Go to SA Web   
         South African Constitution

Schedule 6

Transitional Arrangements

Index of Sections

Definitions

1. In this Schedule, unless inconsistent with the context ­

    "homeland" means a part of the Republic which, before theprevious Constitution took effect, was dealt with in South African legislationas an independent or a self-governing territory;

    "new Constitution" means the Constitution of the Republicof South Africa, 1996;

    "old order legislation" means legislation enacted before theprevious Constitution took effect;

    "previous Constitution" means the Constitution of the Republicof South Africa, 1993 (Act 200 of 1993).

Continuation of existing law

2. (1) All law that was in force when the new Constitution took effect,continues in force, subject to ­

  1. any amendment or repeal; and
  2. consistency with the new Constitution.

(2) Old order legislation that continues in force in terms of subitem(1) -

  1. does not have a wider application, territorially or otherwise, thanit had before the previous Constitution took effect unless subsequentlyamended to have a wider application; and
  2. continues to be administered by the authorities that administered itwhen the new Constitution took effect, subject to the new Constitution.

Interpretation of existing legislation

3. (1) Unless inconsistent with the context or clearly inappropriate,a reference in any legislation that existed when the new Constitution tookeffect ­

  1. to the Republic of South Africa or a homeland (except when it refersto a territorial area), must be construed as a reference to the Republicof South Africa under the new Constitution;
  2. to Parliament, the National Assembly or the Senate, must be construedas a reference to Parliament, the National Assembly or the National Councilof Provinces under the new Constitution;
  3. to the President, an Executive Deputy President, a Minister, a DeputyMinister or the Cabinet, must be construed as a reference to the President,the Deputy President, a Minister, a Deputy Minister or the Cabinet underthe new Constitution, subject to item 9 of this Schedule;
  4. to the President of the Senate, must be construed as a reference tothe Chairperson of the National Council of Provinces;
  5. to a provincial legislature, Premier, Executive Council or member ofan Executive Council of a province, must be construed as a reference toa provincial legislature, Premier, Executive Council or member of an ExecutiveCouncil under the new Constitution, subject to item 12 of this Schedule;or
  6. to an official language or languages, must be construed as a referenceto any of the official languages under the new Constitution.

(2) Unless inconsistent with the context or clearly inappropriate, areference in any remaining old order legislation ­

  1. to a Parliament, a House of a Parliament or a legislative assemblyor body of the Republic or of a homeland, must be construed as a referenceto ­
    1. Parliament under the new Constitution, if the administration of thatlegislation has been allocated or assigned in terms of the previous Constitutionor this Schedule to the national executive; or
    2. the provincial legislature of a province, if the administration ofthat legislation has been allocated or assigned in terms of the previousConstitution or this Schedule to a provincial executive; or
  2. to a State President, Chief Minister, Administrator or other chiefexecutive, Cabinet, Ministers' Council or executive council of the Republicor of a homeland, must be construed as a reference to ­
    1. the President under the new Constitution, if the administration ofthat legislation has been allocated or assigned in terms of the previousConstitution or this Schedule to the national executive; or
    2. the Premier of a province under the new Constitution, if the administrationof that legislation has been allocated or assigned in terms of the previousConstitution or this Schedule to a provincial executive.

National Assembly

4. (1) Anyone who was a member or office-bearer of the National Assemblywhen the new Constitution took effect, becomes a member or office-bearerof the National Assembly under the new Constitution, and holds office asa member or office-bearer in terms of the new Constitution.

(2) The National Assembly as constituted in terms of subitem (1) mustbe regarded as having been elected under the new Constitution for a termthat expires on 30 April 1999.

(3) The National Assembly consists of 400 members for the duration ofits term that expires on 30 April 1999, subject to section 49(4) of thenew Constitution.

(4) The rules and orders of the National Assembly in force when thenew Constitution took effect, continue in force, subject to any amendmentor repeal.

Unfinished business before Parliament

5. (1) Any unfinished business before the National Assembly when thenew Constitution takes effect must be proceeded with in terms of the newConstitution.

(2) Any unfinished business before the Senate when the new Constitutiontakes effect must be referred to the National Council of Provinces, andthe Council must proceed with that business in terms of the new Constitution.

Elections of National Assembly

6. (1) No election of the National Assembly may be held before 30 April1999 unless the Assembly is dissolved in terms of section 50(2) after amotion of no confidence in the President in terms of section 102(2) ofthe new Constitution.

(2) Section 50(1) of the new Constitution is suspended until 30 April1999.

(3) Despite the repeal of the previous Constitution, Schedule 2 to thatConstitution, as amended by Annexure A to this Schedule, applies ­

  1. to the first election of the National Assembly under the new Constitution;
  2. to the loss of membership of the Assembly in circumstances other thanthose provided for in section 47(3) of the new Constitution; and
  3. to the filling of vacancies in the Assembly, and the supplementation,review and use of party lists for the filling of vacancies, until the secondelection of the Assembly under the new Constitution.

(4) Section 47(4) of the new Constitution is suspended until the secondelection of the National Assembly under the new Constitution.

