# Constitution of the Republic of South Africa, 1993/1998-10-16

The Constitution of the Republic of South Africa, 1993 was mostly repealed on 4 February 1997 when the Constitution of the Republic of South Africa, 1996 came into force and replaced it. However, some sections were preserved in force, and in some cases amended, by the new constitution. This is the remaining text of the 1993 constitution as it was on 16 October 1998, when section 108 lapsed as a result of the coming into force of the National Prosecuting Authority Act, 1998, in terms of item 18(1) of Schedule 6 to the 1996 constitution.
Act
To introduce a new Constitution for the Republic of South Africa and to provide for matters incidental thereto.
as amended by
Constitution of the Republic of South Africa Amendment Act, No. 2 of 1994 Constitution of the Republic of South Africa Second Amendment Act, No. 3 of 1994 Constitution of the Republic of South Africa Third Amendment Act, No. 13 of 1994 Constitution of the Republic of South Africa Fourth Amendment Act, No. 14 of 1994 Constitution of the Republic of South Africa Fifth Amendment Act, No. 29 of 1994 Constitution of the Republic of South Africa Sixth Amendment Act, No. 24 of 1994 Constitution of the Republic of South Africa Amendment Act, No. 20 of 1995 Constitution of the Republic of South Africa Second Amendment Act, No. 44 of 1995 Constitution of the Republic of South Africa Amendment Act, No. 7 of 1996 Constitution of the Republic of South Africa Third Amendment Act, No. 26 of 1996 Constitution of the Republic of South Africa, 1996 Financial and Fiscal Commission 1993 Constitutional Provisions Repeal Act, No. 96 of 1997
Chapter 6
The National Executive
Powers and functions of President
82. (4) (b) The President may—
(i)
(ii)
(iii)
Chapter 11A
Volkstaat Council
Provision for establishment of Volkstaat Council
184A. (1) The establishment of a Volkstaat Council is hereby authorised.
(2) The Council shall consist of 20 members elected by members of Parliament who support the establishment of a Volkstaat for those who want it.
(3) The Council shall conduct its affairs according to rules made by the Council.
Functions of Council
184B. (1) The Council shall serve as a constitutional mechanism to enable proponents of the idea of a Volkstaat to constitutionally pursue the establishment of such a Volkstaat, and shall for this purpose be competent—
(a)
(b)
(d)
Chapter 14
Police and Defence
South African Police Service
Powers and functions
215. The powers and functions of the Service shall be—
(a)
(b)
(c)
(d)
Responsibilities of National Commissioner
218. (1) Subject to the directions of the Minister of Safety and Security, the National Commissioner shall be responsible for—
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(i)
(ii)
Provincial Commissioners
219. (1) Subject to section 218(1), a Provincial Commissioner shall be responsible for—
(a)
(b)
(c)
(d)
(i)
(ii)
(iii)
(e)
(f)
(g)
South African National Defence Force
Establishment of South African National Defence Force
224. (1) The South African National Defence Force is hereby established as the only defence force for the Republic.
(2) The South African National Defence Force shall at its establishment consist of all members of—
(a)
(b)
(c)
and whose names, at the commencement of this Constitution, are included in a certified personnel register referred to in section 16(3) or (9) of the said Act: Provided that this subsection shall also apply to members of any armed force which submitted its personnel list after the commencement of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), but before the adoption of the new constitutional text as envisaged in section 73 of that Constitution, if the political organisation under whose authority and control it stands or with which it is associated and whose objectives it promotes did participate in the Transitional Executive Council or did take part in the first election of the National Assembly and the provincial legislatures under the said Constitution.
(3) Save for the South African National Defence Force, no other armed force or military force or armed organisation or service may be established in or for the Republic other than—
(a)
(b)
(c)
Chief of South African National Defence Force and Secretary for Defence
225. (1) Subject to section section 236(1) and (2), the President shall appoint a Chief of the South African National Defence Force, who shall exercise military executive command of the South African National Defence Force, subject to the directions of the Minister responsible for defence and, during a state of national defence, of the President.
