The constitution consists of a preamble, fourteen chapters containing 244 sections, and eight schedules. Each chapter deals with a particular topic; the schedules contain ancillary information referred to in the main text.
Preamble The preamble constitution is as follows:
Chapter 1: Founding Provisions Chapter 1 enshrines in the constitution key national principles, defines the country's
flag and
national anthem, and specifies the official languages and principles of government language policy. It defines South Africa as "one, sovereign,
democratic state" based on principles of human rights, constitutional supremacy, the
rule of law and universal adult suffrage. The chapter contains a supremacy clause which establishes that all other law and actions are subject to the constitution.
Chapter 2: Bill of Rights Chapter 2 is a
bill of rights which enumerates the
civil, political,
economic, social and cultural human rights of the people of South Africa. Most of these rights apply to anyone in the country, with the exception of the right to vote, the right to work and the right to enter the country, which apply only to citizens. They also apply to
juristic persons to the extent that they are applicable, taking into account the nature of the right. The rights enumerated are: •
Section 9: everyone is equal before the law and has right to equal protection and the benefit of the law. Prohibited grounds of discrimination include race, gender, sex,
pregnancy,
marital status,
ethnic or social origin, colour,
sexual orientation,
age,
disability,
religion, conscience, belief, culture, language and
birth. • Section 10: the right to
human dignity. •
Section 11: the
right to life • Section 12: the right to freedom and
security of the person, including protection against
arbitrary detention and
detention without trial, the right to be protected against violence, freedom from
torture, freedom from cruel,
inhuman or degrading treatment, the right to
bodily integrity, and
reproductive rights. • Section 13: freedom from
slavery,
servitude or
forced labour. • Section 14: the
right to privacy, including protection against
search and seizure, and the
privacy of correspondence. • Section 15:
freedom of thought and
freedom of religion. •
Section 16:
freedom of speech and expression, including
freedom of the press and
academic freedom. Explicitly excluded are
propaganda for
war,
incitement to
violence and
advocacy of hatred based on race, ethnicity, gender or religion. • Section 17:
freedom of assembly and the
right to protest. • Section 18:
freedom of association. • Section 19: the
right to vote and
universal adult suffrage; the right to stand for
public office; the right to free, fair and regular
elections; and the right to form, join and
campaign for a
political party. • Section 20: no citizen may be deprived of
citizenship. • Section 21:
freedom of movement, including the right to leave South Africa, the right of citizens to a
passport and the right to enter South Africa. • Section 22: the right to choose a
trade, occupation or profession, although these may be regulated by law. • Section 23:
labour rights, including the right to
unionise and the
right to strike. • Section 24: the
right to a healthy environment protected. • Section 25: the
right to property, limited in that
property may only be
expropriated under a law of general application (not arbitrarily), for a public purpose and with the payment of compensation. • Section 26: the
right to housing, including the right to
due process with regard to court-ordered
eviction and
demolition. • Section 27: the rights to
food,
water,
health care and
social assistance, which the state must progressively realise within the limits of its resources. • Section 28:
children's rights, including the right to a name and nationality, the right to
family or
parental care, the
right to a basic standard of living, the right to be protected from maltreatment and
abuse, the protection from inappropriate
child labour, the right not to be
detained except as a last resort, the paramountcy of the
best interests of the child and the right to an independent
lawyer in court cases involving the child, and the prohibition of the
military use of children. • Section 29: the
right to education, including a
universal right to
basic education. • Section 30: the right to use the language of one's choice and to
participate in the cultural life of one's choice. • Section 31: the right of cultural, religious or linguistic communities to enjoy their culture, practise their religion and use their language. •
Section 32: the right of
access to information, including all
information held by the government. • Section 33: the right to justice in administrative action by the government. • Section 34: the right of access to the
courts. • Section 35: the rights of arrested, detained and accused people, including the
right to silence, protection against
self-incrimination, the
right to counsel and
legal aid, the
right to a fair trial, the
presumption of innocence and the prohibition of
double jeopardy and
ex post facto crimes. Section 36 allows the rights listed to be limited only by laws of general application, and only to the extent that the restriction is reasonable and justifiable in "an open and democratic society based on human dignity, equality and freedom." Section 37 allows certain rights to be limited during a
state of emergency but places strict procedural limits on the declaration of states of emergency and provides for the rights of people detained as a result.
