This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Chapter 6 - Provinces
103. (1) The Republic has the following provinces:
(2) The boundaries of the provinces are those that existed when the Constitution took effect.
Legislative authority of provinces
104. (1) The legislative authority of a province is vested in its provincial legislature, and confers on the provincial legislature the power
for its province with regard to
i any matter within a functional area listed in Schedule 4;
ii any matter within a functional area listed in Schedule 5;
iii any matter outside those functional areas, and that is expressly assigned to the province by national legislation; and
iv any matter for which a provision of the Constitution envisages the enactment of provincial legislation; and
(2) The legislature of a province, by a resolution adopted with a supporting vote of at least two thirds of its members, may request Parliament to change the name of that province.
(3) A provincial legislature is bound only by the Constitution and, if it has passed a constitution for its province, also by that constitution, and must act in accordance with, and within the limits of, the Constitution and that provincial constitution.
(4) Provincial legislation with regard to a matter that is reasonably necessary for, or incidental to, the effective exercise of a power concerning any matter listed in Schedule 4, is for all purposes legislation with regard to a matter listed in Schedule 4.
(5) A provincial legislature may recommend to the National Assembly legislation concerning any matter outside the authority of that legislature, or in respect of which an Act of Parliament prevails over a provincial law.
Composition and election of provincial legislatures
105. (1) A provincial legislature consists of women and men elected as members in terms of an electoral system that
(2) A provincial legislature consists of between 30 and 80 members. The number of members, which may differ among the provinces, must be determined in terms of a formula prescribed by national legislation.
106. (1) Every citizen who is qualified to vote for the National Assembly is eligible to be a member of a provincial legislature, except
i the Premier and other members of the Executive Council of a province; and
ii other office-bearers whose functions are compatible with the functions of a member of a provincial legislature, and have been declared compatible with those functions by national legislation;
(2) A person who is not eligible to be a member of a provincial legislature in terms of subsection (1) (a) or (b) may be a candidate for the legislature, subject to any limits or conditions established by national legislation.
(3) A person loses membership of a provincial legislature if that person
(4) Vacancies in a provincial legislature must be filled in terms of national legislation.
Oath or affirmation
107. Before members of a provincial legislature begin to perform their functions in the legislature, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
Duration of provincial legislatures
108. (1) A provincial legislature is elected for a term of five years.
(2) If a provincial legislature is dissolved in terms of section 109, or when its term expires, the Premier of the province, by proclamation, must call and set dates for an election, which must be held within 90 days of the date the legislature was dissolved or its term expired.
(3) If the result of an election of a provincial legislature is not declared within the period referred to in section 190, or if an election is set aside by a court, the President, by proclamation, must call and set dates for another election, which must be held within 90 days of the expiry of that period or of the date on which the election was set aside.
(4) A provincial legislature remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next legislature.
Dissolution of provincial legislatures before expiry of term
109. (1) The Premier of a province must dissolve the provincial legislature if
(2) An Acting Premier must dissolve the provincial legislature if
Sittings and recess periods
110. (1) After an election, the first sitting of a provincial legislature must take place at a time and on a date determined by a judge designated by the President of the Constitutional Court, but not more than 14 days after the election result has been declared. A provincial legislature may determine the time and duration of its other sittings and its recess periods.
(2) The Premier of a province may summon the provincial legislature to an extraordinary sitting at any time to conduct special business.
(3) A provincial legislature may determine where it ordinarily will sit.
Speakers and Deputy Speakers
111. (1) At the first sitting after its election, or when necessary to fill a vacancy, a provincial legislature must elect a Speaker and a Deputy Speaker from among its members.
(2) A judge designated by the President of the Constitutional Court must preside over the election of a Speaker. The Speaker presides over the election of a Deputy Speaker.
(3) The procedure set out in Part A of Schedule 3 applies to the election of Speakers and Deputy Speakers.
(4) A provincial legislature may remove its Speaker or Deputy Speaker from office by resolution. A majority of the members of the legislature must be present when the resolution is adopted.
