Constitutional Court, which ruled on 18 August 2006 that the KwaZulu-Natal Legislature had not allowed for the necessary public participation before approving the amendment. The court's order was suspended for eighteen months, and during that time Parliament re-enacted the Matatiele boundary change as the Thirteenth Amendment, which came into force on 14 December 2007. The people of Khutsong, which had been transferred from Gauteng to the North West (South African province), North West, resorted to marches, protests (in some cases violent) and boycotts and stayaways. In 2009 the Merafong City Local Municipality, Merafong City Municipality, which contains Khutsong, was transferred back to Gauteng by the Sixteenth Amendment.


Fourteenth and Fifteenth Amendments

The Constitution Fourteenth and Fifteenth Amendment Acts came into force on 17 April 2009; they repealed the Floor crossing (South Africa), floor crossing provisions introduced by the Eighth, Ninth, and Tenth Amendments. The Fourteenth Amendment contained the provisions which affected the provincial legislature (South Africa), provincial legislatures and the National Council of Provinces (NCOP), and therefore had to be approved by supermajority in the NCOP as well as the
National Assembly In politics, a national assembly is either a unicameral legislature, the lower house of a bicameral legislature, or both houses of a bicameral legislature together. In the English language it generally means "an assembly composed of the repres ...
, while the Fifteenth Amendment contained the remaining provisions which only had to be approved by the Assembly.


Sixteenth Amendment

The Constitution Sixteenth Amendment Act came into force on 3 April 2009. It transferred the Merafong City Local Municipality, Merafong City Municipality from the North West (South African province), North West province to Gauteng province. This followed community opposition and protest in Khutsong following from the boundary change introduced by the Twelfth Amendment.


Seventeenth Amendment

The Constitution Seventeenth Amendment Act came into force on 23 August 2013; along with the Superior Courts Act, 2013, Superior Courts Act it restructured the judicial system. The amendment: * declared the Chief Justice of South Africa, Chief Justice to be the head of the judiciary, with responsibility for administrative oversight of the courts of South Africa, courts. * expanded the jurisdiction of the
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Constitutional Court so that, as well as constitutional matters, it has jurisdiction over any matters of general public importance that it chooses to hear. * removed the jurisdiction of the Supreme Court of Appeal of South Africa, Supreme Court of Appeal over appeals from the Labour Appeal Court of South Africa, Labour Appeal Court and the Competition Appeal Court of South Africa, Competition Appeal Court. * altered references to the High Courts so that they are regarded as divisions of a single High Court of South Africa rather than separate courts. * allowed the appointment of a Constitutional Court judge as acting (law), acting Deputy Chief Justice of South Africa, Deputy Chief Justice (DCJ) if the position is vacant or the DCJ is absent.


See also

* Law of South Africa * Public Protector * Constitution * Constitutional law * Constitutional economics * Constitutionalism


Notes and references


External links


South African Government Information: Constitution


* [http://www.constitutionalcourt.org.za/ Constitutional Court of South Africa] *
The history of the Constitution
*
The text of the 1996 Constitution, consolidated until including the 17th Amendment Act of 2013

{{DEFAULTSORT:Constitution of South Africa Constitution of South Africa, 1996 in South African law South Africa and the Commonwealth of Nations