Provincial Executives

Executive authority of provinces

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
1. implementing provincial legislation in the province;
2. implementing all national legislation within the functional areas listed in Schedule 4 or 5 except where the Constitution or an Act of Parliament provides otherwise;
3. administering in the province, national legislation outside the functional areas listed in Schedules 4 and 5, the administration of which has been assigned to the provincial executive in terms of an Act of Parliament;
4. developing and implementing provincial policy;
5. co-ordinating the functions of the provincial administration and its departments;
6. preparing and initiating provincial legislation; and
7. performing any other function assigned to the provincial executive in terms of the Constitution or an Act of Parliament.
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
1. the Constitution; and
2. the provincial constitution, if a constitution has been passed for the province.

Assignment of functions

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

1. must be in terms of an agreement between the relevant Executive Council member and the Municipal Council;
2. must be consistent with the Act in terms of which the relevant power or function is exercised or performed; and
3. takes effect upon proclamation by the Premier.

Powers and functions of Premier

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
1. assenting to and signing Bills;
2. referring a Bill back to the provincial legislature for reconsideration of the Bill's constitutionality;
3. referring a Bill to the Constitutional Court for a decision on the Bill's constitutionality;
4. summoning the legislature to an extraordinary sitting to conduct special business;
5. appointing commissions of inquiry; and
6. calling a referendum in the province in accordance with national legislation.

Election of Premier

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 Chief Justice 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.

[Sub-s. (2) substituted by s. 10 of Act No. 34 of 2001.]

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 Chief Justice, but not later than 30 days after the vacancy occurs.

[Sub-s. (3) substituted by s. 10 of Act No. 34 of 2001.]

Assumption of office by Premier

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 Premier

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
1. a serious violation of the Constitution or the law;
2. serious misconduct; or
3. inability to perform the functions of office.
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.

Acting Premier

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:
1. A member of the Executive Council designated by the Premier.
2. A member of the Executive Council designated by the other members of the Council.
3. The Speaker, until the legislature designates one of its other members.
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.

Executive Council

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

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
1. act in accordance with the Constitution and, if a provincial constitution has been passed for the province, also that constitution; and
2. provide the legislature with full and regular reports concerning matters under their control.

Continuation of Executive Councils after elections

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

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 Council

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
1. undertake any other paid work;
2. act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or
3. use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.

(3) to (6) inclusive.

Transfer of functions

The Premier by proclamation may transfer to a member of the Executive Council

a.    the administration of any legislation entrusted to another member; or

b.    any power or function entrusted by legislation to another member.

Temporary assignment of functions

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 intervention in local government

1. When a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including-
1. issuing a directive to the Municipal Council, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations;
2. assuming responsibility for the relevant obligation in that municipality to the extent necessary to-
1. maintain essential national standards or meet established minimum standards for the rendering of a service;
2. 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
3. maintain economic unity; or
3. dissolving the Municipal Council and appointing an administrator until a newly elected Municipal Council has been declared elected, if exceptional circumstances warrant such a step.
2. If a provincial executive intervenes in a municipality in terms of subsection (1)(b)-
1. it must submit a written notice of the intervention to-
1. the Cabinet member responsible for local government affairs; and
2. the relevant provincial legislature and the National Council of Provinces, within 14 days after the intervention began;
2. the intervention must end if-
1. the Cabinet member responsible for local government affairs disapproves the intervention within 28 days after the intervention began or by the end of that period has not approved the intervention; or
2. the Council disapproves the intervention within 180 days after the intervention began or by the end of that period has not approved the intervention; and
3. the Council must, while the intervention continues, review the intervention regularly and make any appropriate recommendations to the provincial executive.
3. If a Municipal Council is dissolved in terms of subsection (1) (c) -
1. the provincial executive must immediately submit a written notice of the dissolution to-
1. the Cabinet member responsible for local government affairs; and
2. the relevant provincial legislature and the National Council of provinces; and
2. the dissolution takes effect 14 days from the date of receipt of the notice by the Council unless set aside by that Cabinet member or the Council before the expiry of those 14 days.
4. If a municipality cannot or does not fulfil an obligation in terms of the Constitution or legislation to approve a budget or any revenue-raising measures to give effect to the budget, the relevant provincial executive must intervene by taking any appropriate steps to ensure that the budget or those revenue-raising measures are approved, including dissolving the Municipal Council and-
1. appointing an administrator until a newly elected Municipal Council has been declared elected; and
2. approving a temporary budget or revenue-raising measures to provide for the continued functioning of the municipality.
5. If a municipality, as result of a crisis in its financial affairs, is in serious or persistent material breach of its obligations to provide basic services or to meet its financial commitments, or admits that it is unable to meet its obligations or financial commitments, the relevant provincial executive must-
1. impose a recovery plan aimed at securing the municipality's ability to meet its obligations to provide basic services or its financial commitments, which-
1. is to be prepared in accordance with national legislation; and
2. binds the municipality in the exercise of its legislative and executive authority, but only to the extent necessary to solve the crisis in its financial affairs; and
2. dissolve the Municipal Council, if the municipality cannot or does not approve legislative measures, including a budget or any revenue-raising measures, necessary to give effect to the recovery plan, and-
1. appoint an administrator until a newly elected Municipal Council has been declared elected; and
2. approve a temporary budget or revenue-raising measures or any other measures giving effect to the recovery plan to provide for the continued functioning of the municipality; or
3. if the Municipal Council is not dissolved in terms of paragraph (b), assume responsibility for the implementation of the recovery plan to the extent that the municipality cannot or does not otherwise implement the recovery plan.
6. If a provincial executive intervenes in a municipality in terms of subsection (4) or (5), it must submit a written notice of the intervention to-
1. the Cabinet member responsible for local government affairs; and
2. the relevant provincial legislature and the National Council of Provinces, within seven days after the intervention began.
7. If a provincial executive cannot or does not or does not adequately exercise the powers or perform the functions referred to in subsection (4) or (5), the national executive must intervene in terms of subsection (4) or (5) in the stead of the relevant provincial executive.
8. National legislation may regulate the implementation of this section, including the processes established by this section.

[S. 139 substituted by s. 4 of Act No. 3 of 2003.]

Executive decisions

1. A decision by the Premier of a province must be in writing if it
1. is taken in terms of legislation; or
2. has legal consequences.
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
1. tabled in the provincial legislature; and
2. approved by the provincial legislature.

Motions of no confidence

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.

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.