Chapter 3: Co-operative Government Chapter 3 deals with the relationships between organs of government in the three "spheres"national,
provincial and
local. It lays down a set of principles requiring them to co-operate in
good faith and to act in the best interests of the people. It also requires them to attempt to
settle disputes amicably before resorting to the courts.
Chapter 4: Parliament Chapter 4 defines the structure of
Parliament, the
legislative branch of the national government. Parliament consists of two houses, the
National Assembly (the
lower house), which is directly elected by the people, and the
National Council of Provinces (the
upper house), which is elected by the
provincial legislatures. The Chapter defines the principles governing the election and dissolution of the houses, qualifications for membership of Parliament,
quorum requirements, procedures for the election of presiding officers, and the powers and privileges and immunities of Parliament and its members. It lays down the process for enacting
bills into law; different procedures are provided for constitutional amendments, ordinary bills not affecting provincial matters, ordinary bills affecting provincial matters, and
money bills.
Chapter 5: The President and National Executive Chapter 5 defines the structure of the national executive and the powers of the
President. It provides for the election and removal of the President by the National Assembly, and limits a President to two five-year terms. It vests in him or her the powers of the head of state and head of government; it provides for the appointment of a
Cabinet by the President; and it provides for the accountability to Parliament of the President and Cabinet.
Chapter 6: Provinces Chapter 6 establishes the nine
provinces of South Africa and defines the powers and structure of the provincial governments. The boundaries of the provinces are defined by reference to Schedule 1A to the Constitution, which refers in turn to the boundaries of the
metropolitan and district municipalities. In some respects, the chapter is a template which a province may modify to a limited extent by adopting its own provincial constitution. (The only province so far to have done this is the
Western Cape.) The chapter provides for a unicameral
legislature, a
Premier elected by the legislature as head of the provincial executive, and an
Executive Council appointed by the Premier as a provincial cabinet. The provincial government is given exclusive powers over certain matters, listed in Schedule 5, and powers concurrent with the national government over other matters, listed in Schedule 4. The chapter regulates the conflict between national and provincial legislation on the same topic, setting out the circumstances under which one or the other will prevail.
Chapter 7: Local Government Chapter 7 sets out a framework for
local government. It requires
municipalities to be established for the whole territory of South Africa, and provides for three categories of municipalities, whereby some areas are governed by a single "Category A" municipal authority and others are governed by a two-level system with a larger "Category C" municipality containing multiple "Category B" municipalities. The municipalities are granted the power to administer certain matters listed in Schedules 4 and 5, and the executive and legislative authority is vested in the municipal council. The chapter requires municipal elections to be held every five years.
Chapter 8: Courts and Administration of Justice Chapter 8 establishes the structure of the
judicial system. It defines the hierarchy consisting of
Magistrates' Courts, the
High Court, the
Supreme Court of Appeal, and the
Constitutional Court. It provides for the appointment of judges by the President on the advice of the
Judicial Service Commission and establishes a single
National Prosecuting Authority responsible for all criminal prosecutions.
Chapter 9: State Institutions Supporting Constitutional Democracy Chapter 9 creates a number of other commissions and offices to protect and support democracy and human rights. These are the
Public Protector (an
ombudsman), the
South African Human Rights Commission, the
Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the
Commission for Gender Equality, the
Auditor-General, the
Independent Electoral Commission and the
Independent Communications Authority.
Chapter 10: Public Administration Chapter 10 lists values and principles for the administration of the
civil service and establishes the
Public Service Commission to oversee it.
Chapter 11: Security Services Chapter 11 establishes structures for civilian control of the
Defence Force, the
Police Service and the
intelligence services. It makes the President the Commander-in-Chief of the defence force but places conditions on when and how it may be employed and requires regular reports to Parliament. The police service is placed under the control of the national government but gives provincial governments some power to administer and oversee policing.
