Constitution of the Republic of South Africa, 1993/1994-11-23/Chapter 6

by ratified by the Multiparty Negotiating Forum and adopted and amended by the Parliament of South Africa

Chapter 6

The National Executive

Executive authority of the Republic

75. The executive authority of the Republic with regard to all matters falling within the legislative competence of Parliament shall vest in the President, who shall exercise and perform his or her powers and functions subject to and in accordance with this Constitution.

Head of State

76. The President shall be the Head of State.

Election of President

77. (1) (a) The National Assembly shall at its first sitting after it has been convened in terms of section 46(2) elect one of its members as the President.

(b) The National Assembly and the Senate shall thereafter, as often as it again becomes necessary to elect a President, elect at a joint sitting one of the members of the National Assembly as the President.

(2) (a) The Chief Justice, or a judge of the Supreme Court designated by the Chief Justice for this purpose, shall preside over any sitting at which an election referred to in subsection (1) takes place.

(b) An election referred to in subsection (1) shall be conducted in accordance with Schedule 5.

(3) The election of a President in terms of subsection (1)(b) shall take place at a time and on a date fixed by the Chief Justice: Provided that—

(a)

if such an election of a President is occasioned by reason of a dissolution of Parliament, it shall take place within 10 days after the Senate was convened after the election of the National Assembly held in pursuance of such dissolution; or

(b)

if such an election of a President is occasioned by reason of a vacancy in the office of President, it shall take place within 30 days after the vacancy arose.

(4) On being elected, the President shall vacate his or her seat in the National Assembly.

(5) During the period in which the President continues in office in terms of section 80(1)(b), he or she shall for the purposes of section 42(1)(e) be deemed not to hold an office of profit under the Republic.

Oath or affirmation

78. The President-elect shall, before formally assuming office, make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief Justice or a judge of the Supreme Court designated by the Chief Justice for this purpose.

Remuneration and pension of President

79. There shall be paid to the President out of and as a charge on the National Revenue Fund and apart from any privilege which he or she may enjoy, such remuneration and allowances, and upon his or her retirement, or to his or her widow or widower or dependent or nominee (including his or her estate) as he or she may elect, on his or her death, such pension and pension benefits, as may be determined from time to time by resolution of Parliament.

[S. 79 substituted by s. 1 of Act No. 29 of 1994.]

Tenure of office of President

80. (1) The President elected in terms of section 77(1)(a) shall, subject to sections 87 and 93(2), hold office—

(a)

for the period terminating on a date five years as from the date of the first sitting of the National Assembly under this Constitution; or

(b)

if Parliament is dissolved during such period, for the period until a President has been elected in terms of section 77(1)(b) after such dissolution and has assumed office.

(2) A President elected in terms of section 77(1)(b) shall, subject to subsection (1)(b) of this section and sections 87 and 93(2), hold office for the unexpired part of the period referred to in subsection (1)(a) of this section.

Responsibilities of President

81. (1) The President shall be responsible for the observance of the provisions of this Constitution by the executive and shall as head of state defend and uphold the Constitution as the supreme law of the land.

(2) The President shall with dignity provide executive leadership in the interest of national unity in accordance with this Constitution and the law of the Republic.

(3) The President shall not hold any other public office and shall not perform remunerative work outside the duties of his or her office.

Powers and functions of President

82. (1) The President shall be competent to exercise and perform the following powers and functions, namely—

(a)

to assent to, sign and promulgate Bills duly passed by Parliament;

(b)

in the event of a procedural shortcoming in the legislative process, to refer a Bill passed by Parliament back for further consideration by Parliament;

(c)

to convene meetings of the Cabinet;

(d)

to refer disputes of a constitutional nature between parties represented in Parliament or between organs of state at any level of government to the Constitutional Court or other appropriate institution, commission or body for resolution;

(e)

to confer honours;

(f)

to appoint, accredit, receive and recognise ambassadors, plenipotentiaries, diplomatic representatives and other diplomatic officers, consuls and consular officers;

(g)

to appoint commissions of enquiry;

(h)

to make such appointments as may be necessary under powers conferred upon him or her by this Constitution or any other law;

(i)

to negotiate and sign international agreements;

(j)

to proclaim referenda and plebiscites in terms of this Constitution or an Act of Parliament; and

(k)

to pardon or reprieve offenders, either unconditionally or subject to such conditions as he or she may deem fit, and to remit any fines, penalties or forfeitures.

