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ANC Policy Proposals for the Final Constitution

15 June 1995



  • Approaches and Principles
  • Guiding Principles

Part 1

Constituting the Republic of South Africa

  • Preamble
  • One Nation
  • Language
  • Citizenship
  • The Democratic Constitutional State

Part 2

Bill of Human Rights

  • General Considerations
  • Bill of Rights

Part 3

National Government

  • National Assembly
    • The Franchise
    • Number of Representatives
    • Recall
    • Checks and Balances and Accountability
    • Party Funding
    • Parliamentary Committees
      • Proposals
  • The Senate
  • The National Executive
    • Proposals

Part 4

Provincial and Local Government

  • The System of Provincial Governance and the Senate
  • Concerns and Objectives
  • Potential Problems
  • The Proposal
  • Functions of the Senate
  • Composition of the Senate
  • Co-operative Governance
  • Proposals
    • General Principles
    • Cooperative Governance
    • General Matters
    • Elements of the Provincial System
    • The Senate
    • Legislative Competences
    • Executive Competences
  • Local Government
    • Proposals
  • Traditional Authorities and Cultural Bodies
    • Discussion and Proposal

Part 5

Judicial Authority

    • Proposals
  • The Public Protector, Human Rights Commission, Commission on Gender
    Equality, Restitution of Land Rights
    • Proposals

Part 6

  • The Public Service
    • Proposals
  • The Security Services
    • General Guidelines
    • Intelligence Services
    • The National Defence Force
    • SA Police Service

Part 7


  • National Financial Affairs
  • Provincial Financial and Fiscal Affairs
    • Financial and Fiscal Commission
      • Proposals


Approaches and Principles*

It will be the task of the Constitutional
Assembly (CA) to review the entire Interim
Constitution, that is, to begin afresh**. This must take place even though
many formulations have already found expression in the Interim Constitution`s
text. In this regard the positive and negative experiences of this Constitution
are taken into account.

*This memorandum draws on the policy guidelines adopted by the National
Conference of the ANC on 31 May 1992, entitled Policy
Guidelines for a Democratic South Africa (also known as
Ready to Govern),
as well as the "list of principles" adopted at the National Conference
of 17 December 1994. It also draws on an unmandated constitutional blueprint.
During 1990 - 1992 the Constitutional Committee considered and drafted a
constitutional "blue print":
Working Paper 3. This text formed
the basis of submissions to the Multi-Party forum, but differed from the Interim
Constitution in material respects. Furthermore the Constitutional Committee
published two relevant documents, The
Bill of Rights (1993) and Constitutional
Principles (1993). Other parts of this memorandum came from submissions to
or the
Multi-Party Forum, or were adopted at the recent Kempton Park
Constitutional Conference of the ANC in April 1995.

** The new constitution will in any event dispense with certain special
features of the Interim Constitution, such as the CA, the GNU, deadlock-breaking
and the transitional provisions. Sections 234 - 238, which deal with the
transition, will need to be examined in the light of the consequences and
arrangements which have resulted from their application. See also Section 239
dealing with assets and liabilities. We assume that those provisions which
provide for continuity in regard to various political institutions and
arrangements will no longer have application.

The final Constitution needs to avoid some of the approaches to
constitution-making and the consequent characteristics of the interim
Constitution, which:

  • were too detailed, and purported to deal with issues which should be left
    to Parliament to legislate on. It is not in our interests to negotiate
    provisions in the Constitution which can be dealt with by statute. It is in
    our interest only to ensure that there are no unnecessary constitutional
    limitations on the expression of the will of Parliament. Other parties will
    be seeking to elaborate on the provisions in the Constitution. In general,
    the only issues which should be constitutionalised are the principles upon
    which our democracy is founded and guaranteed, as well as the necessary
    identification of the essential features of the institutions which give
    expression to these. The mechanics and rules of such institutions should be
    left to Parliament to create.
  • provided an excessive set of structures, duplication of functions, often
    boosting the costs of government, sometimes without any clear benefit to our
    people. The process did not encourage a "costing" of the measures
    and means introduced.
  • concentrated on regional government and a variety of forms of regional
    representation at the expense of local and national levels of government.
  • abounded with complex, legalistic language. The constitution should be
    written in a concise style and be suitably designed, yet it should be
    drafted in clear, simple and understandable language.

Guiding Principles

Just as the CA will be bound by the Constitutional Principles in Schedule 4,
so too the ANC sets out its own constitutional principles. The more elaborated
proposals on actual structures and institutions of government, which this
memorandum addresses, are based on these principles. The guiding and pre-eminent
principles are as follows:

  1. The constitution of South Africa shall create the framework to build a
    united and undivided nation.
  2. The character of the state shall be a multi-party democratic state based
    upon democratic majority rule.
  3. The Constitution shall commit the country to a non-racial and non-sexist
    order based on the inherent dignity of all persons and the equal enjoyment
    of all human rights.
  4. There shall be a bill or rights guaranteeing all accepted human rights
    including socioeconomic rights and which shall be, where appropriate,
    applicable against all sources of power.
  5. The Constitution shall as far as possible empower the poor and the
    vulnerable to enforce their rights and shall inter alia create a Human
    Rights Commission and a Public Protector to perform this function.
  6. There shall be regular elections, at no longer than five year intervals,
    on a common votes roll based on universal adult suffrage at all levels of
    government. The electoral system at the various levels shall ensure
    accountable representation.
  7. Parliament shall, subject to the Constitution, be the supreme law-maker,
    and the expression of the will of the people. The executive will be
    accountable to it.
  8. Parliament must not be limited in its capacity to legislate so as to
    address the legacy of the past including such issues as land restoration,
    re-distribution, and affirmative action.
  9. Government shall be formed by the majority party or voluntary coalitions,
    if any.
  10. Government shall be honest, accountable, transparent and cost effective.
  11. There shall be democratically elected government at regional and local
    levels, both urban and rural, whose powers shall be set out in the
    constitution. The powers of regional government shall be subject to the need
    for national uniformity, national reconstruction and development, as well as
    the values in the Bill of Rights. National government shall be ultimately
    responsible for financial and fiscal matters.
  12. The civil service shall be representative, impartial, and shall loyally
    serve the Government of South Africa and mechanisms shall be adopted to
    ensure the accountability and transparency of the public service.
  13. Separation of Powers between the organs of government shall be provided
    for in a manner consistent with the accountability of the executive to
  14. The role and status of traditional leaders in the non- partisan promotion
    and protection of customs, culture and customary law, shall be recognised,
    subject only to the principles set out above.
  15. Powers should be distributed to the provinces so as to promote on the one
    hand government closer to the people, and popular participation in
    governance, and, on the other hand, to minimise antagonistic divisions
    between provinces and between levels of government.
  16. All provisions of the final constitution shall be capable of amendment
    subject only to the constitutionality prescribed majorities and procedures.

