Constitution of the Western Cape, 1997/Chapter 3

by enacted by the Western Cape Provincial Parliament

Chapter 3

Provincial Parliament

Legislative authority

9.

(1)

The legislative authority of the Western Cape is vested in the Provincial Parliament.

(2)

The Provincial Parliament is bound only by the national Constitution and this Constitution, and must act in accordance with, and within the limits imposed by, these Constitutions.

(3)

The Provincial Parliament may—

(a)

replace, amend or repeal this Constitution;

(b)

pass legislation for the Western Cape in terms of the national Constitution and in accordance with this Constitution;

(c)

pass legislation for the Western Cape with regard to any matter assigned to the Western Cape by national legislation; and

(d)

assign to a Municipal Council any of its legislative powers referred to in paragraph (b) and, where it is permitted to do so, any of its legislative powers referred to in paragraph (c).

(4)

The Provincial Parliament may—

(a)

by a resolution recommend to the National Assembly that it passes legislation concerning any matter outside the Provincial Parliament's authority, or in respect of which an Act of Parliament prevails over provincial legislation;

(b)

by a resolution recommend to the National Council of Provinces that it passes legislation concerning any other matter; and

(c)

by a resolution adopted with a supporting vote of at least two thirds of its members request Parliament to change the name of the Province.

Bills to replace, amend or repeal this Constitution

10.

(1)

A Bill to replace, amend or repeal this Constitution—

(a)

must be passed by the Provincial Parliament with a supporting vote of at least two thirds of its members; and

(b)

may include only constitutional provisions.

(2)

At least 30 days before a Bill referred to in subsection (1) is introduced in the Provincial Parliament, the member or committee intending to introduce the Bill must—

(a)

publish, in the official gazette of the Province and in at least three newspapers circulating in the Western Cape, particulars of the proposed Bill for public comment; and

(b)

submit, in accordance with the rules of the Provincial Parliament, those particulars to municipalities within the Western Cape for their views.

(3)

When a Bill referred to in subsection (1) is introduced, the member or committee introducing the Bill must submit to the Speaker any written comments received from the public and from municipalities for tabling in the Provincial Parliament.

Certification

11.

If the Provincial Parliament has replaced or amended this Constitution, the Speaker must submit the text of the new constitution or the constitutional amendment to the Constitutional Court for certification.

Signing, safekeeping, publication and commencement of provincial constitution

12.

(1)

The Premier must assent to and sign the text of a new constitution or any constitutional amendment that has been certified by the Constitutional Court.

(2)

The text assented to and signed by the Premier must be published in both the national Government Gazette and the official gazette of the Province. It takes effect on publication or on a later date determined in terms of the new constitution or the constitutional amendment.

(3)

The signed text of a new constitution or a constitutional amendment is conclusive evidence of its provisions. After publication, it must be entrusted to the Constitutional Court for safekeeping.

Composition

13.

The Provincial Parliament consists of 42 elected members.

Election of Provincial Parliament

14.

The Provincial Parliament consists of persons elected as members in terms of an electoral system that—

(a)

is prescribed by national legislation;

(b)

is based on the Province's segment of the national common voters roll;

(c)

provides for a minimum voting age of 18 years; and

(d)

results, in general, in proportional representation.

Membership

15.

(1)

Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Provincial Parliament, except—

(a)

anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service, other than—

(i)

the Premier and other Provincial Ministers of the Western Cape; and

(ii)

other office-bearers whose functions are compatible with the functions of a member of the Provincial Parliament, and have been declared compatible with those functions by national legislation;

(b)

members of the National Assembly, permanent delegates to the National Council of Provinces or members of a Municipal Council;

(c)

unrehabilitated insolvents;

(d)

anyone declared to be of unsound mind by a court of the Republic; or

(e)

anyone who, after 3 February 1997, has been or 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.

(2)

A person who is not eligible to be a member of the Provincial Parliament in terms of subsection (1)(a) or (b) may be a candidate for the Provincial Parliament, subject to any limits or conditions determined by national legislation.

(3)

A person loses membership of the Provincial Parliament if that person—

(a)

ceases to be eligible;

(b)

resigns as a member; or

(c)

is absent from the Provincial Parliament without permission in circumstances for which the rules and orders of the Provincial Parliament prescribe loss of membership.

(4)

Vacancies in the Provincial Parliament must be filled in terms of national legislation.