(5) In terms of its rules and orders, a provincial legislature may elect from among its members other presiding officers to assist the Speaker and the Deputy Speaker.
112. (1) Except where the Constitution provides otherwise
(2) The member presiding at a meeting of a provincial legislature has no deliberative vote, but
Permanent delegates' rights in provincial legislatures
113. A province's permanent delegates to the National Council of Provinces may attend, and may speak in, their provincial legislature and its committees, but may not vote. The legislature may require a permanent delegate to attend the legislature or its committees.
Powers of provincial legislatures
114. (1) In exercising its legislative power, a provincial legislature may
(2) A provincial legislature must provide for mechanisms
i the exercise of provincial executive authority in the province, including the implementation of legislation; and
ii any provincial organ of state.
Evidence or information before provincial legislatures
115. A provincial legislature or any of its committees may
Internal arrangements, proceedings and procedures of provincial legislatures
116. (1) A provincial legislature may
(2) The rules and orders of a provincial legislature must provide for
117. (1) Members of a provincial legislature and the province's permanent delegates to the National Council of Provinces
i anything that they have said in, produced before or submitted to the legislature or any of its committees; or
ii anything revealed as a result of anything that they have said in, produced before or submitted to the legislature or any of its committees.
(2) Other privileges and immunities of a provincial legislature and its members may be prescribed by national legislation.
(3) Salaries, allowances and benefits payable to members of a provincial legislature are a direct charge against the Provincial Revenue Fund.
Public access to and involvement in provincial legislatures
118. (1) A provincial legislature must
i to regulate public access, including access of the media, to the legislature and its committees; and
ii to provide for the searching of any person and, where appropriate, the refusal of entry to,or the removal of, any person.
(2) A provincial legislature may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.
Introduction of Bills
119. Only members of the Executive Council of a province or a committee or member of a provincial legislature may introduce a Bill in the legislature; but only the member of the Executive Council who is responsible for financial matters in the province may introduce a money Bill in the legislature.
120. (1) A Bill that appropriates money or imposes taxes, levies or duties is a money Bill. A money Bill may not deal with any other matter except a subordinate matter incidental to the appropriation of money or the imposition of taxes, levies or duties.
(2) A provincial Act must provide for a procedure by which the province's legislature may amend a money Bill.
Assent to Bills
121. (1) The Premier of a province must either assent to and sign a Bill passed by the provincial legislature in terms of this Chapter or, if the Premier has reservations about the constitutionality of the Bill, refer it back to the legislature for reconsideration.
(2) If, after reconsideration, a Bill fully accommodates the Premier's reservations, the Premier must assent to and sign the Bill; if not, the Premier must either
(3) If the Constitutional Court decides that the Bill is constitutional, the Premier must assent to and sign it.
Application by members to Constitutional Court
122. (1) Members of a provincial legislature may apply to the Constitutional Court for an order declaring that all or part of a provincial Act is unconstitutional.
(2) An application
(3) The Constitutional Court may order that all or part of an Act that is the subject of an application in terms of subsection (1) has no force until the Court has decided the application if
(4) If an application is unsuccessful, and did not have a reasonable prospect of success, the Constitutional Court may order the applicants to pay costs.
Publication of provincial Acts
123. A Bill assented to and signed by the Premier of a province becomes a provincial Act, must be published promptly and takes effect when published or on a date determined in terms of the Act.
Safekeeping of provincial Acts
124. The signed copy of a provincial Act is conclusive evidence of the provisions of that Act and, after publication, must be entrusted to the Constitutional Court for safekeeping .
Executive authority of provinces
125. (1) The executive authority of a province is vested in the Premier of that province.
(2) The Premier exercises the executive authority, together with the other members of the Executive Council, by
(3) A province has executive authority in terms of subsection (2) (b) only to the extent that the province has the administrative capacity to assume effective responsibility. The national government, by legislative and other measures, must assist provinces to develop the administrative capacity required for the effective exercise of their powers and performance of their functions referred to in subsection (2).
