Legislative authority of provinces
- The legislative authority of a province is vested in its provincial legislature, and confers on the provincial legislature the power
- to pass a constitution for its province or to amend any constitution passed by it in terms of sections 142 and 143;
- to pass legislation for its province with regard to
- any matter within a functional area listed in Schedule 4;
- any matter within a functional area listed in Schedule 5;
- any matter outside those functional areas, and that is expressly assigned to the province by national legislation; and
- any matter for which a provision of the Constitution envisages the enactment of provincial legislation; and
- to assign any of its legislative powers to a Municipal Council in that province.
- 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.
- 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.
- 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.
- 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
- A provincial legislature consists of women and men elected as members in terms of an electoral system that-
- is prescribed by national legislation;
- is based on that province's segment of the national common voters roll;
- provides for a minimum voting age of 18 years; and
- results, in general, in proportional representation
[Sub-s. (1) amended by s. 3 of Act No. 2 of 2003; amended by s. 3 of Constitution Fourteenth Amendment Act of 2008.]
- 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.
- Every citizen who is qualified to vote for the National Assembly is eligible to be a member of a provincial legislature, except
- anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service, other than
- the Premier and other members of the Executive Council of a province; and
- 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;
- members of the National Assembly, permanent delegates to the National Council of Provinces or members of a Municipal Council;
- unrehabilitated insolvents;
- anyone declared to be of unsound mind by a court of the Republic; or
- anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months' imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.
- 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.
- A person loses membership of a provincial legislature if that person
- ceases to be eligible; or
- is absent from the legislature without permission in circumstances for which the rules and orders of the legislature prescribe loss of membership; or
- Ceases to be a member of the party that nominated that person as a member of the legislature
[Sub-s. (3) amended by s. 4 of Act No. 2 of 2003; amended by s.4 of the Constitution Fourteenth Amendment Act of 2008.]
- Vacancies in a provincial legislature must be filled in terms of national legislation.
(Sub -s. (4) suspended until second election of legislature. See Sch. 6 item 11 (2).)
Oath or affirmation
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
- A provincial legislature is elected for a term of five years.
- 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. A proclamation calling and setting dates for an election may be issued before or after the expiry of the term of a provincial legislature.
[Sub-s. (2) substituted by s. 1 of Act No. 3 of 1999.]
- 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.
- 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
- The Premier of a province must dissolve the provincial legislature if
- the legislature has adopted a resolution to dissolve with a supporting vote of a majority of its members; and
- three years have passed since the legislature was elected.
- An Acting Premier must dissolve the provincial legislature if
- there is a vacancy in the office of Premier; and
- the legislature fails to elect a new Premier within 30 days after the vacancy occurred.
Sittings and recess periods
- 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 Chief Justice, 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.
[Sub-s. (1) substituted by s. 8 of Act No. 34 of 2001.]
- The Premier of a province may summon the provincial legislature to an extraordinary sitting at any time to conduct special business.
- A provincial legislature may determine where it ordinarily will sit.
Speakers and Deputy Speakers
- 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.
- A judge designated by the Chief Justice must preside over the election of a Speaker. The Speaker presides over the election of a Deputy Speaker.
[Sub-s. (2) substituted by s. 9 of Act No. 34 of 2001.]
- The procedure set out in Part A of Schedule 3 applies to the election of Speakers and Deputy Speakers.
- 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.
- 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.
- Except where the Constitution provides otherwise
- a majority of the members of a provincial legislature must be present before a vote may be taken on a Bill or an amendment to a Bill;
- at least one third of the members must be present before a vote may be taken on any other question before the legislature; and
- all questions before a provincial legislature are decided by a majority of the votes cast.
- The member presiding at a meeting of a provincial legislature has no deliberative vote, but
- must cast a deciding vote when there is an equal number of votes on each side of a question; and
- may cast a deliberative vote when a question must be decided with a supporting vote of at least two thirds of the members of the legislature.
Permanent delegates' rights in provincial legislatures
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
- In exercising its legislative power, a provincial legislature may
- consider, pass, amend or reject any Bill before the legislature; and
- initiate or prepare legislation, except money Bills.
- A provincial legislature must provide for mechanisms
- to ensure that all provincial executive organs of state in the province are accountable to it; and
- to maintain oversight of
- the exercise of provincial executive authority in the province, including the implementation of legislation; and
- any provincial organ of state.
Evidence or information before provincial legislatures
A provincial legislature or any of its committees may
- summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
- require any person or provincial institution to report to it;
- compel, in terms of provincial legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and
- receive petitions, representations or submissions from any interested persons or institutions.
Internal arrangements, proceedings and procedures of provincial legislatures
- A provincial legislature may
- determine and control its internal arrangements, proceedings and procedures; and
- make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
- The rules and orders of a provincial legislature must provide for
- the establishment, composition, powers, functions, procedures and duration of its committees;
- the participation in the proceedings of the legislature and its committees of minority parties represented in the legislature, in a manner consistent with democracy;
- financial and administrative assistance to each party represented in the legislature, in proportion to its representation, to enable the party and its leader to perform their functions in the legislature effectively; and
- the recognition of the leader of the largest opposition party in the legislature, as the Leader of the Opposition.
- Members of a provincial legislature and the province's permanent delegates to the National Council of Provinces
- have freedom of speech in the legislature and in its committees, subject to its rules and orders; and
- are not liable to civil or criminal proceedings, arrest, imprisonment or damages for
- anything that they have said in, produced before or submitted to the legislature or any of its committees; or
- anything revealed as a result of anything that they have said in, produced before or submitted to the legislature or any of its committees.
- Other privileges and immunities of a provincial legislature and its members may be prescribed by national legislation.
- 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
- A provincial legislature must
- facilitate public involvement in the legislative and other processes of the legislature and its committees; and
- conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken
- to regulate public access, including access of the media, to the legislature and its committees; and
- to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.
- 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
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.
- A Bill is a money Bill if it-
- appropriates money;
- imposes provincial taxes, levies, duties or surcharges;
- abolishes or reduces, or grants exemptions from, any provincial taxes, levies, duties or surcharges; or
- authorises direct charges against a Provincial Revenue Fund.
- A money Bill may not deal with any other matter except-
- a subordinate matter incidental to the appropriation of money;
- the imposition, abolition or reduction of provincial taxes, levies, duties or surcharges;
- the granting of exemption from provincial taxes, levies, duties or surcharges; or
- the authorisation of direct charges against a Provincial Revenue Fund.
- A provincial Act must provide for a procedure by which the province's legislature may amend a money Bill.
[S. 120 substituted by s. 3 of Act No. 61 of 2001.]
Assent to Bills
- 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.
- 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
- assent to and sign the Bill; or
- refer it to the Constitutional Court for a decision on its constitutionality.
- If the Constitutional Court decides that the Bill is constitutional, the Premier must assent to and sign it.
Application by members to Constitutional Court
- 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.
- An application
- must be supported by at least 20 per cent of the members of the legislature; and
- must be made within 30 days of the date on which the Premier assented to and signed the Act.
- 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
- the interests of justice require this; and
- the application has a reasonable prospect of success.
- 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
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 ActsThe 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.