Section 104-114 Constitution of South Africa 1996

Section 104-114 Constitution of South Africa 1996

Section 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, and 114 of the Constitution of South Africa 1996 (as amended), among others, are under ‘Provincial Legislatures‘ of Chapter 6 of the Constitution. Chapter 6 is titled ‘Provinces‘.

Section 104 Constitution of South Africa 1996

Legislative authority of provinces

1. The legislative authority of a province is vested in its provincial legislature, and confers on the provincial legislature the power ­

a. to pass a constitution for its province or to amend any constitution passed by it in terms of sections 142 and 143;

b. to pass legislation for its province with regard to ­

i. any matter within a functional area listed in Schedule 4;

ii. any matter within a functional area listed in Schedule 5;

iii. any matter outside those functional areas, and that is expressly assigned to the province by national legislation; and

iv. any matter for which a provision of the Constitution envisages the enactment of provincial legislation; and

c. to assign any of its legislative powers to a Municipal Council in that province.

2. 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.

3. 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.

4. 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.

5. 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.

Section 105 Constitution of South Africa 1996

Composition and election of provincial legislatures 

1. A provincial legislature consists of women and men elected as members in terms of an electoral system that-

a. is prescribed by national legislation;

b. is based on that 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.

 [Sub-s. (1) amended by s. 3 of the Constitution Tenth Amendment Act of 2003 and by s. 3 of the Constitution Fourteenth Amendment Act of 2008.]

2. 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.

Section 106 Constitution of South Africa 1996

Membership 

1. Every citizen who is qualified to vote for the National Assembly is eligible to be a member of a provincial legislature, 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 members of the Executive Council of a province; and

ii. 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;

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 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.

2. 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.

3. A person loses membership of a provincial legislature if that person ­

a. ceases to be eligible; or

b. is absent from the legislature without permission in circumstances for which the rules and orders of the legislature prescribe loss of membership; or

c. Ceases to be a member of the party that nominated that person as a member of the legislature.

 [Sub-s. (3) substituted by s. 4 of the Constitution Tenth Amendment Act of 2003 and by s. 4 of the Constitution Fourteenth Amendment Act of 2008.]

4. Vacancies in a provincial legislature must be filled in terms of national legislation.

Section 107 Constitution of South Africa 1996

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.

Section 108 Constitution of South Africa 1996

Duration of provincial legislatures 

1. A provincial legislature is elected for a term of five years.

2. 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 the Constitution Fourth Amendment Act of 1999.]

3. 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.

4. 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.

Section 109 Constitution of South Africa 1996

Dissolution of provincial legislatures before expiry of term 

1. The Premier of a province must dissolve the provincial legislature if ­

a. the legislature has adopted a resolution to dissolve with a supporting vote of a majority of its members; and

b. three years have passed since the legislature was elected.

2. An Acting Premier must dissolve the provincial legislature if ­

a. there is a vacancy in the office of Premier; and

b. the legislature fails to elect a new Premier within 30 days after the vacancy occurred.

Section 110 Constitution of South Africa 1996

Sittings and recess periods

1. 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 the Constitution Sixth Amendment Act of 2001.]

2. The Premier of a province may summon the provincial legislature to an extraordinary sitting at any time to conduct special business.

3. A provincial legislature may determine where it ordinarily will sit.

Section 111 Constitution of South Africa 1996

Speakers and Deputy Speakers 

1. 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.

2. 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 the Constitution Sixth Amendment Act of 2001.]

3. The procedure set out in Part A of Schedule 3 applies to the election of Speakers and Deputy Speakers.

4. 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.

5. 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.

Section 112 Constitution of South Africa 1996

Decisions 

1. Except where the Constitution provides otherwise ­

a. 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;

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

c. all questions before a provincial legislature are decided by a majority of the votes cast.

2. The member presiding at a meeting of a provincial legislature 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 legislature.

Section 113 Constitution of South Africa 1996

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.

Section 114 Constitution of South Africa 1996

Powers of provincial legislatures

1. In exercising its legislative power, a provincial legislature may ­

a. consider, pass, amend or reject any Bill before the legislature; and

b. initiate or prepare legislation, except money Bills.

2. A provincial legislature must provide for mechanisms ­

a. to ensure that all provincial executive organs of state in the province are accountable to it; and

b. to maintain oversight of ­

i. the exercise of provincial executive authority in the province, including the implementation of legislation; and

ii. any provincial organ of state.

See also: Section 115-124 Constitution of South Africa 1996