Oath or affirmation

16.

Members of the Provincial Parliament must swear or affirm faithfulness to the Republic and the Western Cape and obedience to the national Constitution and this Constitution, in accordance with Schedule 1, before they begin to perform their functions as members.

Duration

17.

(1)

The Provincial Parliament is elected for a term of five years.

(2)

When the Provincial Parliament is dissolved in terms of section 18 or when its term expires, the Premier must, by proclamation, call and set dates for an election, which must be held within 90 days of the date when the Provincial Parliament was dissolved or when its term expired.

(3)

If the result of an election of the Provincial Parliament is not declared within the period determined by national legislation, or if an election is set aside by a court, another election must be held in terms of the national Constitution.

(4)

The Provincial Parliament 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 Provincial Parliament.

Dissolution of Provincial Parliament before its term expires

18.

(1)

The Premier must dissolve the Provincial Parliament if—

(a)

the Provincial Parliament has adopted a resolution to dissolve with a supporting vote of a majority of all its members; and

(b)

three years have passed since the Provincial Parliament was elected.

(2)

An Acting Premier must dissolve the Provincial Parliament if there is a vacancy in the office of Premier and the Provincial Parliament fails to elect a new Premier within 30 days after the vacancy occurred.

Seat of Provincial Parliament, sittings and recess periods

19.

(1)

The seat of the Provincial Parliament is Cape Town.

(2)

The Provincial Parliament may determine that it or any of its committees may, when necessary, sit elsewhere in the Western Cape.

(3)

After an election, the first sitting of the Provincial Parliament takes 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.

(4)

The Provincial Parliament may determine the times and duration of its other sittings and its recess periods.

(5)

The Premier may summon the Provincial Parliament to an extraordinary sitting at any time to conduct special or urgent business.

Speaker

20.

(1)

The Provincial Parliament must elect a Speaker from amongst its members at the first sitting after its election, or when necessary to fill a vacancy.

(2)

A judge designated by the President of the Constitutional Court must preside over the election of the Speaker. The procedure set out in Schedule 2 to this Constitution applies to the election of the Speaker.

(3)

The Provincial Parliament may—

(a)

elect a Deputy Speaker from among its members; and

(b)

elect other presiding officers from among its members to assist the Speaker and the Deputy Speaker.

(4)

The Provincial Parliament may remove the Speaker, Deputy Speaker and any other presiding officer by a resolution adopted with a supporting vote of a majority of all its members.

Quorum and decisions

21.

(1)

Except where this Constitution provides otherwise—

(a)

a majority of the members of the Provincial Parliament must be present before a vote may be taken on a Bill or an amendment to a Bill;

(b)

at least one third of the members must be present before a vote may be taken on any other question before the Provincial Parliament; and

(c)

all questions before the Provincial Parliament are decided by a majority of the votes cast.

(2)

The member presiding at a meeting of the Provincial Parliament has no deliberative vote, but—

(a)

must cast a deciding vote when there is an equal number of votes on each side of a question; and

(b)

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 Provincial Parliament.

Permanent delegates' rights in Provincial Parliament

22.

Permanent delegates to the National Council of Provinces may attend, and speak in, the Provincial Parliament and its committees, but may not vote. The Provincial Parliament may require a permanent delegate to attend the Provincial Parliament or its committees.

Powers of Provincial Parliament

23.

(1)

In exercising its legislative authority, the Provincial Parliament may—

(a)

consider, pass, amend or reject any Bill before it; and

(b)

initiate or prepare legislation, except money Bills.

(2)

Subject to subsection (4), the Provincial Parliament must provide for mechanisms—

(a)

to ensure that all provincial organs of state are accountable to it; and

(b)

to oversee—

(i)

the exercise of provincial executive authority, including the implementation of legislation; and

(ii)

any provincial organ of state.

(3)

The Provincial Parliament may—

(a)

determine and control its own internal arrangements, proceedings and procedures; and

(b)

make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public participation.

