Contents: Obligations of Parliament and its separate bodies

A. Law-making

1. CONSTITUTIONAL PROVISIONS REGARDING LEGISLATION

[note: Acts that give effect to the constitutional provision are listed in square brackets under the relevant provision. This is not to suggest that the constitutional obligation has been exhaustively met. Regulations made in terms of these Acts have not been listed.]

1.1 Express obligations to pass legislation

The Constitution of the Republic of South Africa, 1996

Section 3 Citizenship

[SOUTH AFRICAN CITIZENSHIP ACT 88 OF 1995]
National legislation must provide for the acquisition, loss and restoration of citizenship.

Section 9 Equality

[PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT 4 OF 2000]
National legislation must be enacted to prevent or prohibit unfair discrimination on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Section 25 Property

[EXTENSION OF SECURITY OF TENURE ACT 62 OF 1997]
Parliament must enact the legislation that ensures that a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled either to tenure which is legally secure or to comparable redress.

Section 32 Access to information

[PROMOTION OF ACCESS TO INFORMATION ACT 2 OF 2000]
National legislation must be enacted to give effect to the right to access to information held by the state and information that is held by another person that is required for the exercise of protection of any rights. Such legislation may provide for reasonable measures to alleviate the administrative and financial burden on the state.

Section 33 Just administrative action

[PROMOTION OF ADMINISTRATIVE JUSTICE ACT 3 OF 2000]
National legislation must be enacted to give effect to the right to lawful, reasonable and procedurally fair administrative action as well as the right to written reasons where a person’s rights have been adversely affected by administrative action. Such legislation must provide for the review of administrative action by a court or an independent and impartial tribunal, must impose a duty on the state to give effect to the rights contained in this section, and must promote efficient administration.
Section 41 Principles of co-operative government and intergovernmental relations

[INTERGOVERNMENTAL FISCAL RELATIONS ACT 97 OF 1997]

An Act of Parliament must provide a framework that ensures effective intergovernmental relations and the settlement of intergovernmental disputes.

Section 46 Composition and election

[ELECTORAL ACT 73 OF 1998]
An Act of Parliament must provide a formula for determining the number of members of the National Assembly.

Section 65 Decisions

[MANDATING PROCEDURES OF PROVINCES ACT 52 of 2008]
An Act of Parliament, enacted in accordance with section 76, must provide for a uniform procedure in terms of which provincial legislatures confer authority on their delegations to cast votes on their behalf in the National Council of Provinces.
Section 77 (3) Money Bills

[MONEY BILLS AMENDMENT PROCEDURE AND RELATED MATTERS ACT 9 OF 2009]
All money bills must be considered in accordance with the procedure established by section 75. An Act of Parliament must provide for a procedure to amend money Bills before Parliament.

Section 155 Establishment of municipalities

[LOCAL GOVERNMENT: MUNICIPAL STRUCTURES ACT 117 OF 1998]

[LOCAL GOVERNMENT: CROSS-BOUNDARY MUNICIPALITIES ACT 29 OF 2000]

National legislation must define the different types of municipality that may be established, as well as establish criteria determining how different types of municipalities are to be distributed and how their boundaries are to be determined. National legislation must further determine the division of powers and functions among municipalities.

Section 163 Organised local government

[ORGANISED LOCAL GOVERNMENT ACT 52 OF 1997]
An Act of Parliament must provide for the recognition of national and provincial organisations representing municipalities and determine procedures by which local government consults with and participates in the national sphere of government, including the appointment of members of the Financial and Fiscal Commission.

Section 171 Court procedures

[MAGISTRATES' COURTS ACT 32 OF 1944]

[SUPREME COURT ACT 59 OF 1959]

All courts function in terms of national legislation, and their rules and procedures must be provided for in terms of national legislation.

Section 172 Powers of courts in constitutional matters

[CONSTITUTIONAL COURT COMPLEMENTARY ACT AMENDMENT ACT 79 OF 1997]
National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court.

Section 179 Prosecuting authority

[NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998]
The National Prosecuting Authority is structured in terms of an Act of Parliament and consists of the National Director of Public Prosecutions as well as Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.
National legislation must ensure that the Directors of Public Prosecutions are appropriately qualified and are responsible for prosecutions in specific jurisdictions, subject to the power of the National Director of Public Prosecutions to issue policy directives and to review decisions whether or not to prosecute. National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. All matters concerning the prosecuting authority that are not expressly dealt with in the Constitution must be determined by national legislation.

Section 186 Composition of Commission

[COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES ACT 19 OF 2002]
National Legislation must prescribe the number of members of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and their appointment and terms of office.

Section 191 Composition of Electoral Commission

[ELECTORAL COMMISSION ACT 51 OF 1996]
The Electoral Commission must be composed of at least three persons. The number of members and their terms of office must be prescribed by national legislation.