Part 1

Constituting the Republic of South Africa

Binding Constitutional Principles

The Constitution of South Africa shall provide for the establishment of
one sovereign state, a common South African citizenship and a democratic
system of government committed to achieving equality between men and women
and people of all races.

The Constitution shall be the supreme law of the land. It shall be
binding on all organs of state at all levels of government.



The preamble to the Constitution will express a commitment to:

a free and open society based on democratic values where the dignity and
worth of every South African man or woman is protected by law,
a unified South Africa,
a society founded on the sovereignty of the people of South Africa, and on
the principles of equality, non- racialism, non-sexism and mutual respect,
overcoming the legacy, redressing the injustices and healing the divisions
of the past, and preventing new forms of oppression,
taking our place amongst the family of nations in Africa and the world.

One nation

The final constitution shall give expression to the goal of building the
people of South Africa as one undivided and united nation.



The territory of South Africa shall be the whole territory of South Africa
as it was on 27 April 1994.


The language provisions have been subjected to various criticisms, regarding
on the one hand its practicability and, on the other hand the de facto elevation
of certain languages above others. Save for section 3(2) which entrenches the
status of various existing official languages, the existing language provisions
are derived from ANC policy which tries to balance the need to safeguard our
diverse languages with the practicalities of governance.


Afrikaans, English, isiNdebele, Sesotho sa Leboa, Sesotho, siSwati,
Xitsonga, Setswana, Tshivenda, isiXhosa and isiZulu shall be the official
South African languages at national level, and conditions shall be created
for their development and for the promotion of their equal use and
The languages of South Africa shall all be equally recognised.
Every person shall have the right to communicate in the courts, in
Parliament and with Government in his/her own language.
National and Regional Governments may designate a language or languages as
the official language or languages of communication for any particular
purpose, or generally.
The languages of South Africa shall be promoted and developed.
A mechanism shall be created to promote respect for and development of
both the official languages and other languages used by communities in South


All South Africans shall be entitled to equal and full citizenship.
Citizenship may be acquired by birth, decent, marriage or naturalisation. No
citizen shall be arbitrarily deprived of his citizenship though legislation
may set out the circumstances in which citizenship shall be lost.

The Democratic Constitutional State

The South African state should have the character of being a democratic
constitutional state
expressing a balance and the inter-connection between
democracy and constitutionalism.

The concept of the democratic constitutional state (to be included at
least in the Preamble of the Constitution) should be a positive guide and
not a political programme, and should in an harmonious way encompass the

The principle of democracy: The right of the people of South
Africa to exercise state power through the vote as well as state organs
and institutions.
The principle of constitutionalism: The national law-giver
(Parliament) should be bound by the Constitution except and in so far as
the Constitution may be amended in the prescribed way, whilst the
executive and judiciary should be bound by written and unwritten law*.

* It follows that all organs of state at all levels of government are
to be bound by the constitution, including Parliament, but only Parliament
may amend the Constitution in the prescribed way.

The integration of constitutionalism and democracy should be sought along
the following lines:

Democracy should be seen as the supremacy of the people through the
supremacy of law/the constitution: the idea of democratic
constitutionalism. There should be no democracy without constitutionalism,
and no constitutionalism without democracy.
Constitutionalism should be legitimate, and it is legitimate when it is
seen against the background of democratic law-making and the democratic
system of responsible and accountable government.
Expression should be given to the doctrine of the separation of powers,
and a fair balance between rigidity and elasticity regarding amendment of
different parts of the constitution*.

* This consideration will in turn be influenced by the technical style
in which the constitution is to be written, in the sense that the more
detailed the constitution is, the easier it should be to amend it, while a
constitution which is written in a principled way could be more rigid.

The supremacy of the Constitution could be seen as meaning that
democratic decisions should with regard to material content and procedure
only be legally possible within the limits and empowering set by the
Constitution, and thus in accordance with the Constitution.
The supremacy of the constitution should not be a system against the
state, but it should be a system for the democratic state, to guard
against the state degenerating into anarchy, arbitrariness and illegality,
without a framework of rules. Such a state would undermine democracy and
democratic practices.

The judicial determination of the constitutionality of legislation should
be directed at establishing the legal compatibility of national or
provincial legislation with the Constitution, or the compatibility of
provincial legislation with other national legislation.

Part 2

Bill of Human Rights

Binding Constitutional Principles

Everyone shall enjoy all universally accepted fundamental rights,
freedoms and civil liberties, which shall be provided for and protected by
entrenched and justifiable provisions in the Constitution, which shall be
drafted after having given due consideration to inter alia the fundamental
rights contained in Chapter 3 of this Constitution.

The Constitution shall prohibit racial, gender and all other forms of
discrimination and shall promote racial and gender equality and national

The Constitution shall be the supreme law of the land. It shall be
binding on all organs of state at all levels of government.

The legal system shall ensure the equality of all before the law and an
equitable legal process. Equality before the law includes laws, programmes
or activities that have as their object the amelioration of the conditions
of the disadvantaged, including those disadvantaged on the grounds of race,
colour or gender.

Provision shall be made for freedom of information so that there can be
open and accountable administration at all levels of government.

Collective rights of self-determination informing, joining and
maintaining organs of civil society, including linguistic, cultural and
religious associations, shall, on the basis of non-discrimination and free
association, be recognised and protected.

(1) the institution, status and role of traditional leadership,
according to indigenous law, shall be recognised and protected in the
Constitution. Indigenous law, like common law, shall be recognised and
applied by the courts, subject to the fundamental rights contained in the
Constitution and to legislation dealing specifically therewith.

(2) Provisions in a provincial constitution relating to the
institution, role, authority and status of a traditional monarch shall be
recognised and protected in the Constitution.

Notwithstanding the provisions of Principle XII, the right of employers
and employees to join and form employer organisations and trade unions and
to engage in collective bargaining shall be recognised and protected.
Provision shall be made that every person shall have the right to fair
labour practices.


South Africa has never had a Bill of Rights which guarantees the fundamentals
principles of democracy, equality, non-racism and non-sexism. The ANC`s
proposals on the Bill of Rights provide that South Africa will be a multi- party
democracy enjoying fundamental rights that are universally recognised in a range
of international treaties and documents. The Bill of rights will be a victory
for all the peoples of South Africa , in that after decades of struggle and
sacrifice they will have guarantees that will ensure the elimination of
oppression, discrimination, inequality and division. It will also ensure that
the basic rights and freedoms of all are respected while the rich diversity of
our society is fully acknowledged.