National Council of Provinces

7. (1) For the period which ends immediately before the first sittingof a provincial legislature held after its first election under the newConstitution ­

  1. the proportion of party representation in the province's delegationto the National Council of Provinces must be the same as the proportionin which the province's 10 senators were nominated in terms of section48 of the previous Constitution; and
  2. the allocation of permanent delegates and special delegates to theparties represented in the provincial legislature, is as follows:
Province Permanent Delegates Special Delegates
1. Eastern Cape ANC 5
NP 1 		ANC 4
2. Free State ANC 4
FF 1
NP 1 		ANC 4
3. Gauteng ANC 3
DP 1
FF 1
NP 1 		ANC 3
NP 1
4. KwaZulu-Natal ANC 1
DP 1
IFP 3
NP 1 		ANC 2
IFP 2
5. Mpumalanga ANC 4
FF 1
NP 1 		ANC 4
6. Northern Cape ANC 3
FF 1
NP 2 		ANC 2
NP 2
7. Northern Province ANC 6 ANC 4
8. North West ANC 4
FF 1
NP 1		 ANC 4
9. Western Cape ANC 2
DP 1
NP 3 		ANC 1
NP 3

(2) A party represented in a provincial legislature ­

  1. must nominate its permanent delegates from among the persons who weresenators when the new Constitution took effect and are available to serveas permanent delegates; and
  2. may nominate other persons as permanent delegates only if none or aninsufficient number of its former senators are available.

(3) A provincial legislature must appoint its permanent delegates inaccordance with the nominations of the parties.

(4) Subitems (2) and (3) apply only to the first appointment of permanentdelegates to the National Council of Provinces.

(5) Section 62(1) of the new Constitution does not apply to the nominationand appointment of former senators as permanent delegates in terms of thisitem.

(6) The rules and orders of the Senate in force when the new Constitutiontook effect, must be applied in respect of the business of the NationalCouncil to the extent that they can be applied, subject to any amendmentor repeal.

Former senators

8. (1) A former senator who is not appointed as a permanent delegateto the National Council of Provinces is entitled to become a full votingmember of the legislature of the province from which that person was nominatedas a senator in terms of section 48 of the previous Constitution.

(2) If a former senator elects not to become a member of a provinciallegislature that person is regarded as having resigned as a senator theday before the new Constitution took effect.

(3) The salary, allowances and benefits of a former senator appointedas a permanent delegate or as a member of a provincial legislature maynot be reduced by reason only of that appointment.

National executive

9. (1) Anyone who was the President, an Executive Deputy President,a Minister or a Deputy Minister under the previous Constitution when thenew Constitution took effect, continues in and holds that office in termsof the new Constitution, but subject to subitem (2).

(2) Until 30 April 1999, sections 84, 89, 90, 91, 93 and 96 of the newConstitution must be regarded to read as set out in Annexure B to thisSchedule.

(3) Subitem (2) does not prevent a Minister who was a senator when thenew Constitution took effect, from continuing as a Minister referred toin section 91(1)(a) of the new Constitution, as that section reads in AnnexureB.

Provincial legislatures

10. (1) Anyone who was a member or office-bearer of a province's legislaturewhen the new Constitution took effect, becomes a member or office-bearerof the legislature for that province under the new Constitution, and holdsoffice as a member or office-bearer in terms of the new Constitution andany provincial constitution that may be enacted.

(2) A provincial legislature as constituted in terms of subitem (1)must be regarded as having been elected under the new Constitution fora term that expires on 30 April 1999.

(3) For the duration of its term that expires on 30 April 1999, andsubject to section 108(4), a provincial legislature consists of the numberof members determined for that legislature under the previous Constitutionplus the number of former senators who became members of the legislaturein terms of item 8 of this Schedule.

(4) The rules and orders of a provincial legislature in force when thenew Constitution took effect, continue in force, subject to any amendmentor repeal.

Elections of provincial legislatures

11. (1) Despite the repeal of the previous Constitution, Schedule 2to that Constitution, as amended by Annexure A to this Schedule, applies­

  1. to the first election of a provincial legislature under the new Constitution;
  2. to the loss of membership of a legislature in circumstances other thanthose provided for in section 106(3) of the new Constitution; and
  3. to the filling of vacancies in a legislature, and the supplementation,review and use of party lists for the filling of vacancies, until the secondelection of the legislature under the new Constitution.

(2) Section 106(4) of the new Constitution is suspended in respect ofa provincial legislature until the second election of the legislature underthe new Constitution.

Provincial executives

12. (1) Anyone who was the Premier or a member of the Executive Councilof a province when the new Constitution took effect, continues in and holdsthat office in terms of the new Constitution and any provincial constitutionthat may be enacted, but subject to subitem (2).

(2) Until the Premier elected after the first election of a province'slegislature under the new Constitution assumes office, or the provinceenacts its constitution, whichever occurs first, sections 132 and 136 ofthe new Constitution must be regarded to read as set out in Annexure Cto this Schedule.

Provincial constitutions

13. A provincial constitution passed before the new Constitution tookeffect must comply with section 143 of the new Constitution.

Assignment of legislation to provinces

14. (1) Legislation with regard to a matter within a functional arealisted in Schedule 4 or 5 to the new Constitution and which, when the newConstitution took effect, was administered by an authority within the nationalexecutive, may be assigned by the President, by proclamation, to an authoritywithin a provincial executive designated by the Executive Council of theprovince.

(2) To the extent that it is necessary for an assignment of legislationunder subitem (1) to be effectively carried out, the President, by proclamation,may ­

  1. amend or adapt the legislation to regulate its interpretation or application;
  2. where the assignment does not apply to the whole of any piece of legislation,repeal and re-enact, with or without any amendments or adaptations referredto in paragraph (a), those provisions to which the assignment applies orto the extent that the assignment applies to them; or
  3. regulate any other matter necessary as a result of the assignment,including the transfer or secondment of staff, or the transfer of assets,liabilities, rights and obligations, to or from the national or a provincialexecutive or any department of state, administration, security serviceor other institution.

(3)

  1. A copy of each proclamation issued in terms of subitem (1) or (2) mustbe submitted to the National Assembly and the National Council of Provinceswithin 10 days of the publication of the proclamation.
  2. If both the National Assembly and the National Council by resolutiondisapprove the proclamation or any provision of it, the proclamationor provision lapses, but without affecting ­
    1. the validity of anything done in terms of the proclamation or provisionbefore it lapsed; or
    2. a right or privilege acquired or an obligation or liability incurredbefore it lapsed.