Section 192 Broadcasting Authority

[INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA ACT 13 OF 2000]

[BROADCASTING ACT 4 OF 1999]

National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society.

Section 195 Basic values and principles governing public administration

[LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT 32 OF 2000, section 50, schedule 2]

[WATER SERVICES ACT 108 OF 1997, sections 49 and 61]

[PROMOTION OF ADMINISTRATIVE JUSTICE ACT 3 OF 2000]
National legislation must ensure the promotion of the democratic values and principles enshrined in public administration. National legislation must regulate the appointment of persons in the public administration on policy reasons. Legislation regulating public administration may differentiate between different sectors, administrations or institutions and must take into account the nature and functions of different sectors, administrations or institutions of public administration.

Section 196 Public Service Commission

[PUBLIC SERVICE COMMISSION ACT 46 OF 1997]
In terms of subsection (2) the Public Service Commission must be regulated by national legislation.

Section 197 Public Service

[PUBLIC SERVICE ACT, 1994]
The Public Service, within the Public Administration, must function, and be structured, in terms of national legislation. The terms and conditions of employment in the public service must be regulated by national legislation. Employees are entitled to a fair pension as regulated by national legislation.

Section 204 Defence civilian secretariat

[DEFENCE ACT 42 OF 2002, Chapter 2]
A civilian secretariat for defence must be established by national legislation.

Section 205 Police service

[SOUTH AFRICAN POLICE SERVICE ACT 68 OF 1995]
National legislation must establish the powers and functions of the national police service operating on national, provincial and local level and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.

Section 206 Political responsibility

[SOUTH AFRICAN POLICE SERVICE ACT 68 OF 1995, Chapter 10 and Chapter 12]
National legislation must establish an independent police complaints body which, when it receives a complaint by a provincial executive, investigates alleged misconduct of, or offence committed by, a member of the police. National legislation must also provide a framework for the establishment, powers, functions and control of municipal police services.

Section 208 Police civilian secretariat

[SOUTH AFRICAN POLICE SERVICE ACT 68 OF 1995, Sections 2 and 3]
National legislation must establish a civilian secretariat for the police service.

Section 210 Powers, functions and monitoring

[INTELLIGENCE SERVICES ACT 65 OF 2002]

[INTELLIGENCE SERVICES OVERSIGHT ACT 40 OF 1994]

National legislation must regulate the objects, powers and functions of the intelligence services, including any intelligence division of the defence force or police service, and must provide for the co-ordination of all intelligence services, and civilian monitoring of the activities of those services.

Section 214 Equitable shares and allocations of revenue

[annual DIVISION OF REVENUE ACT]
An Act of Parliament must provide for the equitable division of national revenue among the spheres of government, for the determination of each province's equitable share, and any conditional allocations made by national government.

Section 215 National, provincial and municipal budgets

[LOCAL GOVERNMENT: MUNICIPAL FINANCE MANAGEMENT ACT 56 OF 2003, Sections 17, 20 and 21]
National legislation must prescribe the form of national, provincial and municipal budgets, when national and provincial budgets must be tabled, and that budgets in each sphere of government must show the sources of revenue and the way in which proposed expenditure will comply with national legislation.

Section 216 Treasury control

[PUBLIC FINANCE MANAGEMENT ACT 1 OF 1999, Chapter 2, part 1]

[FINANCIAL MANAGEMENT OF PARLIAMENT ACT 10 OF 2009]
National legislation must establish a national treasury and prescribe measures to ensure both transparency and expenditure control in each sphere of government.

Section 217 Procurement

[PREFERENTIAL PROCUREMENT POLICY FRAMEWORK ACT 5 OF 2000]
National legislation must provide for a framework in which a procurement policy is implemented that allows for preferential treatment.

Section 219 Remuneration of persons holding public office

[REMUNERATION OF PUBLIC OFFICE BEARERS ACT 20 OF 1998]

[SOUTH AFRICAN POLICE SERVICE ACT 68 OF 1995, section 11]

[none for last requirement]
An Act of Parliament must establish a framework for determining the salaries, allowances and benefits of members of the National Assembly, permanent delegates to the National Council of Provinces, members of the Cabinet, Deputy Ministers, traditional leaders and members of any councils of traditional leaders and the upper limit of salaries, allowances or benefits of members of provincial legislatures, members of Executive Councils and members of Municipal Councils of the different categories.
National legislation must establish an independent commission to make recommendations concerning the salaries, allowances and benefits referred to above. Parliament must consider the recommendations of the commission in passing the legislation referred to above.
National legislation must establish frameworks for determining the salaries, allowances and benefits of judges, the Public Protector, the Auditor-General, and members of any commission provided for in the Constitution.