General considerations

The current chapter on fundamental rights covers political and civil rights.
In general, the rights represent a progressive charter in regard to this limited
field. However consideration needs to be given to:

  • Making the chapter on fundamental rights applicable horizontally where
    appropriate and enshrining applicable and appropriate socioeconomic rights.
    A balance needs to be established between equality and freedom. Even in this
    regard our vision of freedom should focus on the rights which protect the
    dignity of individuals, rather than those which protect their economic
    privileges. In short the balance which the interim constitution establishes
    leans in favour of liberty rather than equality. The Bill should apply to
    human beings.
  • Drafting the rights in a way in which they would give expression to a
    balance between democratic Government and the protection of individual
    liberty. It may be that some of the rights in the Interim Constitution were
    drafted without a proper perspective of the challenges of governance and
    thus do not reflect the appropriate balance between the role of the courts
    and the role of Parliament.
  • Some sections need reconsideration and have been the subject of political
    and jurisprudential criticism. These critiques are too detailed to enumerate
    here, but can be summarised in further elaboration. These sections are
    Administrative Justice, Economic Activity, Labour Relations, Property,
    Children, Education, Access to Information, and the limitations clause
    (section 33).
  • Notwithstanding the need to address socioeconomic rights in the
    Constitution, it is also clear that such rights must be costed against an
    audit of available resources. It helps no-one to promise which can not be
    granted, or which enables judges to set and prescribe government priorities.
    The task of allocating scarce resources to job-creation before health car,
    or vise versa, is the government`s job, not the courts. This does not
    preclude a floor of basic economic rights, capable of expansion through
    legislation or the constitution. This is also true of civil and political
  • Juristic persons should be entitled to the rights to the extent that the
    rights permit. (See Sect 7(3), Interim Constitution.)
  • Having regard to the above-mentioned considerations, the Bill should
    include civil, political, economic, social and culture rights. Environmental
    rights should also be addressed. The provisions on social and economic
    rights should be formulated in a way that does not hamper effective
  • Not all rights can be appropriately set out in the Constitution and they
    may require proper elaboration in legislation.

Bill of Rights


The Bill of Rights will guarantee that South Africa is a multi-party
democracy in which people enjoy freedom of association, speech and assembly
and the right to change their government. Furthermore, the public have a
right to know what is being done in their name*.

*The National Conference felt that the right to free speech should not
include the right to "hate speech". This should be regulated by

The Constitution shall enshrine a strong right to information and a firm
guarantee regarding the free circulation of ideas and opinions*.

*The detailed questions regarding the right to free publication and the
circulation of pornography should be regulated by legislation. The right to
information should be exercised within the parameters and procedures set out
in legislation.

The Bill of Rights shall be binding upon the State and organs of
government at all levels and, where appropriate, on social institutions and
The Bill of Rights shall guarantee a right to a fair trial, and prohibit
torture, cruel and unusual punishment or degrading treatment.
The Bill of Rights shall enshrine the right of a citizen to choose his or
her place of residence, as well as the right of freedom of movement.
The Bill of Rights shall protect the right to life and the dignity of all.
Such a right shall not preclude the legislature, if it so chooses, from
providing for and regulating the right to an abortion by legislation*.

*Thus preserving the right of a democratically elected government to
decide on the issue of abortion. The matter could, however, also be seen from
the wider perspective of
reproductive rights, on which the Women`s
Charter for Effective Equality states in article 11: "Women have the
right to control over their bodies, which includes the right to make
reproductive decisions".
The RDP White Paper in paragraph
refers in this regard to the guaranteeing of reproductive rights, the
promotion by reproductive health services of privacy and dignity, termination
of pregnancy as well as education, counselling and confidentiality. The right
to abortion touches on many human rights. The ANC will present further
proposals in this regard.

The Bill of Rights shall protect the privacy of all persons subject only
to reasonable restrictions to allow inter alia the state to enter property
to protect vulnerable persons.
The Bill of Rights must guarantee language and cultural and religious
rights. It will respect the diversity of faiths and give guarantees of
freedom of religion.
The Bill of Rights will protect workers rights to set up independent trade
unions, to engage in collective bargaining and their right to strike and
picket must be protected. The State will be a signatory to the International
Labour Organisation (ILO) conventions and commit itself thereby. The Bill of
Rights will also prohibit slave labour, forced labour, the exploitation of
children and discrimination in the work place*.

*Sect 27(5) of the Interim Constitution should be scrapped.

The Bill of Rights will provide for the principle of equal rights for
women and men in all spheres. The right to be protected from unfair
discrimination must specifically include those discriminated against on the
grounds of ethnicity, language, race, birth, sexual orientation and

*The creation of special agencies to ensure that equal opportunity
operates in practice should receive attention in the constitution as well as
in normal legislation, though not in the chapter on the Bill of Rights.

The Constitution will make it clear that seeking to achieve substantive
equality and opportunities for those discriminated against in the past
should not be regarded as a violation of the principles of equality,
non-racialism and non-sexism, but rather as their fulfilment.
A new system of just and secure property rights must be created, one which
is regarded as legitimate by the whole population. This should include
provision for access to land and for the redress of inequities, as well as
the protection of personal property.

The taking of property shall only be permissible according to law and in
the public interest, which shall include the achievement of the objectives
of the Constitution.
Any such taking shall be subject to just compensation which shall be
determined by establishing an equitable balance between the public
interest and the interest of those affected and will not be based solely
on the market value of such property.
Regulating the use of property in the public interest, e.g. of the
environment, or the health and safety of the public shall not be construed
as a taking of property rights.
The Bill of Rights shall establish the principles and procedures whereby
land rights will be restored to those deprived of them by apartheid
statutes. A Land Claims Court Tribunal, functioning in an equitable manner
according to principles of justice laid out in legislation, will, wherever
it is feasible to do so, restore such rights.