(4) When legislation is assigned under subitem (1), any reference inthe legislation to an authority administering it, must be construed asa reference to the authority to which it has been assigned.

(5) Any assignment of legislation under section 235(8) of the previousConstitution, including any amendment, adaptation or repeal and re-enactmentof any legislation and any other action taken under that section, is regardedas having been done under this item.

Existing legislation outside Parliament's legislativepower

15. (1) An authority within the national executive that administersany legislation falling outside Parliament's legislative power when thenew Constitution takes effect, remains competent to administer that legislationuntil it is assigned to an authority within a provincial executive in termsof item 14 of this Schedule.

(2) Subitem (1) lapses two years after the new Constitution took effect.

Courts

16. (1) Every court, including courts of traditional leaders, existingwhen the new Constitution took effect, continues to function and to exercisejurisdiction in terms of the legislation applicable to it, and anyone holdingoffice as a judicial officer continues to hold office in terms of the legislationapplicable to that office, subject to ­

  1. any amendment or repeal of that legislation; and
  2. consistency with the new Constitution.

(2)

  1. The Constitutional Court established by the previous Constitution becomesthe Constitutional Court under the new Constitution.
  2. Anyone holding office as the President, the Deputy President or a judgeof the Constitutional Court when the new Constitution takes effect, becomesthe President, the Deputy President or a judge of the Constitutional Courtunder the new Constitution, and continues in office for the unexpired portionof their term as fixed by section 176(1) of the new Constitution.

(3)

  1. The Appellate Division of the Supreme Court of South Africa becomesthe Supreme Court of Appeal under the new Constitution.
  2. Anyone holding office as the Chief Justice, the Deputy Chief Justiceor a judge of the Appellate Division when the new Constitution takes effect,becomes the Chief Justice, the Deputy Chief Justice or a judge of the SupremeCourt of Appeal under the new Constitution.

(4)

  1. A provincial or local division of the Supreme Court of South Africaor a supreme court of a homeland or a general division of such a court,becomes a High Court under the new Constitution without any alterationin its area of jurisdiction, subject to any rationalisation contemplatedin subitem (6).
  2. Anyone holding office or deemed to hold office as the Judge President,the Deputy Judge President or a judge of a court referred to in paragraph(a) when the new Constitution takes effect, becomes the Judge President,the Deputy Judge President or a judge of such a court under the new Constitution,subject to any rationalisation contemplated in subitem (6).

(5) Unless inconsistent with the context or clearly inappropriate, areference in any legislation or process to ­

  1. the Constitutional Court under the previous Constitution, must be construedas a reference to the Constitutional Court under the new Constitution;
  2. the Appellate Division of the Supreme Court of South Africa, must beconstrued as a reference to the Supreme Court of Appeal; and
  3. ) a provincial or local division of the Supreme Court of South Africaor a supreme court of a homeland or general division of that court, mustbe construed as a reference to a High Court.

(6)

  1. As soon as is practical after the new Constitution took effect allcourts, including their structure, composition, functioning and jurisdiction,and all relevant legislation, must be rationalised with a view to establishinga judicial system suited to the requirements of the new Constitution.
  2. The Cabinet member responsible for the administration of justice, actingafter consultation with the Judicial Service Commission, must manage therationalisation envisaged in paragraph (a).

Cases pending before courts

17. All proceedings which were pending before a court when the new Constitutiontook effect, must be disposed of as if the new Constitution had not beenenacted, unless the interests of justice require otherwise.

Prosecuting authority

18. (1) Section 108 of the previous Constitution continues in forceuntil the Act of Parliament envisaged in section 179 of the new Constitutiontakes effect. This subitem does not affect the appointment of the NationalDirector of Public Prosecutions in terms of section 179.

(2) An attorney-general holding office when the new Constitution takeseffect, continues to function in terms of the legislation applicable tothat office, subject to subitem (1).

Oaths and affirmations

19. A person who continues in office in terms of this Schedule and whohas taken the oath of office or has made a solemn affirmation under theprevious Constitution, is not obliged to repeat the oath of office or solemnaffirmation under the new Constitution.

Other constitutional institutions

20. (1) In this section "constitutional institution" means­

  1. the Public Protector;
  2. the Human Rights Commission;
  3. the Commission on Gender Equality;
  4. the Auditor-General;
  5. the South African Reserve Bank;
  6. the Financial and Fiscal Commission;
  7. the Judicial Service Commission; or
  8. the Pan South African Language Board.

(2) A constitutional institution established in terms of the previousConstitution continues to function in terms of the legislation applicableto it, and anyone holding office as a commission member, a member of theboard of the Reserve Bank or the Pan South African Language Board, thePublic Protector or the Auditor-General when the new Constitution takeseffect, continues to hold office in terms of the legislation applicableto that office, subject to -

  1. any amendment or repeal of that legislation; and
  2. consistency with the new Constitution.

(3) Sections 199(1), 200(1), (3) and (5) to (11) and 201 to 206 of theprevious Constitution continue in force until repealed by an Act of Parliamentpassed in terms of section 75 of the new Constitution.

(4) The members of the Judicial Service Commission referred to in section105(1)(h) of the previous Constitution cease to be members of the Commissionwhen the members referred to in section 178(1)(i) of the new Constitutionare appointed.