(2) The President shall consult the Executive Deputy Presidents—

(a)

in the development and execution of the policies of the national government;

(b)

in all matters relating to the management of the Cabinet and the performance of Cabinet business;

(c)

in the assignment and allocation of functions contemplated in section 84(5) to an Executive Deputy President;

(d)

regarding appointments under subsection (1)(f); and

(e)

before exercising any of the competences referred to in subsection (1)(g) to (k).

(3) The President shall exercise and perform all powers and functions assigned to him or her by this Constitution or any other law, except those specified in subsections (1) and (2) or where otherwise expressly or by implication provided in this Constitution, in consultation with the Cabinet: Provided that the Cabinet may delegate its consultation function in terms of this subsection, with reference to any particular power or function of the President, to any Minister or Ministers.

(4) (a) The President shall be the Commander-in-Chief of the National Defence Force.

(b) The President may—

(i)

with the approval of Parliament, declare a state of national defence;

(ii)

employ the National Defence Force in accordance with and subject to sections 227 and 228; and

(iii)

confer upon members of the National Defence Force permanent commissions and cancel such commissions.

Confirmation of executive acts of President

83. (1) Decisions of the President taken in terms of section 82 shall be expressed in writing under his or her signature.

(2) Any instrument signed by the President in the exercise or performance of a power or function referred to in section 82(3) shall be countersigned by a Minister.

(3) The signature of the President on any instrument shall be confirmed by the seal of the Republic.

Executive Deputy Presidents

84. (1) Every party holding at least 80 seats in the National Assembly shall be entitled to designate an Executive Deputy President from among the members of the National Assembly.

(2) Should no party or only one party hold 80 or more seats in the National Assembly, the party holding the largest number of seats and the party holding the second largest number of seats shall each be entitled to designate one Executive Deputy President from among the members of the National Assembly.

(3) On being designated as such, an Executive Deputy President may elect to vacate or not to vacate his or her seat in the National Assembly.

(4) Section 81 shall apply mutatis mutandis to an Executive Deputy President.

(5) An Executive Deputy President may exercise the powers and shall perform the functions vested in the office of Executive Deputy President by this Constitution or assigned to him or her by the President.

(6) An Executive Deputy President shall, before formally assuming office, make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief Justice or a judge of the Supreme Court designated by the Chief Justice for this purpose.

Tenure of office of Executive Deputy Presidents and filling of vacancies

85. (1) An Executive Deputy President shall, subject to section 87, hold office—

(a)

for the period terminating on a date five years as from the date of the first sitting of the National Assembly under this Constitution, unless he or she is before the expiry of such period replaced as Executive Deputy President by the party which designated him or her; or

(b)

if Parliament is dissolved during such period, for the period until a President has been elected in terms of section 77(1)(b) after such dissolution and has assumed office.

(2) If an Executive Deputy President vacates his or her office, section 84(1) or (2) shall apply mutatis mutandis in respect of the filling of the vacancy.

(3) An Executive Deputy President designated to fill a vacancy shall, subject to subsection (1)(b) of this section and section 87, hold office for the unexpired part of the period referred to in subsection (1)(a) of this section.

Acting President

86. (1) The President shall appoint one of the Executive Deputy Presidents, or if no Executive Deputy President is available, a Minister, to act as President during his or her absence or temporary incapacity.

(2) In designating an Acting President under subsection (1), the President shall take into consideration the exigencies of government and the spirit underlying the concept of a government of national unity.

(3) Should it be necessary that an Acting President be appointed and the President is absent or unable to make such an appointment, or if the office of President is vacant, the other members of the Cabinet shall make such appointment, taking into consideration the exigencies of government and the spirit underlying the concept of a government of national unity.