The Bill of Rights should support the provision of homes, employment and
utilities such as light and water.
The Bill of Rights shall affirm the right of all persons to have access to
basic educational, health and welfare services. It will establish principles
and mechanisms to ensure that there is an enforceable and expanding minimum
floor of entitlements for all, in the areas of education, health and
welfare. It shall commit the courts to take into account the need to reduce
malnutrition, unemployment and homelessness when making any decisions.
Special and additional levels of protection shall be afforded to children
who will have a right to be protected from neglect, abuse, exploitation or
exposure to harm, as well as a positive right to basic nutrition and health
The Bill of Rights will direct that the environment be protected from
desecration and nurtured, on a sustainable basis, for the benefit of South
Africa, its children and its children`s children.
The Bill of Rights will direct the state to ensure that all South Africans
live in security and peace.
The Rights contained in the Bill shall be capable of limitation where such
limitation is justifiable in a democratic, open society based on freedom and
In the international sphere, the state shall become a party to suitable
human rights conventions and in particular those dealing with racism, gender
discrimination and the rights of children, which apartheid has until now
rejected. In this way we shall assert our rightful place in the
international community. Treaties which impact on South African legislation
shall require the approval or participation by the South African Parliament
in the form of a national law.
The Bill of Rights shall guarantee a right to procedurally fair
administrative action where a person`s rights or interests are affected*.

*To make it compatible with the practicalities of governance.

These rights shall be derogated from

only in a state of emergency necessarily and properly declared to
protect the security of South Africa, and
only if the Constitution does not specify that the right in question may
not be derogated from, and
only to the extent necessary to restore the security of the nation and
the safety of its people, and
only to the extent that such derogation is consistent with international
law on the nature and extent of derogation of human rights in exceptional

Proposals regarding the Interim Constitution

Sect 23 should be retained but reformulated to allow the method and extent
of this right to be set out in law.
Sect 24 on administrative justice should be retained, subject to its
reformulation in line with the necessary practicalities of governance.
Sect 26 on economic activity should be removed.
Sect 27(5) on labour relations should be deleted.
Sect 28 on property: It should be reformulated to accommodate the right of
access to land and the redress of past and existing inequities in access to
land, dealt with elsewhere in the Interim Constitution.
Sect 30 on children: To be retained.
Sect 32 on education: To be retained, though care should be taken to
ensure that Sect 32(c) does not condone discrimination.
Sect 33 on "limitations" is to be endorsed, subject to its
reformulation to make it simpler and clearer.

Part 3

National Government

Binding Constitutional Proposals

There shall be a separation of powers between the legislature,
executive and judiciary, with appropriate checks and balances to ensure
accountability, responsiveness and openness.

Provision shall be made for participation of minority political parties
in the legislative process in a manner consistent with democracy.

Amendments to the Constitution shall require special procedures
involving special majorities.

There shall be representative government embracing multi-party
democracy, regular elections, universal adult suffrage, a common voters`
roll, and, in general, proportional representation.

Formal legislative procedures shall be adhered to by legislative organs
at all levels of government.

The national government shall not exercise its powers (exclusive of
concurrent) so as to encroach upon the geographical, functional or
institutional integrity of the provinces.

At each level of government there shall be democratic representation.
This principle shall not derogate from the provision of Principle XIII.

The Constitution shall provide that until 30 April 1999 the national
executive shall be composed and shall function substantially in the manner
provided for in Chapter 6 of this Constitution.

The Constitution shall provide that, unless Parliament is dissolved on
account of its passing a vote of no-confidence in the Cabinet, no national
election shall be held before 30 April 1999.

The National Assembly*

*Those provisions of the Interim Constitution which deal with the
legislature`s constitution- making function will not be required in a future
Constitution (including those sections dealing with deadlock-breaking.)

The Franchise

There has been some criticism of the lack of effective constituency
representation in the National Assembly, which arises from the system of list
based proportional representation. There is also an acknowledgment of the
importance of proportional representation as a device to ensure
representativeness and inclusivity. In this regard, there is a view that a mixed
system should be considered. This system may allow for single member or
multi-member constituencies but also ensures proportional representation*.

*The question of single member or multi-member constituencies is the
subject of further reflection by the ANC, as is the case with the relative
percentages of constituency and proportional representation.

Secondly, the system of National and Regional lists could be reconsidered
together with the role of the Senate. It is clear that the need for regional
lists for the National Assembly falls away if the constituency basis to the
electoral system is accepted. There is no need for such a list if the proposals
on the Senate are accepted.

It follows that there should be regular elections for Parliament, at least
once every 5 years, on the basis of proportional and constituency representation
in Parliament.

Number of Representatives

The number of representatives needs to be reconsidered, given the resources
and size of the country. The size of regional legislatures similarly needs
reconsideration. South Africa now has a costly form of representation, which is
out of line with highly industrial countries. Including regional
representations, there are close to 900 lawmakers. The cost, having regard to
the resources of the country, can be justified if we can demonstrably show that
the number of members of the National Assembly can not be reduced without
affecting the quality of its decision making or diluting the nexus between the
people and Parliament. In a PR list system, the relationship between voter and
MP, is minimally affected by a reduction in the numbers in Parliament. Reducing
the numbers of these legislatures by say 25 per cent, would have more impact on
the attempt to secure funds for the Reconstruction and Development Plan (RDP),
than trimming the salaries of MP`s. It could be argued that some MP`s could play
a more appropriate role in the civil service, at other levels of government, in
the various institutions of government, or in civil society. The National
Assembly needs more resources for its MP`s, especially for research capacity.

Against the above it is contended that the large number of representatives
has contributed to the stability and the inclusivity of the political process.
This in itself is a contribution to the economic climate in the country. Final
proposals in this regard will be submitted, together with final proposals on the
electoral system.


A further consideration relates to the question of "recall". The
introduction of a constituency component to the electoral system will facilitate
or allow for this at a constituency level, while party congresses can audit
compliance with mandates by those elected on lists. Respectively it means that
the electorate and political parties should have the right in principle to
recall their representatives as determined by national legislation. Whilst the
constitution should contain only the fundamentals regarding elections, the
electoral system (which includes the detailing of the franchise and the question
of recall) and actual procedures should be the subject of a national electoral
law. Final proposals, as with the electoral system, will be advanced in due

Checks and Balances and Accountability

In regard to the question of "checks and balancesÓ and "Separation
of Powers
", we need on the one hand to insist on the primacy of
Parliament, in the schema of government by and for the people, and on the other
hand to avoid a multiplicity of watchdog functions/bodies/and institutions, and
an overly literal interpretation of the Separation of Powers doctrine. Currently
the Executive is the subject of scrutiny by Parliament, the Parliamentary party
caucuses, and Standing Committees, the Senate and its committees, the Human
Right Commission, the Public Protector, the Premiers and their governments, the
Judiciary and the Constitutional Court, and the Auditor-General. It is also the
primary focus of the Bill of Rights. There are sufficient checks and balances in
this schema.