(5)

  1. The Volkstaat Council established in terms of the previous Constitutioncontinues to function in terms of the legislation applicable to it, andanyone holding office as a member of the Council when the new Constitutiontakes effect, continues to hold office in terms of the legislation applicableto that office, subject to ­
    1. any amendment or repeal of that legislation; and
    2. consistency with the new Constitution.
  2. Sections 184A and 184B(1)(a), (b) and (d) of the previous Constitutioncontinue in force until repealed by an Act of Parliament passed in termsof section 75 of the new Constitution.

Enactment of legislation required by new Constitution

21. (1) Where the new Constitution requires the enactment of nationalor provincial legislation, that legislation must be enacted by the relevantauthority within a reasonable period of the date the new Constitution tookeffect.

(2) Section 198(b) of the new Constitution may not be enforced untilthe legislation envisaged in that section has been enacted.

(3) Section 199(3)(a) of the new Constitution may not be enforced beforethe expiry of three months after the legislation envisaged in that sectionhas been enacted.

(4) National legislation envisaged in section 217(3) of the new Constitutionmust be enacted within three years of the date on which the new Constitutiontook effect, but the absence of this legislation during this period doesnot prevent the implementation of the policy referred to in section 217(2).

(5) Until the Act of Parliament referred to in section 65(2) of thenew Constitution is enacted each provincial legislature may determine itsown procedure in terms of which authority is conferred on its delegationto cast votes on its behalf in the National Council of Provinces.

(6) Until the legislation envisaged in section 229(1)(b) of the newConstitution is enacted, a municipality remains competent to impose anytax, levy or duty which it was authorised to impose when the Constitutiontook effect.

National unity and reconciliation

22. Notwithstanding the other provisions of the new Constitution anddespite the repeal of the previous Constitution, all the provisions relatingto amnesty contained in the previous Constitution under the heading "NationalUnity and Reconciliation" are deemed to be part of the new Constitutionfor the purposes of the Promotion of National Unity and ReconciliationAct, 1995 (Act 34 of 1995), as amended, including for the purposes of itsvalidity.

Bill of Rights

23. (1) National legislation envisaged in sections 9(4), 32(2) and 33(3)of the new Constitution must be enacted within three years of the dateon which the new Constitution took effect.

(2) Until the legislation envisaged in sections 32(2) and 33(3) of thenew Constitution is enacted ­

  1. section 32(1) must be regarded to read as follows:

    "(1) Every person has the right of access to all informationheld by the state or any of its organs in any sphere of government in sofar as that information is required for the exercise or protection of anyof their rights."; and

  1. section 33(1) and (2) must be regarded to read as follows:

    2. "Every person has the right to ­

    1. lawful administrative action where any of their rights or interestsis affected or threatened;
    2. procedurally fair administrative action where any of their rightsor legitimate expectations is affected or threatened;
    3. be furnished with reasons in writing for administrative action whichaffects any of their rights or interests unless the reasons for that actionhave been made public; and
    4. administrative action which is justifiable in relation to the reasonsgiven for it where any of their rights is affected or threatened.".

(3) Sections 32(2) and 33(3) of the new Constitution lapse if the legislationenvisaged in those sections, respectively, is not enacted within threeyears of the date the new Constitution took effect.

Public administration and security services

24. (1) Sections 82(4)(b), 215, 218(1), 219(1), 224 to 228, 236(1),(2), (3), (6), (7)(b) and (8), 237(1) and (2)(a) and 239 (4) and (5) ofthe previous Constitution continue in force as if the previous Constitutionhad not been repealed, subject to ­

  1. the amendments to those sections as set out in Annexure D;
  2. any further amendment or any repeal of those sections by an Act ofParliament passed in terms of section 75 of the new Constitution; and
  3. consistency with the new Constitution.

(2) The Public Service Commission and the provincial service commissionsreferred to in Chapter 13 of the previous Constitution continue to functionin terms of that Chapter and the legislation applicable to it as if thatChapter had not been repealed, until the Commission and the provincialservice commissions are abolished by an Act of Parliament passed in termsof section 75 of the new Constitution.

(3) The repeal of the previous Constitution does not affect any proclamationissued under section 237(3) of the previous Constitution, and any suchproclamation continues in force, subject to ­

  1. any amendment or repeal; and
  2. consistency with the new Constitution.

Additional disqualification for legislatures

25. (1) Anyone who, when the new Constitution took effect, was servinga sentence in the Republic of more than 12 months' imprisonment withoutthe option of a fine, is not eligible to be a member of the National Assemblyor a provincial legislature.

(2) The disqualification of a person in terms of subitem (1) ­

  1. lapses if the conviction is set aside on appeal, or the sentence isreduced on appeal to a sentence that does not disqualify that person; and
  2. ends five years after the sentence has been completed.

Local government

26. (1) Notwithstanding the provisions of sections 151, 155, 156 and157 of the new Constitution ­

  1. the provisions of the Local Government Transition Act, 1993 (Act 209of 1993), as may be amended from time to time by national legislation consistentwith the new Constitution, remain in force until 30 April 1999 or untilrepealed, whichever is sooner; and
  2. a traditional leader of a community observing a system of indigenouslaw and residing on land within the area of a transitional local council,transitional rural council or transitional representative council, referredto in the Local Government Transition Act, 1993, and who has been identifiedas set out in section 182 of the previous Constitution, is ex officioentitled to be a member of that council until 30 April 1999 or untilan Act of Parliament provides otherwise.

(2) Section 245(4) of the previous Constitution continues in force untilthe application of that section lapses. Section 16(5) and (6) of the LocalGovernment Transition Act, 1993, may not be repealed before 30 April 1999.

Safekeeping of Acts of Parliament and ProvincialActs

27. Sections 82 and 124 of the new Constitution do not affect the safekeepingof Acts of Parliament or provincial Acts passed before the new Constitutiontook effect.