(3A) (a) The person appointed as Acting President shall, subject to paragraph (b), before formally assuming office make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief Justice or a judge of the Supreme Court designated by the Chief Justice for this purpose.

(b) An oath or solemn affirmation made and subscribed by a person appointed as Acting President shall for purposes of any subsequent appointment of that person as Acting President during the term of office of a particular President, be deemed to be an oath or solemn declaration made and subscribed by that person also in respect of such subsequent appointment.

[Sub-s. (3A) inserted by s. 2 of Act No. 29 of 1994.]

(4) An Acting President shall while acting as President have all the powers and functions vested in the office of President.

Removal from office of President or Executive Deputy President

87. The President or an Executive Deputy President shall cease to hold office on a resolution adopted at a joint sitting of the National Assembly and the Senate by a majority of at least two-thirds of the total number of members of the Houses and impeaching the President or such Executive Deputy President on the ground of a serious violation of this Constitution or the other laws of the Republic, or of misconduct or inability rendering him or her unfit to exercise and perform his or her powers and functions in accordance with section 81 or 84(4), as the case may be.

Cabinet

88. (1) The Cabinet shall consist of the President, the Executive Deputy Presidents and—

(a)

not more than 27 Ministers who are members of Parliament and appointed in terms of subsections (2) to (6); and

(b)

not more than one Minister who is not a member of Parliament and appointed in terms of subsection (6A), provided the President, acting in consultation with the Executive Deputy Presidents and the leaders of the participating parties, deems the appointment of such a Minister expedient.

[Sub-s. (1) substituted by s. 2(a) of Act No. 14 of 1994.]

(2) A party holding at least 20 seats in the National Assembly and which has decided to participate in the government of national unity, shall be entitled to be allocated one or more of the Cabinet portfolios in respect of which Ministers referred to in subsection (1)(a) are to be appointed, in proportion to the number of seats held by it in the National Assembly relative to the number of seats held by the other participating parties.

[Sub-s. (2) substituted by s. 2(b) of Act No. 14 of 1994.]

(3) Cabinet portfolios shall for the purposes of subsection (2) be allocated to the respective participating parties in accordance with the following formula:

(a)

A quota of seats per portfolio shall be determined by dividing the total number of seats in the National Assembly held jointly by the participating parties by the number of portfolios in respect of which Ministers referred to in subsection (1)(a) are to be appointed, plus one.

[Para. (a) substituted by s. 2(c) of Act No. 14 of 1994.]

(b)

The result, disregarding third and subsequent decimals, if any, shall be the quota of seats per portfolio.

(c)

The number of portfolios to be allocated to a participating party shall be determined by dividing the total number of seats held by such party in the National Assembly by the quota referred to in paragraph (b).

(d)

The result shall, subject to paragraph (e), indicate the number of portfolios to be allocated to such party.

(e)

Where the application of the above formula yields a surplus not absorbed by the number of portfolios allocated to a party, such surplus shall compete with other similar surpluses accruing to another party or parties, and any portfolio or portfolios which remain unallocated shall be allocated to the party or parties concerned in sequence of the highest surplus.

(4) The President shall after consultation with the Executive Deputy Presidents and the leaders of the participating parties—

(a)

determine the specific portfolios to be allocated to the respective participating parties in accordance with the number of portfolios allocated to them in terms of subsection (3);

(b)

appoint in respect of each such portfolio a member of Parliament who is a member of the party to which that portfolio was allocated under paragraph (a), as the Minister responsible for that portfolio;

(c)

if it becomes necessary for the purposes of this Constitution or in the interest of good government, vary any determination under paragraph (a) subject to subsection (3);

(d)

terminate any appointment under paragraph (b)—

(i)

if he or she is requested to do so by the leader of the party of which the Minister in question is a member; or

(ii)

if it becomes necessary for the purposes of this Constitution or in the interest of good government; or

(e)

fill, when necessary, subject to paragraph (b), a vacancy in the office of Minister.