In general the formal provisions and those which have to do with Cabinet
accountability to Parliament are in line with the ANC`s previous conception of
Parliament`s functioning. However, a close reading of the various formal
provisions needs to be undertaken regarding those aspects which make governance
unnecessarily complex and procedurally rigid. Some of these flow from the GNU
arrangements and will fall away.

Party Funding

Freedom, democracy and democratic life as such demand that political parties
be in a position fully to undertake their tasks in accordance with the
Constitution. To serve this aim political parties should be able to draw funds
on a proportional and constituency basis. Such a proposal recognises the
importance of parties to the political process. Such mechanisms could go
together with proposals regarding control on public contributions to parties,
which should not be prohibited. This should be left to a national law*, and the
constitution should not preclude such legislation.

*The national law will have to deal with matters like the principles and
extent of public financing of parties, an assessment procedure and the provision
and disbursement of funds.

Parliamentary Committees

A commitment to a full and open parliamentary committee procedure structured
to ensure executive accountability to an informed Parliament, and capable of
pro- active investigations, and proposing new legislation, should be included in
the final constitution. Ministers of state should not be members of committees,
but should attend such committees when invited to do so.


South Africa shall be an undivided state in which there shall be a
democratic government at local, regional and national levels. The Bill of
Rights and principles of non- racialism, non-sexism and democratic
accountability shall apply at all three levels of government.
Parliament shall consist of the National Assembly and Senate. The National
Assembly will be elected by universal suffrage on a common voter`s roll
according to proportional representation. It will pass the national budget
and have primary responsibility for the preparation and adoption of the
country`s main laws. (There shall, however, be a role for the Parliamentary
committees and the provinces in the process of preparing the budget.)*

*See below: Parts 6 and 7.

The ANC proposes the use of the Parliamentary Committee system, structured
to ensure executive accountability to an informed Parliament. The Committees
will have a right to consider forthcoming legislation and to initiate new
legislation in consultation with the relevant ministries. The Committees
shall have the necessary powers to conduct public inquiries into matters
within their area of jurisdiction.
Parliament shall decide on the remuneration and benefits of the President
and its members including Ministers, Deputy Presidents and Deputy Ministers.
Amendments to the Constitution shall be effected only by a two thirds
majority of both houses.
The executive shall be accountable to Parliament, and the Constitution.
There shall be a Speaker elected by Parliament and Parliament shall
determine its own rules of procedure. The question of a Leader of the House
and his/her responsibilities and status should fall within the ambit of the
Rules of Parliament.
There shall be regular elections for a representative Parliament, at least
once every 5 years based on proportional and constituency representation in
such a manner that the representation of parties in Parliament reasonably
and equitably reflects their electoral support*. There shall be a common
voters roll, and universal adult suffrage.

*The ANC`s position on the total number of representatives in the
National Assembly is presently under consideration.

The elections shall be administered and supervised by an independent body,
the Electoral Commission. The Electoral Commission shall consist of 6
persons of integrity elected by a 75 per cent majority of the National
Assembly and shall be granted all the necessary authority to administer and
direct the conduct of the elections.

The Senate


The exact role and need for a Senate needs reconsideration. It does not
currently have a sufficiently identifiable purpose or powers to warrant its
special status. In its current form it is a mirror image of the Assembly. It
does not appear to be regarded by the provinces as their "house".
Without a specific regional function the Senate constitutes an institution with
little to offer. However it could play an important role within a revised
understanding of our provincial framework, one which would contribute to a more
co-operative framework of provincial and national governance.

The Senate will, it is proposed, be a functioning component of the national
legislature. The Senate, however, will be dealt with in Part 4 below, dealing
with provincial government, as it constitutes an integral part of the general
approach towards empowering the provinces and in expressing the relationship
between national and provincial governance.

The National Executive

The provisions which provide for the Government of National Unity, and which
are inappropriate for a democratic government need to be evaluated and
withdrawn. Any government of national unity arrangement will be voluntary, and
at the instance of the majority party.

It is clear that the President needs a Deputy to deputise for him or her. The
position and office of a Deputy President* should be continued.

*As against the creation of the position of Prime Minister.

Consideration must be given to principle XXXII. In this regard the provisions
which establish the GNU could be linked to a date upon which they automatically
expire. The words "substantially" would allow for some amendments to
the GNU during the remainder of the 3 or so years of its existence. The
functions which the President can perform without consultation need to be
expanded, if only for the smoother functioning of Government.

The ANC proposes that the Head of State be a President with both
ceremonial and executive powers. The President should be elected by the
National Assembly. He of she will have the same term of office as the
National Assembly and be available for re-election only once.
The President will appoint and supervise the functioning of the Cabinet.
The President shall appoint and dismiss Ministers, and Deputy Ministers at
his or her discretion.
Other than Minister or Deputy Ministers, a member of Parliament may not be
a full-time member of the executive or the civil service.
Coalitions between parties of the Cabinet will be based on voluntary
political pacts and will not be compulsory nor required by the Constitution.
The President shall consult with her or his Cabinet when taking important
decision. The President shall vacate his/her seat upon assumption of Office.
The National Assembly will elect from amongst its members a Deputy
President who will be a member of the Cabinet, and who will be the
parliamentary leader of the majority Party in Parliament. He will act as
President in the President`s absence, and will be accountable to both the
President and Parliament, and will perform such duties and functions as the
President assigns him or her.
Should the President resign or otherwise be unable to continue in office,
the National Assembly shall elect a new President for the remainder of the
unexpired part of the President`s period of office.
The members of the Cabinet shall be accountable to Parliament and the
The President or Deputy President may be impeached on a resolution of both
houses with a 2/3 majority, on the grounds of a serious violation of the
Constitution or other laws or inability to perform the functions of his or
her office.
Parliament may pass a motion of no-confidence in the President and her/his
Cabinet, in which event the President may either resign or call a general
Ministers shall not be eligible to sit on parliamentary committees.

Part 4

Provincial and Local Government

Binding Constitutional Principles

Government shall be structured at national, provincial and local


The powers and functions of the national government and provincial
governments and the boundaries of the provinces shall be defined in the

The powers and functions of the provinces defined in the Constitution,
including the competence of a provincial legislature to adopt a constitution
for its province, shall not be substantially less than or inferior to those
provided for in this Constitution.

The boundaries of the provinces shall be the same as those established
in terms of this Constitution.

Amendments to the Constitution which alter the powers, boundaries,
functions or institutions of provinces shall in addition to any other
procedures specified in the Constitution for constitutional amendments,
require the approval of a special majority of the legislatures of the
provinces, alternatively, if there is such a chamber, a two-thirds majority
of a chamber of Parliament composed of provincial representatives, and if
the amendment concerns specific provinces only, the approval of the
legislatures of such provinces will also be needed.