Registration of immovable property owned by thestate

28. (1) On the production of a certificate by a competent authoritythat immovable property owned by the state is vested in a particular governmentin terms of section 239 of the previous Constitution, a registrar of deedsmust make such entries or endorsements in or on any relevant register,title deed or other document to register that immovable property in thename of that government.

(2) No duty, fee or other charge is payable in respect of a registrationin terms of subitem (1).

ANNEXURE A

Amendments to Schedule 2 to the previous Constitution

1. The replacement of item 1 with the following item:

    "1. Parties registered in terms of national legislation andcontesting an election of the National Assembly, shall nominate candidatesfor such election on lists of candidates prepared in accordance with thisSchedule and national legislation.".

2. The replacement of item 2 with the following item:

    "2. The seats in the National Assembly as determined in termsof section 46 of the new Constitution, shall be filled as follows:

    1. One half of the seats from regional lists submitted by the respectiveparties, with a fixed number of seats reserved for each region as determinedby the Commission for the next election of the Assembly, taking into accountavailable scientifically based data in respect of voters, and representationsby interested parties.
    2. The other half of the seats from national lists submitted by therespective parties, or from regional lists where national lists were notsubmitted.".

3. The replacement of item 3 with the following item:

    "3. The lists of candidates submitted by a party, shall in totalcontain the names of not more than a number of candidates equal to thenumber of seats in the National Assembly, and each such list shall denotesuch names in such fixed order of preference as the party may determine.".

4. The amendment of item 5 by replacing the words preceding paragraph(a) with the following words:

    "5. The seats referred to in item 2(a) shall be allocated perregion to the parties contesting an election, as follows:".

5. The amendment of item 6 -

    (a) by replacing the words preceding paragraph (a) with the followingwords:

      "6. The seats referred to in item 2(b) shall be allocated tothe parties contesting an election, as follows:"; and

    (b) by replacing paragraph (a) with the following paragraph:

      "(a) A quota of votes per seat shall be determined by dividingthe total number of votes cast nationally by the number of seats in theNational Assembly, plus one, and the result plus one, disregarding fractions,shall be the quota of votes per seat.".

6. The amendment of item 7(3) by replacing paragraph (b) with the followingparagraph:

    "(b) An amended quota of votes per seat shall be determinedby dividing the total number of votes cast nationally, minus the numberof votes cast nationally in favour of the party referred to in paragraph(a), by the number of seats in the Assembly, plus one, minus the numberof seats finally allocated to the said party in terms of paragraph (a).".

7. The replacement of item 10 with the following item:

    "10. The number of seats in each provincial legislature shallbe as determined in terms of section 105 of the new Constitution.".

8. The replacement of item 11 with the following item:

    "11. Parties registered in terms of national legislation andcontesting an election of a provincial legislature, shall nominate candidatesfor election to such provincial legislature on provincial lists preparedin accordance with this Schedule and national legislation.".

9. The replacement of item 16 with the following item:

    "Designation of representatives

    16. (1) After the counting of votes has been concluded, the numberof representatives of each party has been determined and the election resulthas been declared in terms of section 190 of the new Constitution, theCommission shall, within two days after such declaration, designate fromeach list of candidates, published in terms of national legislation, therepresentatives of each party in the legislature.

    (2) Following the designation in terms of subitem (1), if a candidate'sname appears on more than one list for the National Assembly or on listsfor both the National Assembly and a provincial legislature (if an electionof the Assembly and a provincial legislature is held at the same time),and such candidate is due for designation as a representative in more thanone case, the party which submitted such lists shall, within two days afterthe said declaration, indicate to the Commission from which list such candidatewill be designated or in which legislature the candidate will serve, asthe case may be, in which event the candidate's name shall be deleted fromthe other lists.

    (3) The Commission shall forthwith publish the list of names of representativesin the legislature or legislatures.".

10. The amendment of item 18 by replacing paragraph (b) with the followingparagraph:

    "(b) a representative is appointed as a permanent delegate tothe National Council of Provinces;".

11. The replacement of item 19 with the following item:

    "19. Lists of candidates of a party referred to in item 16(1)may be supplemented on one occasion only at any time during the first 12months following the date on which the designation of representatives interms of item 16 has been concluded, in order to fill casual vacancies:Provided that any such supplementation shall be made at the end of thelist.".

12. The replacement of item 23 with the following item:

    "Vacancies

    23.(1) In the event of a vacancy in a legislature to which this Scheduleapplies, the party which nominated the vacating member shall fill the vacancyby nominating a person ­

    1. whose name appears on the list of candidates from which the vacatingmember was originally nominated; and
    2. who is the next qualified and available person on the list.

    (2) A nomination to fill a vacancy shall be submitted to the Speakerin writing.

    (3) If a party represented in a legislature dissolves or ceases toexist and the members in question vacate their seats in consequence ofitem 23A(1), the seats in question shall be allocated to the remainingparties mutatis mutandis as if such seats were forfeited seats in termsof item 7 or 14, as the case may be.".

13. The insertion of the following item after item 23:

    "Additional ground for loss of membership of legislatures

    23A. (1) A person loses membership of a legislature to which thisSchedule applies if that person ceases to be a member of the party whichnominated that person as a member of the legislature.

    (2) Despite subitem (1) any existing political party may at any timechange its name.

    (3) An Act of Parliament may, within a reasonable period after thenew Constitution took effect, be passed in accordance with section 76(1)of the new Constitution to amend this item and item 23 to provide for themanner in which it will be possible for a member of a legislature who ceasesto be a member of the party which nominated that member, to retain membershipof such legislature.

    (4) An Act of Parliament referred to in subitem (3) may also providefor ­

    1. any existing party to merge with another party; or
    2. any party to subdivide into more than one party.".