(4) Any dispute concerning the administrative capacity of a province in regard to any function must be referred to the National Council of Provinces for resolution within 30 days of the date of the referral to the Council.
(5) Subject to section 100, the implementation of provincial legislation in a province is an exclusive provincial executive power.
(6) The provincial executive must act in accordance with
Assignment of functions
126. A member of the Executive Council of a province may assign any power or function that is to be exercised or performed in terms of an Act of Parliament or a provincial Act, to a Municipal Council. An assignment
Powers and functions of Premiers
127. (1) The Premier of a province has the powers and functions entrusted to that office by the Constitution and any legislation.
(2) The Premier of a province is responsible for
Election of Premiers
128. (1) At its first sitting after its election, and whenever necessary to fill a vacancy, a provincial legislature must elect a woman or a man from among its members to be the Premier of the province.
(2) A judge designated by the President of the Constitutional Court must preside over the election of the Premier. The procedure set out in Part A of Schedule 3 applies to the election of the Premier.
(3) An election to fill a vacancy in the office of Premier must be held at a time and on a date determined by the President of the Constitutional Court, but not later than 30 days after the vacancy occurs.
Assumption of office by Premiers
129. A Premier-elect must assume office within five days of being elected, by swearing or affirming faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
Term of office and removal of Premiers
130. (1) A Premier's term of office begins when the Premier assumes office and ends upon a vacancy occurring or when the person next elected Premier assumes office.
(2) No person may hold office as Premier for more than two terms, but when a person is elected to fill a vacancy in the office of Premier, the period between that election and the next election of a Premier is not regarded as a term.
(3) The legislature of a province, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the Premier from office only on the grounds of
(4) Anyone who has been removed from the office of Premier in terms of subsection (3) (a) or (b) may not receive any benefits of that office, and may not serve in any public office.
131. (1) When the Premier is absent or otherwise unable to fulfil the duties of the office of Premier, or during a vacancy in the office of Premier, an office-bearer in the order below acts as the Premier:
(2) An Acting Premier has the responsibilities, powers and functions of the Premier.
(3) Before assuming the responsibilities, powers and functions of the Premier, the Acting Premier must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
132. (1) The Executive Council of a province consists of the Premier, as head of the Council, and no fewer than five and no more than ten members appointed by the Premier from among the members of the provincial legislature.
(2) The Premier of a province appoints the members of the Executive Council, assigns their powers and functions, and may dismiss them.
Accountability and responsibilities
133. (1) The members of the Executive Council of a province are responsible for the functions of the executive assigned to them by the Premier.
(2) Members of the Executive Council of a province are accountable collectively and individually to the legislature for the exercise of their powers and the performance of their functions.
(3) Members of the Executive Council of a province must
Continuation of Executive Councils after elections
134. When an election of a provincial legislature is held, the Executive Council and its members remain competent to function until the person elected Premier by the next legislature assumes office.
Oath or affirmation
135. Before members of the Executive Council of a province begin to perform their functions, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
Conduct of members of Executive Councils
136. (1) Members of the Executive Council of a province must act in accordance with a code of ethics prescribed by national legislation.
(2) Members of the Executive Council of a province may not
Transfer of functions
137. The Premier by proclamation may transfer to a member of the Executive Council
Temporary assignment of functions
138. The Premier of a province may assign to a member of the Executive Council any power or function of another member who is absent from office or is unable to exercise that power or perform that function.
Provincial supervision of local government
139. (1) When a municipality cannot or does not fulfil an executive obligation in terms of legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including
i to maintain essential national standards or meet established minimum standards for the rendering of a service;
ii to prevent that Municipal Council from taking unreasonable action that is prejudicial to the interests of another municipality or to the province as a whole; or
iii to maintain economic unity.
(2) If a provincial executive intervenes in a municipality in terms of subsection (1)(b)
(3) National legislation may regulate the process established by this section.
140. (1) A decision by the Premier of a province must be in writing if it
(2) A written decision by the Premier must be countersigned by another Executive Council member if that decision concerns a function assigned to that other member.
