Simone Lawson
South Africa's constitution is the supreme law of the Republic of South Africa. It provides the legal foundation for the country's existence, sets out the human rights and duties of its citizens, and defines the structure of the government. The constitution outlines the legislative process, which involves the National Assembly and the National Council of Provinces, with the latter representing the provinces to ensure their interests are considered in the national government. Interestingly, South Africa's provinces have the power to pass their own provincial constitutions, and one province, the Western Cape, has already done so. This raises the question: do other provinces have their own constitutions, and what impact do these have on the governance of the country?
| Characteristics | Values |
|---|---|
| Number of provinces | 9 |
| Legislative authority | Vested in its provincial legislature |
| Powers of provincial legislature | Pass a constitution for its province, amend any constitution passed by it, pass legislation for its province, assign any of its legislative powers to a Municipal Council in that province |
| Composition of provincial legislature | 30-80 members, women and men elected as members |
| Eligibility to be a member of a provincial legislature | Every citizen who is qualified to vote for the National Assembly except anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service |
| First sitting of a provincial legislature | Must take place within 14 days of the election result being declared |
| Election of Speaker and Deputy Speaker | Must take place at the first sitting after a provincial legislature's election or when necessary to fill a vacancy |
| Provincial government | Given exclusive powers over certain matters, concurrent powers with the national government over other matters |
| Provincial constitution | Only the Western Cape province has a provincial constitution |
| Amendment of the Constitution | Requires a two-thirds majority vote in the National Assembly and six of the nine provinces in the National Council of Provinces if it affects provincial powers |
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What You'll Learn
The Republic of South Africa Constitution Act, 1961
The 1961 Constitution also made English and Afrikaans the official languages of South Africa, with Afrikaans defined to include Dutch. This was a change from the South Africa Act, which had recognised English and Dutch as the official languages. Additionally, the 1961 Constitution preserved the Westminster constitutional conventions, requiring the State President to appoint a Prime Minister and Cabinet supported by the House of Assembly. The legislative power was vested in Parliament, consisting of the House of Assembly (lower house) and the Senate (upper house).
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The Interim Constitution
South Africa's provinces do not have their own constitutions, but they are bound by the Constitution of the Republic of South Africa. The Constitution provides for a unicameral legislature, a Premier elected by the legislature as head of the provincial executive, and an Executive Council appointed by the Premier as a provincial cabinet.
The Constitution of the Republic of South Africa is the supreme law of the country and was promulgated by President Nelson Mandela on 18 December 1996, coming into effect on 4 February 1997. It replaced the Interim Constitution, which was enacted in 1993.
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The National Assembly
Furthermore, the National Assembly, in conjunction with the National Council of Provinces, has the power to amend the Constitution. A bill to amend the Constitution requires at least two-thirds of the members of the National Assembly to vote in favour of it. If the amendment affects provincial powers or boundaries or amends the Bill of Rights, at least six of the nine provinces in the National Council of Provinces must also vote for it.
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The National Council of Provinces
Section 74 bills deal with constitutional amendments and matters related to the amendments. A bill that amends Section 1 of the Constitution, which defines South Africa as a constitutional democratic republic, or amends the Bill of Rights, or amends any constitutional provision affecting the NCOP itself, provincial boundaries or powers, requires at least two-thirds of the members of the National Assembly to vote in favour of it.
Section 75 bills refer to the process of considering any legislation passed by the National Assembly. Parliament may intervene in provincial legislation and make or change laws dealing with exclusive provincial matters (listed in Schedule 5 of the Constitution) only to prevent unreasonable action by a province that might be detrimental to the other provinces.
Section 76 bills concern the provinces and correlate with areas of combined national and provincial legislative powers. When voting on these bills, the nine provincial delegations vote in line with the instruction communicated to them by their respective provincial legislatures. Each delegation has one vote, and the bill is approved if a majority of delegations vote in favour of it.
Section 77 bills cover the appropriation of money, the enactment of national taxes, levies, duties, or surcharges. Delegates vote individually, and the bill is accepted when the majority of delegates vote to approve it.
The NCOP also has an important role in promoting national unity and good working relations between national, provincial, and local governments. The NCOP has equivalent committees to the "Portfolio" Committees in the National Assembly, known as "Select" Committees. These committees shadow government departments and deal with specific portfolios such as justice, safety, security, and defence.
The NCOP also has temporary committees, known as "Ad Hoc" Committees, which are formed to consider specific issues and are disbanded once their mandate is completed. Some committees are permanent structures, known as "standing committees", such as the Public Accounts Standing Committee.
The inaugural chairperson of the NCOP was Mosiuoa Lekota, who served from 1997 to 1999. The chairperson is elected from the permanent delegates for a five-year term, and the legislative body also elects a permanent deputy chairperson. The chairperson presides over all the sittings of the NCOP, and if they are not present, the deputy chairperson or House Chairperson can preside.
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Provincial legislation
The Constitution of South Africa is the supreme law of the Republic of South Africa. It provides the legal foundation for the country's existence, sets out the human rights and duties of its citizens, and defines the structure of the Government. The Constitution establishes nine provinces, and each province has its own provincial legislature.
The legislative authority of a province is vested in its provincial legislature, which has the power to pass a constitution for its province or amend any previously passed constitution. The provincial legislature can also pass legislation for its province regarding any matter within a functional area listed in Schedule 4 or Schedule 5, or any matter outside those functional areas that are expressly assigned to the province by national legislation. Additionally, the provincial legislature can assign any of its legislative powers to a Municipal Council in that province.
A provincial legislature is bound by the Constitution and, if it has passed a provincial constitution, it must also act in accordance with that constitution. Provincial legislation concerning matters listed in Schedule 4 is considered legislation with regard to a matter listed in Schedule 4 if it is reasonably necessary for, or incidental to, the effective exercise of a power related to that matter.
The Premier of a province must either assent to and sign a Bill passed by the provincial legislature or refer it back to the legislature for reconsideration if there are reservations about its constitutionality. If, after reconsideration, the Bill addresses the Premier's reservations, the Premier must assent to and sign it. If not, the Premier can refer it to the Constitutional Court for a decision on its constitutionality.
The National Assembly and the National Council of Provinces are responsible for ensuring that provincial interests are considered in the national sphere of government. They do this by participating in the national legislative process and providing a forum for public issues affecting the provinces.
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Frequently asked questions
No, only the Western Cape has passed a provincial constitution.
A provincial legislature is bound only by the Constitution and, if it has passed a constitution for its province, also by that constitution. It must act in accordance with, and within the limits of, the Constitution and that provincial constitution.
The National Council of Provinces represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this by participating in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces.
A provincial legislature consists of between 30 and 80 members. The number of members may differ among the provinces and must be determined by a formula prescribed by national legislation.