14. The deletion of item 24.

15. The amendment of item 25 ­

    (a) by replacing the definition of "Commission" with the followingdefinition:

      " 'Commission' means the Electoral Commission referred to insection 190 of the new Constitution;"; and

    (b) by inserting the following definition after the definition of "nationallist":

      " 'new Constitution' means the Constitution of the Republicof South Africa, 1996;".

16. The deletion of item 26.

ANNEXURE B

Government of National Unity: National Sphere

1. Section 84 of the new Constitution is deemed to contain the followingadditional subsection:

    "(3) The President must consult the Executive Deputy Presidents­

    1. in the development and execution of the policies of the nationalgovernment;
    2. in all matters relating to the management of the Cabinet and theperformance of Cabinet business;
    3. in the assignment of functions to the Executive Deputy Presidents;
    4. before making any appointment under the Constitution or any legislation,including the appointment of ambassadors or other diplomatic representatives;
    5. before appointing commissions of inquiry;
    6. before calling a referendum; and
    7. before pardoning or reprieving offenders.".

2. Section 89 of the new Constitution is deemed to contain the followingadditional subsection:

    "(3) Subsections (1) and (2) apply also to an Executive DeputyPresident.".

3. Paragraph (a) of section 90(1) of the new Constitution is deemedto read as follows:

    "(a) an Executive Deputy President designated by the President;".

4. Section 91 of the new Constitution is deemed to read as follows:

    "Cabinet

    91. (1) The Cabinet consists of the President, the Executive DeputyPresidents and ­

    1. not more than 27 Ministers who are members of the National Assemblyand appointed in terms of subsections (8) to (12); and
    2. not more than one Minister who is not a member of the National Assemblyand appointed in terms of subsection (13), provided the President, actingin consultation with the Executive Deputy Presidents and the leaders ofthe participating parties, deems the appointment of such a Minister expedient.

    (2) Each party holding at least 80 seats in the National Assemblyis entitled to designate an Executive Deputy President from among the membersof the Assembly.

    (3) If no party or only one party holds 80 or more seats in the Assembly,the party holding the largest number of seats and the party holding thesecond largest number of seats are each entitled to designate one ExecutiveDeputy President from among the members of the Assembly.

    (4) On being designated, an Executive Deputy President may electto remain or cease to be a member of the Assembly.

    (5) An Executive Deputy President may exercise the powers and mustperform the functions vested in the office of Executive Deputy Presidentby the Constitution or assigned to that office by the President.

    (6) An Executive Deputy President holds office ­

    1. until 30 April 1999 unless replaced or recalled by the party entitledto make the designation in terms of subsections (2) and (3); or
    2. until the person elected President after any election of the NationalAssembly held before 30 April 1999, assumes office.

    (7) A vacancy in the office of an Executive Deputy President maybe filled by the party which designated that Deputy President.

    (8) A party holding at least 20 seats in the National Assembly andwhich has decided to participate in the government of national unity, isentitled to be allocated one or more of the Cabinet portfolios in respectof which Ministers referred to in subsection (1)(a) are to be appointed,in proportion to the number of seats held by it in the National Assemblyrelative to the number of seats held by the other participating parties.

    (9) Cabinet portfolios must be allocated to the respective participatingparties in accordance with the following formula:

    1. A quota of seats per portfolio must be determined by dividing thetotal number of seats in the National Assembly held jointly by the participatingparties by the number of portfolios in respect of which Ministers referredto in subsection (1) (a) are to be appointed, plus one.
    2. The result, disregarding third and subsequent decimals, if any,is the quota of seats per portfolio.
    3. The number of portfolios to be allocated to a participating partyis determined by dividing the total number of seats held by that partyin the National Assembly by the quota referred to in paragraph (b).
    4. The result, subject to paragraph (e), indicates the number of portfoliosto be allocated to that party.
    5. Where the application of the above formula yields a surplus notabsorbed by the number of portfolios allocated to a party, the surpluscompetes with other similar surpluses accruing to another party or parties,and any portfolio or portfolios which remain unallocated must be allocatedto the party or parties concerned in sequence of the highest surplus.

    (10) The President after consultation with the Executive Deputy Presidentsand the leaders of the participating parties must ­

    1. determine the specific portfolios to be allocated to the respectiveparticipating parties in accordance with the number of portfolios allocatedto them in terms of subsection (9);
    2. appoint in respect of each such portfolio a member of the NationalAssembly who is a member of the party to which that portfolio was allocatedunder paragraph (a), as the Minister responsible for that portfolio;
    3. if it becomes necessary for the purposes of the Constitution orin the interest of good government, vary any determination under paragraph(a), subject to subsection (9);
    4. terminate any appointment under paragraph (b) ­
      1. if the President is requested to do so by the leader of the partyof which the Minister in question is a member; or
      2. ) if it becomes necessary for the purposes of the Constitution orin the interest of good government; or
    5. fill, when necessary, subject to paragraph (b), a vacancy in theoffice of Minister.

    (11) Subsection (10) must be implemented in the spirit embodied inthe concept of a government of national unity, and the President and theother functionaries concerned must in the implementation of that subsectionseek to achieve consensus at all times: Provided that if consensus cannotbe achieved on ­

    1. the exercise of a power referred to in paragraph (a), (c) or (d)(ii)of that subsection, the President's decision prevails;
    2. 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 President'sparty, the decision of the leader of the party of which that person isa member prevails; and
    3. the exercise of a power referred to in paragraph (b) or (e) of thatsubsection affecting a person who is a member of the President's party,the President's decision prevails.

    (12) If any determination of portfolio allocations is varied undersubsection (10)(c), the affected Ministers must vacate their portfoliosbut are eligible, where applicable, for reappointment to other portfoliosallocated to their respective parties in terms of the varied determination.