Provision shall be made for obtaining the views of a provincial
legislature concerning all constitutional amendments regarding its powers,
boundaries and functions.

The powers and functions at the national and provincial levels of
government shall include exclusive and concurrent powers as well as the
power to perform functions for other levels of government on an agency or
delegation basis.

Each level of government shall have appropriate and adequate
legislative and executive powers and functions that will enable each level
to function effectively. The allocation of powers between different levels
of government shall be made on a basis which is conducive to financial
viability at each level of government and to effective public
administration, and which recognises the need for and promotes national
unity and legitimate provincial autonomy and acknowledges cultural

The following criteria shall be applied in the allocation of powers to
the national government and the provincial governments:

The level at which decisions can be taken most effectively in respect
of the quality and rendering of services, shall be the level responsible and
accountable for the quality and the rendering of the services, and such
level shall accordingly be empowered by the Constitution to do so.

Where it is necessary for the maintenance of essential national
standards, for the establishment of manimum standards required for the
rendering of services, the maintenance of economic unity, the maintenance of
national security or the prevention of unreasonable action taken by one
province which is prejudicial to the interests of another province or the
country as a whole, the Constitution shall empower the national government
to intervene through legislation or such other steps as may be defined in
the Constititution.

Where there is necessity for South Africa to speak with one voice, or
to act as a single entity - in particular in relation to other states -
power should be allocated to the national government.

Where uniformity across the nation is required for a particular
function, the legislative power over that function should be allocated to
the national government.

The determination of national economic policies, and the power to
promote interprovincial commerce and to protect the common market in respect
of the mobility of goods, services, capital and labour, should be allocated
to the national government.

Provincial governments shall have powers, either exclusively or
concurrently with the national government, inter alia - (a) for the purposes
of provincial planning and development and the rendering of services; and
(b) in respect of aspects of government dealing with specific socio-economic
and cultural needs and the general well-being of the inhabitants of the

Where mutual co-operation is essential or desirable or where it is
required to guarantee equality of opportunity or access to government
service, the powers should be allocated concurrently to the national
government and the provincial governments.

The Constitution shall specify how powers which are not specifically
allocated in the Constitution to the national government or to a provincial
government, shall be dealt with as necessary ancillary powers pertaining to
the powers and functions allocated either to the national government or
provincial governments.

The national government shall not exercise its powers (exclusive or
concurrent) so as to encroach upon the geographical, functional or
institutional integrity of the provinces.

In the event of a dispute concerning the legislative powers allocated
by the Constitution concurrently to the national government and provincial
governments which cannot be resolved by a court on a construction of the
Constitution, precedence shall be given to the legislative powers of the
national government.

A framework for local government powers, functions and structures shall
be set out in the Constitution. The comprehensive powers, functions and
other features of local government shall be set out in parliamentary
statutes or in provincial legislation or in both.

The national government and provincial governments shall have fiscal
powers and functions which will be defined in the Constitution. The
framework for local government referred to in Principle XXIV shall make
provision for appropriate fiscal powers and functions for different
categories of local government.

Each level of government shall have a constitutional right to an
equitable share of revenue collected nationally so as to ensure that
provinces and local governments are able to provide basic services and
execute the functions allocated to them.

Financial and Fiscal Commission, in which each province shall be
represented, shall recommend equitable fiscal and financial allocations to
the provincial and local governments from revenue collected nationally,
after taking into account the national interest, economic disparities
between the rpovicnes as well as the population and developmental needs,
adminstrative responsibilities and other legititmate interests of each of
the provinces.

The System of Provincial Governance and the Senate

Concerns and Objectives


The challenge that the ANC, and indeed the Constitutional Assembly faces, is
to create a final constitution which will serve as a solid foundation for good
government. In doing so the ANC must confront the constitutional legacy of the
last century of white rule, absorb the experience of the last 12 months of
governance under the Interim Constitution, and, most importantly, must attempt
to foresee the problems and challenges South Africa will face in 10, 20 or even
a hundred years from now. Constitutions are as much about issues of tomorrow as
they are about the conflicts of today.

The aspect of the new constitution to which the ANC has given the most
careful and considered attention is that which deals with provincial governance.
This party has undertaken considerable internal consultation, and has conducted
wide-ranging comparative investigations concerning its proposals on this issue.
The ANC has not drafted proposals to meet some abstract centralist or federalist
agenda, but has sought to draft proposals which meet the requirements of
"good governance".

The ANC has considered a simple unitary state in which there are no regional
governments, and in which services are delivered by an executive appointed and
accountable only to the centre. It has rejected this model. On the other hand
the ANC has considered some confederal models similar to those proposed by some
parties and in which the country would be a loose federation of autonomous
states. The ANC believes that this model offers the prospect of physical
disintegration, racial and ethnic violence on par with that currently
experienced by the former Yugoslavia, as well as the perpetuation of existing
inequalities and economic impoverishment. The ANC proposes instead a new vision
and a new framework for provincial governance which we call co-operative

The federalism/centralism debate has for some time been stuck in a sterile
and one-dimensional quantification of discreet national and provincial lawmaking
competencies respectively. The ANC now proposes that provinces should become an
important component of central government and national policy making itself, yet
not lose areas of their current provincial legislative competency.

The ANC`s vision of co-operative governance in the relation between national
and provincial government is guided by the following concerns:

  • The government should be brought closer to the people. This should also
    mean, in addition to representative law making at provincial level, that the
    administration and the execution of laws should be brought closer to the
    people. More specifically the responsibility for the delivery of services to
    people in the provinces and at local government level should be by a
    government which is accountable to those it serves. This implies elected
    regional governments.
  • Local and regional government should have the capacity to make laws and
    apply laws in a way which is responsive to our diverse regional
    circumstances, needs and aspirations. This implies that regional governments
    must have the necessary executive and law-making powers. These powers must
    be original in the sense that they are conferred and guaranteed by the
    constitution itself.
  • At the same time the structures of government should be cost-effective and
    directed at effective and efficient governance. South Africa must marshal
    all its resources in a most productive way for the task of reconstruction
    and development. The pressure on governmental resources is extreme, and many
    of South Africa`s problems are national in nature and require national
    solutions. For example, our health, housing, education, crime and other
    problems are national in character. Solutions to them can not be found
    solely within provincial boundaries. Solutions to the problems in one region
    which exacerbate the problems in another are not solutions at all.
  • Geographic size, and the level of economic and social integration in South
    Africa requires a certain level of legal homogeneity. The memory and
    experience of the "bantustans" is still fresh in our minds. The
    creation of economically not viable and politically autonomous units
    promoted economic irrationality, poverty, corruption, bloated and
    competitive bureaucracies and endemic political and ethnic conflict.
    Ironically, fragmentation has proved just as inimical to securing
    "freedom of the individual" as it has been to ensuring
    "equality of citizenship".
  • South Africa requires to embark on a process of national unity,
    reconciliation and nation building. It needs to unite the nation and,
    without sacrificing the principle of democratic government at regional
    level, minimize divisions and conflict between regions, races, ethnic and
    linguistic groups. The balkanisation of South Africa could as in Eastern
    Europe lead to devastating self- destruction should the constitutional
    structures pit our regions and provinces against each other and against
    national government. The prospect of the fragmentation of the country into
    competing and belligerent fiefdoms is neither farfetched nor improbable
    having regard to our history.

