Section 125-132 Constitution of South Africa 1996

Section 125, 126, 127, 128, 129, 130, 131, and 132 of the Constitution of South Africa 1996 (as amended), among others, are under ‘Provincial Executives‘ of Chapter 6 of the Constitution. Chapter 6 is titled ‘Provinces‘.

Section 125 Constitution of South Africa 1996

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 ­

a. implementing provincial legislation in the province;

b. 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;

c. 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;

d. developing and implementing provincial policy;

e. co-ordinating the functions of the provincial administration and its departments;

f. preparing and initiating provincial legislation; and

g. 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 ­

a. the Constitution; and

b. the provincial constitution, if a constitution has been passed for the province.

Section 126 Constitution of South Africa 1996

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 ­

a. must be in terms of an agreement between the relevant Executive Council member and the Municipal Council;

b. must be consistent with the Act in terms of which the relevant power or function is exercised or performed; and

c. takes effect upon proclamation by the Premier.

Section 127 Constitution of South Africa 1996

Powers and functions of Premiers 

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 ­

a. assenting to and signing Bills;

b. referring a Bill back to the provincial legislature for reconsideration of the Bill’s constitutionality;

c. referring a Bill to the Constitutional Court for a decision on the Bill’s constitutionality;

d. summoning the legislature to an extraordinary sitting to conduct special business;

e. appointing commissions of inquiry; and

f. calling a referendum in the province in accordance with national legislation.

Section 128 Constitution of South Africa 1996

Election of Premiers

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 the Constitution Sixth Amendment Act 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. (2) substituted by s. 10 of the Constitution Sixth Amendment Act of 2001.]

Section 129 Constitution of South Africa 1996

Assumption of office by Premiers

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.

Section 130 Constitution of South Africa 1996

Term of office and removal of Premiers

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 ­

a. a serious violation of the Constitution or the law;

b. serious misconduct; or

c. 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.

Section 131 Constitution of South Africa 1996

Acting Premiers

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:

a. A member of the Executive Council designated by the Premier.

b. A member of the Executive Council designated by the other members of the Council.

c. 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.

Section 132 Constitution of South Africa 1996

Executive Councils

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.

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See also: Section 133-141 Constitution of South Africa 1996