Section 220 Establishment and functions

[FINANCIAL AND FISCAL COMMISSION ACT 99 OF 1997]
National legislation determines what authorities are to receive recommendations by the Financial and Fiscal Commission, in addition to Parliament and provincial legislatures. The Commission must function in terms of an Act of Parliament.

Section 223 Establishment

[SOUTH AFRICAN RESERVE BANK ACT 90 OF 1989]
An Act of Parliament must regulate the South African Reserve Bank.

Section 228 Provincial taxes

[PROVINCIAL TAX REGULATION PROCESS ACT 53 OF 2001, note: this regulates only the process and not the power]
The power of a provincial legislature to impose taxes, levies, duties and surcharges must be regulated in terms of an Act of Parliament.

Section 229 Municipal fiscal powers and functions

[none for first function]

[LOCAL GOVERNMENT: MUNICIPAL PROPERTY RATES ACT 6 OF 2004]

When two municipalities' fiscal powers and functions overlap, an appropriate division of those powers and functions must be made in terms of national legislation after organised local government and the Financial and Fiscal Commission have been consulted and any recommendations of the Commission have been considered.
This section also provides that national legislation may regulate the power of a municipality to impose rates on property, surcharges on fees for services provided by or on behalf of the municipality, or other taxes, levies or duties.

Section 236 Funding for political parties

[PUBLIC FUNDING OF REPRESENTED POLITICAL PARTIES ACT 103 OF 1997]
National legislation must provide for the funding of political parties participating in national and provincial legislatures on an equitable and proportional basis.

1.2 Discretion to pass specific legislation

The Constitution of the Republic of South Africa, 1996

Section 101 Executive decisions

[not one specific law]
National legislation may specify the manner in which, and the extent to which, proclamations, regulations and other instruments of subordinate legislation must be tabled in Parliament and approved by Parliament.

1.3 References to national legislation that do not expressly impose a duty to legislate

The Constitution of the Republic of South Africa, 1996

Section 6 Languages

[PAN SOUTH AFRICAN LANGUAGE BOARD ACT 59 OF 1995]
A Pan South African Language Board established by national legislation must further and ensure respect for South Africa’s official and non-official languages.

Section 47 Membership

[CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA ACT 200 OF 1993, Schedule 6, Item 23 as amended by CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT ACT 2 OF 2003]
Vacancies in the National Assembly must be filled in terms of national legislation.

Section 61 Allocation of delegates

[DETERMINATION OF DELEGATES (NATIONAL COUNCIL OF PROVINCES) ACT 69 OF 1998]
After an election of a provincial legislature, it must determine, in accordance with national legislation, how many of each party's delegates are to be permanent delegates and how many are to be special delegates and appoint the permanent delegates in accordance with the nominations of the parties. It must repeat the action, in terms of the national legislation, if its composition is changed on account of changes of party membership, mergers between parties, subdivision of parties or subdivision and merger of parties within that legislature. The national legislation referred to must ensure the participation of minority parties in both the permanent and special delegates' components of the delegation.

Section 62 Permanent delegates

[NATIONAL COUNCIL OF PROVINCES (PERMANENT DELEGATES VACANCIES) ACT 17 OF 1997]
Vacancies among the permanent delegates must be filled in terms of national legislation.

Section 96 Conduct of Cabinet members and Deputy Ministers

[EXECUTIVE MEMBERS' ETHICS ACT 82 OF 1998]
Members of the Cabinet and Deputy Ministers must act in accordance with a code of ethics prescribed by national legislation.

Section 105 Composition and election of provincial legislatures

[ELECTORAL ACT 73 OF 1998, Schedule 3]
The number of members in a provincial legislature must be determined in terms of a formula prescribed by national legislation.

Section 106 Membership

[CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA ACT 200 OF 1993, Schedule 6, Item 23 as amended by CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT ACT 2 OF 2003
Vacancies in a provincial legislature must be filled in terms of national legislation.

Section 127 Powers and functions of Premiers

[none]
A Premier may call a referendum in the province in accordance with national legislation.

Section 136 Conduct of members of Executive Councils

[EXECUTIVE MEMBERS' ETHICS ACT 82 OF 1998]
Members of the Executive Council of a province must act in accordance with a code of ethics prescribed by national legislation.

Section 157 Composition and election of Municipal Councils

[LOCAL GOVERNMENT: MUNICIPAL STRUCTURES ACT 117 OF 1998, Chapter 1, part 1]
National legislation may determine that a Municipal Council consists of members appointed by other Municipal Councils to represent those other Councils or both members ordinarily elected to the Municipal Council through local elections and members appointed by other Municipal Councils. Such legislation must establish a system that allows for parties and interests reflected within the Municipal Council making the appointment, to be fairly represented in the Municipal Council to which the appointment is made.
Unless that legislation is enacted, members of a Municipal Council are elected in accordance with national legislation that provides for proportional representation. If the electoral system includes ward representation, the delimitation of wards must be done by an independent authority appointed in terms of, and operating according to, procedures and criteria prescribed by national legislation.