(2) The Minister responsible for defence may appoint a Secretary for Defence who shall exercise such powers and perform such duties as may be provided for in any law.
Members of South African National Defence Force
226. (1) The South African National Defence Force shall comprise both a permanent force and a part-time reserve component.
(2) The establishment, organisation, training, conditions of service and other matters concerning the permanent force shall be as provided for by an Act of Parliament.
(3) The establishment, organisation, training, state of preparedness, calling up, obligations and conditions of service of the part-time reserve component shall be as provided for by an Act of Parliament.
(4) The South African National Defence Force shall be established in such a manner that it will provide a balanced, modern and technologically advanced military force, capable of executing its functions in terms of this Constitution.
(5) All members of the South African National Defence Force shall be properly trained in order to comply with international standards of competency.
(6) No member of the permanent force shall hold office in any political party or political organisation.
(7) A member of the South African National Defence Force shall be obliged to comply with all lawful orders, but shall be entitled to refuse to execute any order if the execution of such order would constitute an offence or would breach international law on armed conflict binding on the Republic.
(8) Provision shall be made by an Act of Parliament for the payment of adequate compensation to-
(a)
(b)
Functions of South African National Defence Force
227. (1) The South African National Defence Force may, subject to this Constitution, be employed—
(a)
(b)
(c)
(d)
(e)
(f)
(2) The National Defence Force shall exercise its powers and perform its functions solely in the national interest in terms of Chapter 11 of the Constitution of the Republic of South Africa, 1996.
(3) The employment for service, training, organisation and deployment of the South African National Defence Force shall be effected in accordance with the requirements of subsection (2).
Accountability
228. (1) The Minister responsible for defence shall be accountable to Parliament for the South African National Defence Force.
(2) Parliament shall annually approve a budget for the defence of the Republic.
(3) (a) A joint standing committee of Parliament on defence shall be established, consisting of members of all political parties holding more than 10 seats in the National Assembly and willing to participate in the committee.
(b) The total membership of the committee shall be as determined by or under the rules and orders.
(c) Such a party shall be entitled to designate a member or members on the committee in accordance with the principle of proportional representation and as determined in accordance with the following formula:
(i)
(ii)
(iii)
(iv)
(v)
(d) The committee shall be competent to investigate and make recommendations regarding the budget, functioning, organisation, armaments, policy, morale and state of preparedness of the South African National Defence Force and to perform such other functions relating to parliamentary supervision of the Force as may be prescribed by law.
(4) (a) The President shall, when the South African National Defence Force is employed for service referred to in section 227(1)(a), (b) or (e), forthwith inform Parliament of the reasons for such employment.
(b) If, in the case of such an employment referred to in section 227(1)(a) or (b), Parliament is not sitting, the President shall summon the joint standing committee referred to in subsection (3) to meet expeditiously, but not later than 14 days after the commencement of such employment, and shall inform the committee of the reasons for such employment.
(5) Parliament may by resolution terminate any employment referred to in section 227(1)(a), (b) or (e), but such termination of employment shall not affect the validity of anything done in terms of such employment up to the date of such termination, or any right, privilege, obligation or liability acquired, accrued or incurred as at the said date under and by virtue of such employment.
Chapter 15
General and Transitional Provisions
Transitional arrangements: Public administration
236. (1) A public service, department of state, administration or security service which immediately before the commencement of the Constitution of the Republic of South Africa, 1996 (hereinafter referred to as “the new Constitution”), performed governmental functions, continues to function in terms of the legislation applicable to it until it is abolished or incorporated or integrated into any appropriate institution or is rationalised or consolidated with any other institution.
(2) A person who immediately before the commencement of the new Constitution was employed by an institution referred to in subsection (1) shall continue in such employment subject to and in accordance with the new Constitution and other applicable laws regulating such employment.