    (13) The President ­

    1. in consultation with the Executive Deputy Presidents and the leadersof the participating parties, must ­
      1. determine a specific portfolio for a Minister referred to in subsection(1) (b) should it become necessary pursuant to a decision of the Presidentunder that subsection;
      2. appoint in respect of that portfolio a person who is not a memberof the National Assembly, as the Minister responsible for that portfolio;and
      3. fill, if necessary, a vacancy in respect of that portfolio; or
    2. after consultation with the Executive Deputy Presidents and theleaders of the participating parties, must terminate any appointment underparagraph (a) if it becomes necessary for the purposes of the Constitutionor in the interest of good government.

    (14) Meetings of the Cabinet must be presided over by the President,or, if the President so instructs, by an Executive Deputy President: Providedthat the Executive Deputy Presidents preside over meetings of the Cabinetin turn unless the exigencies of government and the spirit embodied inthe concept of a government of national unity otherwise demand.

    (15) The Cabinet must function in a manner which gives considerationto the consensus-seeking spirit embodied in the concept of a governmentof national unity as well as the need for effective government.".

5. Section 93 of the new Constitution is deemed to read as follows:

    "Appointment of Deputy Ministers

    93. (1) The President may, after consultation with the ExecutiveDeputy Presidents and the leaders of the parties participating in the Cabinet,establish deputy ministerial posts.

    (2) A party is entitled to be allocated one or more of the deputyministerial posts in the same proportion and according to the same formulathat portfolios in the Cabinet are allocated.

    (3) The provisions of section 91 (10) to (12) apply, with the necessarychanges, in respect of Deputy Ministers, and in such application a referencein that section to a Minister or a portfolio must be read as a referenceto a Deputy Minister or a deputy ministerial post, respectively.

    (4) If a person is appointed as the Deputy Minister of any portfolioentrusted to a Minister ­

    1. that Deputy Minister must exercise and perform on behalf of therelevant Minister any of the powers and functions assigned to that Ministerin terms of any legislation or otherwise which may, subject to the directionsof the President, be assigned to that Deputy Minister by that Minister;and
    2. any reference in any legislation to that Minister must be construedas including a reference to the Deputy Minister acting in terms of an assignmentunder paragraph (a) by the Minister for whom that Deputy Minister acts.

    (5) Whenever a Deputy Minister is absent or for any reason unableto exercise or perform any of the powers or functions of office, the Presidentmay appoint any other Deputy Minister or any other person to act in thesaid Deputy Minister's stead, either generally or in the exercise or performanceof any specific power or function.".

6. Section 96 of the new Constitution is deemed to contain the followingadditional subsections:

    "(3) Ministers are accountable individually to the Presidentand to the National Assembly for the administration of their portfolios,and all members of the Cabinet are correspondingly accountable collectivelyfor the performance of the functions of the national government and forits policies.

    (4) Ministers must administer their portfolios in accordance withthe policy determined by the Cabinet.

    (5) If a Minister fails to administer the portfolio in accordancewith the policy of the Cabinet, the President may require the Ministerconcerned to bring the administration of the portfolio into conformitywith that policy.

    (6) If the Minister concerned fails to comply with a requirementof the President under subsection (5), the President may remove the Ministerfrom office ­

    1. if it is a Minister referred to in section 91(1)(a), after consultationwith the Minister and, if the Minister is not a member of the President'sparty or is not the leader of a participating party, also after consultationwith the leader of that Minister's party; or
    2. if it is a Minister referred to in section 91(1)(b), after consultationwith the Executive Deputy Presidents and the leaders of the participatingparties.".

ANNEXURE C

Government of National Unity: Provincial Sphere

1. Section 132 of the new Constitution is deemed to read as follows:

    "Executive Councils

    132. (1) The Executive Council of a province consists of the Premierand not more than 10 members appointed by the Premier in accordance withthis section.

    (2) A party holding at least 10 per cent of the seats in a provinciallegislature and which has decided to participate in the government of nationalunity, is entitled to be allocated one or more of the Executive Councilportfolios in proportion to the number of seats held by it in the legislaturerelative to the number of seats held by the other participating parties.

    (3) Executive Council portfolios must be allocated to the respectiveparticipating parties according to the same formula set out in section91 (9), and in applying that formula a reference in that section to ­

    1. the Cabinet, must be read as a reference to an Executive Council;
    2. a Minister, must be read as a reference to a member of an ExecutiveCouncil; and
    3. the National Assembly, must be read as a reference to the provinciallegislature.

    (4) The Premier of a province after consultation with the leadersof the participating parties must ­

    1. determine the specific portfolios to be allocated to the respectiveparticipating parties in accordance with the number of portfolios allocatedto them in terms of subsection (3);
    2. appoint in respect of each such portfolio a member of the provinciallegislature who is a member of the party to which that portfolio was allocatedunder paragraph (a), as the member of the Executive Council responsiblefor that portfolio;
    3. if it becomes necessary for the purposes of the Constitution orin the interest of good government, vary any determination under paragraph(a), subject to subsection (3);
    4. terminate any appointment under paragraph (b) ­
      1. if the Premier is requested to do so by the leader of the partyof which the Executive Council member in question is a member; or
      2. if it becomes necessary for the purposes of the Constitution orin the interest of good government; or
    5. fill, when necessary, subject to paragraph (b), a vacancy in theoffice of a member of the Executive Council.