(5) Subsection (4) shall be implemented in the spirit underlying the concept of a government of national unity, and the President and the other functionaries concerned shall in the implementation of that subsection endeavour to achieve consensus at all times: Provided that if consensus cannot be achieved on—

(a)

the exercise of a power referred to in paragraph (a), (c) or (d)(ii) of that subsection, the President’s decision shall prevail;

(b)

the exercise of a power referred to in paragraph (b), (d)(i) or (e) of that subsection affecting a person who is not a member of the President’s party, the decision of the leader of the party of which such person is a member shall prevail; and

(c)

the exercise of a power referred to in paragraph (b) or (e) of that subsection affecting a person who is a member of the President’s party, the President’s decision shall prevail.

(6) If any determination of portfolio allocations is varied under subsection (4)(c), the affected Ministers shall vacate their portfolios but shall be eligible, where applicable, for re-appointment to other portfolios allocated to their respective parties in terms of the varied determination.

(6A) The President shall—

(a)

in consultation with the Executive Deputy Presidents and the leaders of the participating parties—

(i)

determine a specific portfolio for a Minister referred to in subsection (1)(b) should it become necessary pursuant to a decision of the President under that subsection;

(ii)

appoint in respect of such a portfolio a person who is not a member of Parliament, as the Minister responsible for that portfolio;

(iii)

fill, if necessary, a vacancy in respect of that portfolio; or

(b)

after consultation with the Executive Deputy Presidents and the leaders of the participating parties terminate any appointment under paragraph (a) if it becomes necessary for the purposes of this Constitution or in the interest of good government.

[Sub-s. (6A) inserted by s. 2(d) of Act No. 14 of 1994.]

(7) A Minister shall, before formally assuming office, make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief Justice or a judge of the Supreme Court designated by the Chief Justice for this purpose.

(8) No member of the Cabinet may take up any other paid employment, engage in activities inconsistent with his or her membership of the Cabinet, or expose himself or herself to any situation which carries with it the risk of a conflict between his or her responsibilities as a member of the Cabinet and his or her private interests.

(9) No member of the Cabinet shall use his or her position as such, or directly or indirectly use information entrusted confidentially to him or her in such capacity, to enrich himself or herself or any other person.

(10) There shall, subject to section 207(2), be paid out of and as a charge on the National Revenue Fund to an Executive Deputy President and to a Minister such remuneration and allowances as may be prescribed by or determined under an Act of Parliament.

[Sub-s. (10) substituted by s. 2 of Act No. 13 of 1994.]

Cabinet procedure

89. (1) Meetings of the Cabinet shall be presided over by the President, or, if the President so instructs, by an Executive Deputy President: Provided that the Executive Deputy Presidents shall preside over meetings of the Cabinet in turn unless the exigencies of government and the spirit underlying the concept of a government of national unity otherwise dictate.

(2) The Cabinet shall function in a manner which gives consideration to the consensus-seeking spirit underlying the concept of a government of national unity as well as the need for effective government.

(3) Where an Executive Deputy President presides over a meeting of the Cabinet otherwise than in the capacity of Acting President, a decision in the Cabinet on any matter shall be submitted to the President before its implementation and shall upon its ratification by the President be deemed to be a decision taken in consultation with the Cabinet in accordance with section 82(3).

Temporary assignment of Minister’s powers and functions to another Minister

90. Whenever a Minister is absent or for any reason unable to exercise and perform any of the powers and functions assigned to him or her, or whenever a Minister has vacated his or her office and a successor has not yet been appointed, the President may appoint any other Minister to act in the said Minister’s stead, either generally or in the exercise or performance of any specific power or function.

Transfer of Minister’s powers and functions to another Minister

91. (1) The President may assign the administration of a law which is entrusted to any particular Minister or which entrusts to any particular Minister any power or function, to any other Minister.

(2) Any reference in such a law to a particular Minister as the Minister to whom the administration of such law is entrusted, shall upon the assignment under subsection (1) of its administration to another Minister, be construed as a reference to the latter.