(3) Proclamations, regulations and other instruments of subordinate legislation of a province must be accessible to the public.
(4) Provincial legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be
Motions of no confidence
141. (1) If a provincial legislature, by a vote supported by a majority of its members, passes a motion of no confidence in the province's Executive Council excluding the Premier, the Premier must reconstitute the Council.
(2) If a provincial legislature, by a vote supported by a majority of its members, passes a motion of no confidence in the Premier, the Premier and the other members of the Executive Council must resign.
Adoption of provincial constitutions
142. A provincial legislature may pass a constitution for the province or, where applicable, amend its constitution, if at least two thirds of its members vote in favour of the Bill.
Contents of provincial constitutions
143. (1) A provincial constitution, or constitutional amendment, must not be inconsistent with this Constitution, but may provide for
(2) Provisions included in a provincial constitution or constitutional amendment in terms of paragraphs (a) or (b) of subsection (1)
i outside the area of provincial competence in terms of Schedules 4 and 5; or
ii outside the powers and functions conferred on the province by other sections of the Constitution.
Certification of provincial constitutions
144. (1) If a provincial legislature has passed or amended a constitution, the Speaker of the legislature must submit the text of the constitution or constitutional amendment to the Constitutional Court for certification.
(2) No text of a provincial constitution or constitutional amendment becomes law until the Constitutional Court has certified
Signing, publication and safekeeping of provincial constitutions
145. (1) The Premier of a province must assent to and sign the text of a provincial constitution or constitutional amendment that has been certified by the Constitutional Court.
(2) The text assented to and signed by the Premier must be published in the national Government Gazette and takes effect on publication or on a later date determined in terms of that constitution or amendment.
(3) The signed text of a provincial constitution or constitutional amendment is conclusive evidence of its provisions and, after publication, must be entrusted to the Constitutional Court for safekeeping.
Conflicts between national and provincial legislation
146. (1) This section applies to a conflict between national legislation and provincial legislation falling within a functional area listed in Schedule 4.
(2) National legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if any of the following conditions is met:
i norms and standards;
ii frameworks; or
iii national policies.
i the maintenance of national security;
ii the maintenance of economic unity;
iii the protection of the common market in respect of the mobility of goods, services, capital and labour;
iv the promotion of economic activities across provincial boundaries;
v the promotion of equal opportunity or equal access to government services; or
vi the protection of the environment.
(3) National legislation prevails over provincial legislation if the national legislation is aimed at preventing unreasonable action by a province that
(4) When there is a dispute concerning whether national legislation is necessary for a purpose set out in subsection (2)(c) and that dispute comes before a court for resolution, the court must have due regard to the approval or the rejection of the legislation by the National Council of Provinces.
(5) Provincial legislation prevails over national legislation if subsection (2) or (3) does not apply.
(6) A law made in terms of an Act of Parliament or a provincial Act can prevail only if that law has been approved by the National Council of Provinces.
(7) If the National Council of Provinces does not reach a decision within 30 days of its first sitting after a law was referred to it, that law must be considered for all purposes to have been approved by the Council.
(8) If the National Council of Provinces does not approve a law referred to in subsection (6), it must, within 30 days of its decision, forward reasons for not approving the law to the authority that referred the law to it.
147. (1) If there is a conflict between national legislation and a provision of a provincial constitution with regard to
(2) National legislation referred to in section 44(2) prevails over provincial legislation in respect of matters within the functional areas listed in Schedule 5.
Conflicts that cannot be resolved
148. If a dispute concerning a conflict cannot be resolved by a court, the national legislation prevails over the provincial legislation or provincial constitution.
Status of legislation that does not prevail
149. A decision by a court that legislation prevails over other legislation does not invalidate that other legislation, but that other legislation becomes inoperative for as long as the conflict remains.
Interpretation of conflicts
150. When considering an apparent conflict between national and provincial legislation, or between national legislation and a provincial constitution, every court must prefer any reasonable interpretation of the legislation or constitution that avoids a conflict, over any alternative interpretation that results in a conflict.