    (5) Subsection (4) must be implemented in the spirit embodied inthe concept of a government of national unity, and the Premier and theother functionaries concerned must in the implementation of that subsectionseek to achieve consensus at all times: Provided that if consensus cannotbe achieved on ­

    1. the exercise of a power referred to in paragraph (a), (c) or (d)(ii)of that subsection, the Premier's decision prevails;
    2. 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'sparty, the decision of the leader of the party of which such person isa member prevails; and
    3. the exercise of a power referred to in paragraph (b) or (e) of thatsubsection affecting a person who is a member of the Premier's party, thePremier's decision prevails.

    (6) If any determination of portfolio allocations is varied undersubsection (4)(c), the affected members must vacate their portfolios butare eligible, where applicable, for reappointment to other portfolios allocatedto their respective parties in terms of the varied determination.

    (7) Meetings of an Executive Council must be presided over by thePremier of the province.

    (8) An Executive Council must function in a manner which gives considerationto the consensus-seeking spirit embodied in the concept of a governmentof national unity, as well as the need for effective government.".

2. Section 136 of the new Constitution is deemed to contain the followingadditional subsections:

    "(3) Members of Executive Councils are accountable individuallyto the Premier and to the provincial legislature for the administrationof their portfolios, and all members of the Executive Council are correspondinglyaccountable collectively for the performance of the functions of the provincialgovernment and for its policies.

    (4) Members of Executive Councils must administer their portfoliosin accordance with the policy determined by the Council.

    (5) If a member of an Executive Council fails to administer the portfolioin accordance with the policy of the Council, the Premier may require themember concerned to bring the administration of the portfolio into conformitywith that policy.

    (6) If the member concerned fails to comply with a requirement ofthe Premier under subsection (5), the Premier may remove the member fromoffice after consultation with the member, and if the member is not a memberof the Premier's party or is not the leader of a participating party, alsoafter consultation with the leader of that member's party.".

ANNEXURE D

Public administration and security services: Amendmentsto sections of the previous Constitution

1. The amendment of section 218 of the previous Constitution ­

    (a) by replacing in subsection (1) the words preceding paragraph (a)with the following words:

      "(1) Subject to the directions of the Minister of Safety andSecurity, the National Commissioner shall be responsible for ­";

    (b) by replacing paragraph (b) of subsection (1) with the followingparagraph:

      "(b) the appointment of provincial commissioners;";

    (c) by replacing paragraph (d) of subsection (1) with the followingparagraph:

      "(d) the investigation and prevention of organised crime orcrime which requires national investigation and prevention or specialisedskills;"; and

    (d) by replacing paragraph (k) of subsection (1) with the followingparagraph:

      "(k) the establishment and maintenance of a national publicorder policing unit to be deployed in support of and at the request ofthe Provincial Commissioner;".

2. The amendment of section 219 of the previous Constitution by replacingin subsection (1) the words preceding paragraph (a) with the followingwords:

    "(1) Subject to section 218(1), a Provincial Commissioner shallbe responsible for ­".

3. The amendment of section 224 of the previous Constitution by replacingthe proviso to subsection (2) with the following proviso:

    "Provided that this subsection shall also apply to members ofany armed force which submitted its personnel list after the commencementof the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993),but before the adoption of the new constitutional text as envisaged insection 73 of that Constitution, if the political organisation under whoseauthority and control it stands or with which it is associated and whoseobjectives it promotes did participate in the Transitional Executive Councilor did take part in the first election of the National Assembly and theprovincial legislatures under the said Constitution.".

4. The amendment of section 227 of the previous Constitution by replacingsubsection (2) with the following subsection:

    "(2) The National Defence Force shall exercise its powers andperform its functions solely in the national interest in terms of Chapter11 of the Constitution of the Republic of South Africa, 1996.".

5. The amendment of section 236 of the previous Constitution ­

    (a) by replacing subsection (1) with the following subsection:

      "(1) A public service, department of state, administration orsecurity service which immediately before the commencement of the Constitutionof the Republic of South Africa, 1996 (hereinafter referred to as "thenew Constitution"), performed governmental functions, continuesto function in terms of the legislation applicable to it until it is abolishedor incorporated or integrated into any appropriate institution or is rationalisedor consolidated with any other institution.";

    (b) by replacing subsection (6) with the following subsection:

      "(6) (a) The President may appoint a commission to review theconclusion or amendment of a contract, the appointment or promotion, orthe award of a term or condition of service or other benefit, which occurredbetween 27 April 1993 and 30 September 1994 in respect of any person referredto in subsection (2) or any class of such persons.

      (b) The commission may reverse or alter a contract, appointment,promotion or award if not proper or justifiable in the circumstances ofthe case."; and

    (c) by replacing "this Constitution", wherever thisoccurs in section 236, with "the new Constitution".

6. The amendment of section 237 of the previous Constitution ­

    (a) by replacing paragraph (a) of subsection (1) with the followingparagraph:

      "(a) The rationalisation of all institutions referred to insection 236(1), excluding military forces referred to in section 224(2),shall after the commencement of the Constitution of the Republic of SouthAfrica, 1996, continue, with a view to establishing ­

      (i) an effective administration in the national sphere of governmentto deal with matters within the jurisdiction of the national sphere; and

      (ii) an effective administration for each province to deal with matterswithin the jurisdiction of each provincial government."; and

    (b) by replacing subparagraph (i) of subsection (2)(a) with the followingsubparagraph:

      "(i) institutions referred to in section 236(1), excluding militaryforces, shall rest with the national government, which shall exercise suchresponsibility in co-operation with the provincial governments;".

7. The amendment of section 239 of the previous Constitution by replacingsubsection (4) with the following subsection:

    "(4) Subject to and in accordance with any applicable law, theassets, rights, duties and liabilities of all forces referred to in section224(2) shall devolve upon the National Defence Force in accordance withthe directions of the Minister of Defence.".



Index | Schedule 7

    
SOUTH AFRICAN WEB - ELECTIONS'99               Main Page
.