(3) Subject to subsections (1) and (2), all powers, directions, orders, instructions or delegations which were in force in respect of an institution which immediately before the commencement of the new Constitution performed governmental functions as contemplated in subsection (1) shall, after the said commencement, continue in force for the purpose of the continued functioning within the contemplation of subsection (1) of any such institution, until cancelled or otherwise no longer in force in law.
(6) (a) The President may appoint a commission to review the conclusion or amendment of a contract, the appointment or promotion, or the award of a term or condition of service or other benefit, which occurred between 27 April 1993 and 30 September 1994 in respect of any person referred to 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 of the case.
(7) (b) Any reference in any law to the South African Police or any other police force (excluding a municipal police service) shall, unless the context indicates otherwise, be construed as a reference to the said South African Police Service.
(8) (a) The South African National Defence Force referred to in section 224 shall, subject to the new Constitution and any Act of Parliament, mutatis mutandis be governed by the Defence Act, 1957 (Act No. 44 of 1957).
(b) Any reference in any law to a defence force referred to in section 224(2)(a) or (b), shall be deemed to be a reference to the South African National Defence Force.
(c) If the number of the members of the South African National Defence Force exceeds the personnel strength determined in respect of the force design and structure for the Force, any member of the Force who, due to integration, consolidation and rationalisation of the South African National Defence Force is not accommodated in such force design and structure, shall be dealt with in accordance with a law.
(d) The continuance of membership of members of the South African National Defence Force referred to in section 224(2)(c) shall be subject to such members entering into an agreement for temporary or permanent appointment with the South African National Defence Force within a reasonable time: Provided that such agreements shall be in accordance with normal employment policies and terms and conditions of service.
Rationalisation of public administration
237. (1) (a) The rationalisation of all institutions referred to in section 236(1), excluding military forces referred to in section 224(2), shall after the commencement of the Constitution of the Republic of South Africa, 1996, continue, with a view to establishing—
(i)
(ii)
(b) All military forces referred to in section 224(2) shall be rationalised for the purposes of the South African National Defence Force.
(2) (a) The responsibility for the rationalisation of—
(i)
(ii)
Transitional arrangements: Assets and liabilities
239. (4) Subject to and in accordance with any applicable law, the assets, rights, duties and liabilities of all forces referred to in section 224(2) shall devolve upon the National Defence Force in accordance with the directions of the Minister of Defence.
(5) Anything done in terms of this section shall be subject to audit by the Auditor-General.
Transitional arrangements: Local government
245. (4) Until a period of not less than three years has elapsed from the date on which the members of a district council, a metropolitan substructure, a transitional council, a transitional representative council or a transitional rural council as contemplated in the Local Government Transition Act, 1993, have been elected in terms of that Act, such council or substructure, as the case may be, shall not be disestablished and no change shall be made to the powers, area of jurisdiction, wards or number of seats thereof except in accordance with an Act of Parliament further regulating the local government transition process or by way of proclamation in the Provincial Gazette by the Premier of a province acting in consultation with the Minister for Provincial Affairs and Constitutional Development.
Schedule 2
System for Election of National Assembly and Provincial Legislatures
Election of National Assembly
1.
2.
(a)
(b)
3.
4.
(a)
(b)
with such number of names on each list as the party may determine subject to item 3.
5.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
6.
(a)
(b)
(c)
(d)
(e)
7.
(1) If a party has submitted a national or a regional list containing fewer names than the number of its provisional allocation of seats which would have been filled from such list in terms of item 8 or 9 had such provisional allocation been the final allocation, it shall forfeit a number of seats equal to the deficit.
(2) In the event of any forfeiture of seats in terms of subitem (1) affecting the provisional allocation of seats in respect of any particular region in terms of item 5(e), such allocation shall be recalculated as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(3) In the event of any forfeiture of seats in terms of subitem (1) affecting the provisional allocation of seats in terms of item 6(d), such allocation shall be recalculated as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(4) In the event of a party being allocated an additional number of seats in terms of this item, and its list in question then does not contain the names of a sufficient number of candidates as set out in subitem (1), the procedure provided for in this item shall mutatis mutandis be repeated until all seats have been allocated.