In short it is the challenge of a system of provincial government to provide
for legitimate regional aspirations and needs without denying the context of
overall national imperatives. The solution to these concerns lies in adopting a
system of governance that provides for effective and responsive provincial
government, as well as regional influences on national government, yet does not
institutionalise shortsighted competition and promote only fractious
governmental relations.

Potential Problems in the Current Framework

  • The current framework promotes tensions between region and region, and
    between regions and central parliament. This is not negative per se but, the
    absence of any integrating and co-operative mechanism which encourage
    province governments to work with each other and the national government in
    regard to national legislation provides no counter balance to these
    centrifugal forces. There is no forum nor process for provincial governance
    to bear co- responsibility for the general welfare and management of the
    country as a whole. While the principle of empowering the provinces to
    manage their affairs is important, the political structure should also
    promote a broader co-operative approach. It should counteract the tendency
    to make decisions from exclusively provincial perspectives. It is the
    maturity of current provincial governance which has prevented major problems
    up till now.
  • The precise division of legislative and executive competences is
    uncertain, thus leaving important questions of governance to the courts to
    determine. They are expected to determine many political matters which
    should be resolved between the provinces or between the provinces and
    central government.
  • The present Senate makes too little of a contribution to resolving this
    problem because it appears to duplicate the work and composition of the
    National Assembly and yet fails to integrate the provincial viewpoints in
    national law-making. It is structurally unable to give institutional
    expression to the relationship between national and provincial levels
    because the regions` powers reside solely in its provincial legislative and
    executive functions.

The Proposal

In brief the elements of our proposal are:

  • The collaboration of provinces in legislation on national level. The
    Senate should be the main player in the relationship between national and
    provincial levels of government and the consequent vertical distribution of
    power. Present legislative competences of provinces should in the main be
    retained as at present, while a more substantial responsibility for
    executive power, as well as supplementary legislation, will rest with the
  • A division of competencies between the national and provincial levels of
    government which supports the idea of cooperative governance in the sense of
    regard for the legitimate interests of national and provincial governments
    by recognising provincial aspirations and needs within a context of national
  • A functional and an efficient allocation of the financial duties as
    between the different levels of government, and a fair system of
    distribution of revenue (financial equalisation) between provinces and
    between provinces and national level*.
  • *See Part 7 below.

Functions of the Senate

The Senate should have the following basic functions:

  • Have a close and on-going relationship with the provincial governments and
    give expression to the views and the administrative experience and needs of
    the provinces*.
  • *The Senate should be a "working parliament" as against a
    "reasoning and debating" parliament with a business-like style, and
    with a place for officials from the provinces at the Senate committee

  • Have a real say over National Assembly bills that deal with the exercise
    of powers and performance of provincial functions and articulate the
    interests of provinces at national level.
  • It should be able to initiate legislation and bear co-responsibility as a
    chamber for the Republic of South Africa as a whole regarding provincial
  • The Senate should have less influence over national legislation dealing
    with the exclusive competencies of national government than it does over
    legislation dealing with its concurrent areas of competence.

Composition of the Senate

Regarding the composition of a body like the Senate, it is possible to
distinguish between three possible types:

  • The members could be directly chosen by the people (as in the USA).
  • The members could be other party members chosen by provincial
    legislatures, as they do now, on a proportional party political basis.
  • The members could consist of members of the provincial executives or
    legislatures who appoint and recall them.

The ANC proposes that the third type be the basis of the composition of the
Senate. In this model the provinces will have a more direct
"ownership" of the Senate. The Senate could have between 50 or 100
members (5 or 10 per executive, but the number of Senators as such has not been
finalised by the ANC). The option to provide representation for the third tier
of government (a total of 5 or 10 members) was considered favourably by the
National Constitutional Conference on the grounds that it is a level of
government which contribute to the Senate as a body giving expression to all
levels of government. However, this should not open the way for representation
by "interest groups" as such*.

*The forthcoming proposals of the ANC will detail the following: (1) the
manner in which provinces are to be represented in the Senate, (2) the size of
the Senate, and (3) the administration and functioning of the Senate and its
institutional relation with the National Assembly. With regard to the
last-mentioned aspect, the following question is to be answered: Should the
National Executive be responsible to Parliament (National Assembly and Senate),
or only to the National Assembly, in view of the completely new character of the
Senate? Should the term "Parliament" be reserved for the National
Assembly only? If government policy is defeated in the National assembly, a new
government has to take over or an election must be called. The Senate has no
obvious place in this scheme of things. If the National Executive is responsible
to National Assembly and Senate, the consequence may be that the Senate would be
more likely to vote on party lines, as the Australian Senate does for example,
than to protect the interests of provinces. It is submitted that the National
Executive should not be responsible to the new Senate.

Co-operative Governance

The Interim Constitution allocates powers and functions of government as
between the different regions and Parliament. To a lessor extent it also
provides a small voice for regions in national governance. In our view the first
method of giving expression to regional diversity could be retained whereas the
second method needs to be strengthened.

The essential thrust of the proposed new framework is that the provinces will
now have a greater say, through the Senate in the making of national legislation
effecting their interests. This will impose national considerations upon
provinces, and require them to interact with each other and the national
assembly to consider the good of their province and the country as a whole. It
will also impose provincial consideration upon the national law-making process.

In the current framework, executive powers follow legislative powers. In our
view there is no need to rigidly link these and it should be possible to extend
further executive powers to the provinces in regard to national framework
legislation dealing with matters under the concurrent jurisdiction of provincial
and national governance. In addition there should be a functional and efficient
allocation of the financial duties as between the different levels of
government, and a fair system of distribution of revenue between provinces and
between provinces and national level.