(4)

The Provincial Parliament must in its rules and orders provide for—

(a)

the establishment, composition, powers, functions, procedures and duration of its committees;

(b)

the participation in the proceedings of the Provincial Parliament and its committees of minority parties represented in the Provincial Parliament in a manner consistent with democracy;

(c)

the conferral on its committees of such powers as are necessary for them to—

(i)

oversee the activities of the provincial organs of state;

(ii)

hold the provincial executive accountable; and

(iii)

promote transparency, accountability and the effective management of the provincial economy, provincial budget, provincial debt and the provincial public sector;

(d)

a standing committee of the Provincial Parliament to monitor the socio-economic conditions of the residents of the Western Cape, and to make recommendations to the Provincial Parliament concerning the improvements of these conditions;

(e)

co-ordination between the Provincial Parliament and its committees, and the National Council of Provinces;

(f)

the receipt of petitions, representations or submissions from any interested person or institution;

(g)

the participation of representatives of the different categories of local government in the Western Cape in the deliberations of standing committees on Bills that affect the interests of municipalities in the Western Cape; and

(h)

financial and administrative assistance to each party represented in the Provincial Parliament, in proportion to its representation, to enable the party and its leader to perform their functions in the Provincial Parliament effectively.

Leader of the Opposition

24.

The rules and orders of the Provincial Parliament must provide for the recognition of the Leader of the Opposition in the Provincial Parliament.

Evidence or information before Provincial Parliament

25.

The Provincial Parliament or any of its committees may—

(a)

summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;

(b)

require any natural or juristic person or provincial organ of state to report to it;

(c)

compel, in terms of provincial legislation or the rules and orders of the Provincial Parliament, any person or provincial organ of state to comply with a summons or requirement in terms of paragraph (a) or (b); and

(d)

receive petitions, representations or submissions from any interested persons or institution.

Privilege

26.

Members of the Provincial Parliament and the permanent delegates of the Western Cape to the National Council of Provinces—

(a)

have freedom of speech in the Provincial Parliament and in its committees, subject to its rules and orders; and

(b)

are not liable to civil or criminal proceedings, arrest, imprisonment or damages for—

(i)

anything that they have said in, produced before or submitted to the Provincial Parliament 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 Provincial Parliament or any of its committees.

Code of Conduct

27.

Provincial legislation must provide for a code of conduct for the members of the Provincial Parliament.

Public access

28.

(1)

The proceedings of the Provincial Parliament and its committees take place in public, but reasonable steps may be taken—

(a)

to regulate public access, including access of the media, to the Provincial Parliament and its committees; and

(b)

to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of any person.

(2)

The public, including the media, may not be excluded from a sitting of a committee of the Provincial Parliament unless it is reasonable and justifiable to do so in an open and democratic society.

(3)

The Provincial Parliament must facilitate public participation in its activities and those of its committees.

Introduction of Bills

29.

Only a Provincial Minister, a committee or member of the Provincial Parliament may introduce a Bill in the Provincial Parliament. If the Bill is a money Bill, only the Provincial Minister responsible for financial matters may introduce it in the Provincial Parliament.

Money Bills

30.

(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 Provincial Parliament may amend a money Bill.

Assent to Bills

31.

(1)

The Premier of the Western Cape must within 45 days after a Bill has been passed by the Provincial Parliament—

(a)

assent to and sign the Bill; or

(b)

if the Premier has reservations about the constitutionality of the Bill, refer it back to the Provincial Parliament for reconsideration.

(2)

If, after reconsideration, the Bill fully accommodates the Premier’s reservations, the Premier must, within 45 days of the date of that reconsideration, assent to and sign the Bill; if not, the Premier must, within 45 days of the date of that reconsideration—

(a)

assent to and sign the Bill; or

(b)

refer it to the Constitutional Court for a decision on its constitutionality.

(3)

If the Constitutional Court decides that the Bill is constitutional, the Premier must assent to and sign it within 14 days.

Application by members to Constitutional Court

32.

(1)

Members of the Provincial Parliament may apply to the Constitutional Court for an order declaring that all or part of a provincial Act is unconstitutional.

(2)

An application—

(a)

must be supported by at least 20 per cent of the members of the Provincial Parliament; and

(b)

must be made within 30 days of the date on which the Premier assented to and signed the Act.

Publication and commencement of provincial Acts

33.

(1)

A Bill assented to and signed by the Premier becomes an Act of the Western Cape. It must be published promptly in the official gazette of the Province and takes effect when it is published or on a date determined in terms of the Act.

(2)

Provincial legislation must provide for the dissemination and further publication of particulars of provincial Acts.

Safekeeping of provincial Acts

34.

The signed copy of an Act is conclusive evidence of its provisions. After publication, the Act must be entrusted to the Constitutional Court for safekeeping.