Chapter 12: Traditional Leaders Chapter 12 recognizes the status and authority of
traditional leaders and
customary law, subject to the Constitution. It allows for the creation of provincial houses of traditional leaders and a national council of traditional leaders. The Traditional leaders must have responsibilities in affairs and decision making of the municipality in order to build proper sustainable development to the people that resides on that municipality. Because we have Traditional leaders that do not have daily duties day in and day out; in short they must be part of mayoral council.
Chapter 13: Finance Chapter 13 deals with
public finance. It establishes a
National Revenue Fund, from which money may be appropriated only by an act of Parliament, and
Provincial Revenue Funds, from which money may only be appropriated by an act of the provincial legislature. It provides for an equitable distribution of national revenue to the provinces and municipalities, and grants provincial and local governments the powers to raise certain rates and taxes. It requires effective and transparent budgeting at all levels of government and gives the
National Treasury the power to oversee budgetary processes. It places some restrictions on
government procurement and
government borrowing. The chapter establishes the
Financial and Fiscal Commission, to advise government on financial matters, and the
Reserve Bank, to oversee the
currency. Economist Jacques Jonker has criticised the provisions of Chapter 13 as being insufficient to guard against fiscal imprudence, and has suggested that it be amended in line with other constitutions such as that of Spain in order to enforce fiscal discipline.
Chapter 14: General Provisions The final chapter deals with transitional and incidental provisions. In particular, the first part deals with
international law, providing that existing agreements binding South Africa will continue to bind it, and that new agreements (except those of a technical nature) will only be binding once approved by Parliament. It also provides that
customary international law applies in South Africa unless it conflicts with national law, and that the courts must, where possible, interpret national law to be consistent with international law. The remainder of the chapter contains a miscellaneous collection of provisions, • allowing Parliament to enact Charters of Rights which expand on the Bill of Rights; • allowing recognition of the right of
self-determination of communities within South Africa; • requiring public funding for
political parties represented in national and provincial legislatures; • requiring that obligations imposed by the constitution be carried out without delay; • providing that some executive powers may be delegated by one organ of state to another; • defining certain terms used in the text of the constitution; and, • as the Constitution is published in all eleven
official languages, providing that the
English text is authoritative in the event of a conflict. Chapter 14 also repeals the
Interim Constitution and refers to Schedule 6 to govern the process of transition to the new Constitution. Finally, it gives the Constitution its formal title, "Constitution of the Republic of South Africa, 1996," and defines the schedule for its commencement, under which the President set the date of commencement for most sections, although certain sections dealing with financial matters commenced only on 1 January 1998.
Schedules • Schedule 1, referred to in
Chapter 1, describes the
national flag. • Schedule 1A, referred to in
Chapter 6, defines the
geographical areas of the provinces, by reference to
maps published by the
Municipal Demarcation Board defining the
metropolitan and district municipalities. • Schedule 2 contains the texts of the
oaths or
solemn affirmations to be sworn by political office-holders and judges. • Schedule 3 describes the procedure for the election of the President by the National Assembly and the election of presiding officers by legislative bodies, as well as the formula whereby seats in the National Council of Provinces are to be allocated to political parties. • Schedule 4 lists the "functional areas" over which Parliament and the provincial legislatures have concurrent competence to legislate. • Schedule 5 lists the functional areas over which the provincial legislatures have exclusive competence to legislate. • Schedule 6 details the transitional arrangements by which institutions existing under the previous constitution were converted into the institutions established by the new constitution. It provides for the continuation of existing laws and the assignment of their administration to the provincial governments where appropriate. It also provides for certain sections of the old constitution to continue in force despite its repeal, and subject to amendments listed in the schedule. It also includes temporary amendments to the Constitution's own text which allowed the Government of National Unity to continue until the 1999 election. • Schedule 7 lists the laws repealed by the new constitution, these being the interim constitution and the ten amendments made to it. == Amendments ==