Section 158 Membership of Municipal Councils

[none]
A person who is not eligible to be a member of a Municipal Council in terms of this section because of his/her appointment to another state body may be a candidate for the Council, subject to any limits or conditions established by national legislation.

Section 159 Terms of Municipal Councils

[LOCAL GOVERNMENT: MUNICIPAL STRUCTURES ACT 117 OF 1998, Chapter 1, part 1]
The term of a Municipal Council may be no more than five years, as determined by national legislation.

Section 168 Supreme Court of Appeal

[RESTITUTION OF LAND RIGHTS ACT 22 OF 1994, section 37]

[PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT 4 OF 2000, section 23]

[CRIMINAL PROCEDURE ACT 51 OF 1977, section 316]
The Supreme Court of Appeal may decide only appeals, issues connected with appeals, and any other matter that may be referred to it in circumstances defined by an Act of Parliament.

Section 170 Magistrates' Courts and other courts

[MAGISTRATES' COURTS ACT 32 OF 1944]
Magistrates' Courts and all other courts may decide any matter determined by an Act of Parliament, but a court of a status lower than a High Court may not enquire into or rule on the constitutionality of any legislation or any conduct of the President.

Section 182 Functions of Public Protector

[PUBLIC PROTECTOR ACT 23 OF 1994]
The Public Protector has the power, as regulated by national legislation, to investigate any conduct of government bodies, to report on that conduct, and to take appropriate remedial action, and any additional powers and functions prescribed by national legislation.

Section 184 Functions of South African Human Rights Commission

[HUMAN RIGHTS COMMISSION ACT 54 OF 1994]
The South African Human Rights Commission’s powers, as regulated by national legislation, include the power to investigate and to report on the observance of human rights, to take steps to secure appropriate redress where human rights have been violated, to carry out research, and to educate.

Section 185 Functions of Commission

[COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES ACT 19 OF 2002]
The primary objects of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities includes recommending the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils for a community or communities in South Africa. The Commission has the power, as regulated by national legislation, necessary to achieve its primary objects, including the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning the rights of cultural, religious and linguistic communities. The Commission has the additional powers and functions prescribed by national legislation.

Section 187 Functions of Commission for Gender Equality

[COMMISSION ON GENDER EQUALITY ACT 39 OF 1996]
The power of the Commission for Gender Equality is regulated and prescribed by national legislation.

Section 188 Functions of Auditor-General

[PUBLIC AUDIT ACT 25 of 2004]
In addition to the powers to audit the accounts, financial statements and financial management of all national and provincial state departments and administrations, municipalities and any other institution or accounting entity required by national or provincial legislation to be audited by the Auditor-General, as well as the power to audit and report on the accounts, financial statements and financial management of any institution that is publicly funded, the Auditor-General has the additional powers and functions prescribed by national legislation.

Section 190 Functions of Electoral Commission

[ELECTORAL COMMISSION ACT 51 OF 1996]
In addition to the power to manage free and fair elections of all spheres of government in accordance with national legislation, and to declare results of those elections within a period that must be prescribed by national legislation, the Electoral Commission has the additional powers and functions prescribed by national legislation.

Section 196 Public Service Commission

[PUBLIC SERVICE COMMISSION ACT 46 OF 1997]
In addition to specific powers and functions set out in subsection (4), the Public Service Commission is empowered in subsection (4)(g) to exercise or perform the additional powers or functions prescribed by an Act of Parliament.
In terms of subsection (13), commissioners nominated by a Premier of a province may exercise the powers and perform the functions of the Commission in their provinces as prescribed by national legislation.

Section 207 Control of police service

[SOUTH AFRICAN POLICE SERVICE ACT 68 OF 1995, chapters 4 and 5]
In terms of subsection (4) provincial commissioners of police are responsible for policing in their respective provinces as prescribed by national legislation.
In terms of subsection (6), a provincial executive may institute appropriate proceedings for the removal or transfer of, or disciplinary action against, a provincial commissioner, in accordance with national legislation.

Section 218 Government guarantees

[BORROWING POWERS OF PROVINCIAL GOVERNMENTS ACT

48 OF 1996]

Government at all levels may guarantee a loan only if the guarantee complies with any conditions set out in national legislation, which has been enacted after recommendations by the Financial and Fiscal Commission have been considered.

Section 221 Appointment and tenure of members

[FINANCIAL AND FISCAL COMMISSION ACT 99 OF 1997]
Members of the Financial and Fiscal Commission are appointed by the President in accordance with a process prescribed by national legislation, which must provide for the participation of the Premiers and organised local government. Members serve for a term established in terms of national legislation.