8.
(1) Where a party submitted both a national list and regional lists, the seats finally allocated to it—
(a)
(b)
(2) A seat finally allocated to a party in respect of a region, shall, for the purposes of subitem (1)(a), be filled only from such party’s list for that particular region.
9.
(1) Where a party submitted regional lists only, the seats finally allocated to it—
(a)
(b)
(2) A seat finally allocated to a party in respect of a region, shall, for the purposes of subitem (1)(a), be filled only from such party’s list for that particular region.
Election of provincial legislatures
10.
11.
12.
13.
(a)
(b)
(c)
(d)
(e)
14.
(1) If a party has submitted a provincial list containing fewer names than the number of seats provisionally allocated to it in terms of item 13(d), it shall forfeit a number of seats equal to the deficit.
(2) In the event of any forfeiture of seats in terms of subitem (1), the allocation of seats in respect of the province concerned shall be recalculated as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(3) In the event of a party being allocated an additional number of seats in terms of this item, and its list in question then does not contain the names of a sufficient number of candidates as set out in subitem (1), the process provided for in this item shall mutatis mutandis be repeated until all seats have been allocated.
Ballot papers
15.
Designation of representatives
16.
(1) After the counting of votes has been concluded, the number of representatives of each party has been determined and the election result has been declared in terms of section 190 of the new Constitution, the Commission shall, within two days after such declaration, designate from each list of candidates, published in terms of national legislation, the representatives of each party in the legislature.
(2) Following the designation in terms of subitem (1), if a candidate’s name appears on more than one list for the National Assembly or on lists for both the National Assembly and a provincial legislature (if an election of the Assembly and a provincial legislature is held at the same time), and such candidate is due for designation as a representative in more than one case, the party which submitted such lists shall, within two days after the said declaration, indicate to the Commission from which list such candidate will be designated or in which legislature the candidate will serve, as the case may be, in which event the candidate’s name shall be deleted from the other lists.
(3) The Commission shall forthwith publish the list of names of representatives in the legislature or legislatures.
Supplementation of lists of candidates
17.
18.
(a)
(b)
(c)
(d)
19.
20.
Review of lists of candidates by a party
21.
(a)
(b)
(c)
Publication of supplemented and reviewed lists of candidates
22.
Vacancies
23.
(1) In the event of a vacancy in a legislature to which this Schedule applies, the party which nominated the vacating member shall fill the vacancy by nominating a person—
(a)
(b)
(2) A nomination to fill a vacancy shall be submitted to the Speaker in writing.
(3) If a party represented in a legislature dissolves or ceases to exist and the members in question vacate their seats in consequence of item 23A(1), the seats in question shall be allocated to the remaining parties mutatis mutandis as if such seats were forfeited seats in terms of item 7 or 14, as the case may be.
Additional ground for loss of membership of legislatures
23A.
(1) A person loses membership of a legislature to which this Schedule applies if that person ceases to be a member of the party which nominated that person as a member of the legislature.
(2) Despite subitem (1) any existing political party may at any time change its name.
(3) An Act of Parliament may, within a reasonable period after the new 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 the manner in which it will be possible for a member of a legislature who ceases to be a member of the party which nominated that member, to retain membership of such legislature.
(4) An Act of Parliament referred to in subitem (3) may also provide for—
(a)
(b)
Definitions
25.
“Commission” means the Electoral Commission referred to in section 190 of the new Constitution;
“national list” means a list of candidates prepared by a party for an election of the National Assembly to reflect that party’s order of preference of candidates in respect of the allocation of seats on a national basis;
“new Constitution” means the Constitution of the Republic of South Africa, 1996;
“provincial list” means a list of candidates prepared by a party for an election of a provincial legislature;
“region” means the territorial area of a province;
“regional list” means a list of candidates in respect of a region prepared by a party for an election of the National Assembly to reflect that party’s order of preference of candidates in respect of the allocation of seats in respect of such region.
“votes” means—
(a)
(b)
(c)