Accountability of Ministers and Cabinet

92. (1) A Minister shall be accountable individually both to the President and to Parliament for the administration of the portfolio entrusted to him or her, and all members of the Cabinet shall correspondingly be accountable collectively for the performance of the functions of the national government and for its policies.

(2) A Minister shall administer his or her portfolio in accordance with the policy determined by the Cabinet.

(3) If a Minister fails to administer his or her portfolio in accordance with the policy of the Cabinet, the President may require the Minister concerned to bring the administration of the portfolio into conformity with such policy.

(4) If the Minister concerned fails to comply with a requirement of the President under subsection (3), the President may—

(a)

in the case of a Minister referred to in section 88(1)(a), after consultation with the Minister and, if the Minister is not a member of the President’s party, or is not the leader of a participating party, also after consultation with the leader of such Minister’s party;

(b)

in the case of a Minister referred to in section 88(1)(b), after consultation with the Executive Deputy Presidents and the leaders of the participating parties,

remove the Minister from office.

[Sub-s. (4) substituted by s. 3 of Act No. 14 of 1994.]

Votes of no confidence

93. (1) If Parliament passes a vote of no confidence in the Cabinet, including the President, the President shall, unless he or she resigns, dissolve Parliament and call an election in accordance with section 39.

(2) If Parliament passes a vote of no confidence in the President, but not in the other members of the Cabinet, the President shall resign.

(3) If Parliament passes a vote of no confidence in the Cabinet, excluding the President, the President may—

(a)

resign;

(b)

reconstitute the Cabinet in accordance with section 88(4); or

(c)

dissolve Parliament and call an election in accordance with section 39.

(4) The President shall where required, or where he or she elects, to do so in terms of this section, dissolve Parliament by proclamation in the Gazette within 14 days of the relevant vote of no confidence.

Appointment of Deputy Ministers

94. (1) The President may, after consultation with the Executive Deputy Presidents and the leaders of the parties serving in the Cabinet, establish deputy ministerial posts.

(2) A party shall be entitled to be allocated one or more of the deputy ministerial posts in the same proportion and according to the same formula as that in which the portfolios in the Cabinet are allocated to it.

(3) The provisions of section 88(4) to (6) and (7) to (10) shall apply mutatis mutandis in respect of Deputy Ministers, and in such application a reference to—

(a)

a Minister or portfolio shall be construed as a reference to a Deputy Minister and a deputy ministerial post, respectively; and

(b)

subsection (3) of section 88 shall be construed as a reference to subsection (2) of this section.

[Sub-s. (3) amended by s. 4 of Act No. 14 of 1994.]

(4) If a person is appointed as the Deputy Minister of any portfolio entrusted to a Minister—

(a)

such Deputy Minister shall exercise and perform on behalf of the relevant Minister any of the powers and functions assigned to such Minister in terms of any law or otherwise which may, subject to the directions of the President, be assigned to him or her by such Minister; and

(b)

any reference in any law to such a Minister shall be construed as including a reference to the Deputy Minister acting in pursuance of an assignment under paragraph (a) by the Minister for whom he or she acts.

(5) Whenever a Deputy Minister is absent or for any reason unable to exercise or perform any of the powers or functions of his or her office, the President may appoint any other Deputy Minister or any other person to act in the said Deputy Minister’s stead, either generally or in the exercise or performance of any specific power or function.

Composition and functioning of Cabinet in event of non-participation by parties

95. (1) If every party entitled to designate an Executive Deputy President, other than the President’s party, fails to do so, the Executive Deputy President of the President’s party shall exercise and perform the powers and functions of the Executive Deputy Presidents.

(2) If any party entitled to Cabinet portfolios declines to serve in the Cabinet, such party shall be disregarded in the determination of portfolio allocations in terms of section 88.

(3) If all parties entitled to Cabinet portfolios, other than the President’s party, decline to serve in the Cabinet, appointments to the Cabinet shall be made at the discretion of the President.