In general the specific functional areas as presently specified in Schedule 6
of the Interim Constitution are the appropriate areas of concurrent legislative
powers. With the new role of provinces in regard to national legislation, it
will be possible to explicitly authorise general framework legislation as a
category of legislation overriding provincial legislation in the final
constitution. Framework legislation could, however, be subject to the pre-
eminent right of provinces to supplement such legislation and to preclude
parliament from so doing.

Where there is "concurrency" it is necessary to establish priority
or precedence in cases of conflict between provincial and parliamentary laws.
The ANC proposes a formula broadly similar to the existing section 126 save that
the onus of proving priority or precedence should fall upon the provincial
government - as it was originally formulated at Kempton Park*.

*This is not a significant amendment and indeed when the ANC introduced
the amendment at the original Kempton Park formulation placing the onus on the
national government, it was rebuked for "playing with words". It is
therefor strange that this "playing with words" should now be
interpreted as a fundamental shift in the framework by those same critics.

The formulation of the clause which sets out conditions for the preeminence
of legislation also reflects the fact that the "desirability" or
"necessity" of such national legislation will have been affirmed by
the provinces through the Senate, and that the courts will establish whether the
legislation concerned belongs to the categories identified for the preeminence
of either national or provincial legislation.

In general the ANC believes that attempting to list "exclusive"
provincial legislative powers which are not also potentially matters of national
concern, is a fruitless exercise. We are in agreement with those other parties
who believe that the constitution should not attempt to amplify exclusive
provincial legislative competencies save for those which can be said to arise
from the application of the override principles.

If these powers are crafted so as to exclude the possibility of a need for
national intervention they will amount to insignificant powers or window
dressing e.g. "abattoirs". Even contemporary federal constitutions
increasingly recognize national and even supra-national interests in matters
such as police and education. As these proposals stand, the provinces`
concurrent powers will be enhanced by certain exclusive executive functions, and
the powers, through the Senate to collectively block legislation inimical to
provincial interests.

The ANC proposes a national and uniform framework for provincial
constitutions which would allow for provincial variation in certain respects.
More detailed proposals in this regard, and in regard to the size of provincial
legislatures will be made in a further proposal.

These proposals make clear that the ANC will not simultaneously grant vastly
enhanced powers to the provincial government over national laws and also
increase the powers to ignore the very national norms and standards that they
have approved. If we allow this development, the logic of co- operative
governance will collapse in on itself and provinces through the Senate will
cease to have meaningful roles in national legislation and will be relegated to
fringe fiefdoms. It could perhaps be suggested that in this model some of the
provinces (notably Natal and Western Cape) will have to surrender their
individual autonomy for the "dubious benefit of being swamped by ANC

This is myopic. Firstly their current powers remain largely intact if not
augmented. Secondly the provinces have shown at intergovernmental meetings that
they have common ground with each other across party political lines (this after
all, is also the international experience). Thirdly, constitutions must be
crafted on the basis of more lasting considerations than today`s temporary
political alignments. Overall, provinces` law-making competencies (save for
policing powers which in reality were never properly a part of schedule 6)
remain. Their executive powers will be significantly expanded (executive powers
are not the menial bureaucratic duties that some parties have suggested but are
the very essence of political governance) and they would have greater financial
and fiscal powers to participate in the drafting of the national budget. For
this reason we believe that our proposals conform to the agreed constitutional

*As other parties have noted, this vision also informs the German

General Principles

The following ideals, which are relevant to the inner consistency of the
whole of the final constitution, should be achieved in relation to the
provincial system:

National unity, reconciliation and nation building;
cost efficient and effective government, capable of redressing the
iniquities of the past and the disparities of the present;
the promotion of maximum participation in democratic and accountable
governance at all levels;
the promotion of governance close to the people, which is responsive to
their needs and accommodates the diversity of regional aspirations and

Cooperative Governance

The final constitution should establish a cooperative system of governance
with the following guidelines:

Cooperative and coordinated national and provincial governance should be
promoted, while strengthening the role of provinces in national policy and
law making.
National and provincial governments should have regard for one another`s
legitimate interests in the exercise of their powers and functions.
Recognition should be given to legitimate regional aspirations and needs
through the exercise of appropriate provincial law-making and financial
and executive powers, within a context of overall national imperatives.

General Matters

The constitution should provide for a national framework for provincial
constitutions, which would allow for provincial variations on defined

*The ANC will make further submissions with regard to the principles
applicable to provincial constitutions at a later stage.

There should be democratically elected provincial legislatures, which
should have the executive and legislative powers as set out below. From each
of these legislatures delegates* shall be sent to the Senate, and a
provincial executive should be formed. A provincial executive must be
accountable to its provincial legislature.

*It may be ordinary MPL`s or MEC`s.

The allocation of powers and intergovernmental relations should be based
on the principle of coordinated and cooperative governance.
The final constitution should make a distinction between the following two
aspects of the division of powers:

The division of legislative powers between national and provincial
levels, and
the division of executive/ administrative powers between national and
provincial levels.

Elements of the Provincial System

The provincial system should have the following elements:

A Senate, representative of provinces, which effectively reflects
provincial needs and interests at national level, while providing an
appropriate forum for intergovernmental coordination*.

*The ANC is of the opinion that elaborate provisions on the detail of
intergovernmental coordination in regard to especially executive and
administrative matters should not be contained in the constitution, because
executive and departmental structures and line functions are involved which
must be allowed to develop gradually.

Concurrent legislative competences for national Parliament and
provincial legislatures.
Executive and administrative competences at national and provincial
levels, with the weight of executive competences being assigned to
A clear framework for determining uncertainties between national and
provincial competences.
The location of residual competences at national level.

The Senate

The final constitution should provide for a Senate, comprised of
representatives of the provinces and, possibly, representatives of local
government level, which should allow for effective influence and
participation of the provinces in national law-making at national level, and
which should function as the suitable forum for intergovernmental
Members of the Senate should be appointed and be subject to recall by
provincial legislatures and/or provincial executives.
Every province (and possibly the local level of government of South Africa
as a whole) shall each be entitled to a single delegation of Senators*.

*5 or 10, the precise number of Senators still to be recommended by the

The Senate should be a perpetual body. New representatives will be
appointed after national or provincial elections, but may be changed by the
provincial legislatures.
The Senate shall be entitled to block or approve laws dealing with
provincial matters*, it may initiate laws regarding provincial matters and
it shall have the right to review other legislation.

*In other words, the consent of the Senate shall be required for
legislation dealing with provincial matters. The precise way in which the
blocking power is to be exercised, shall be a matter of further discussion and
proposals. Deadlocks may need to be revolved through mediation or joint

The provinces shall be entitled, primarily through the Senate and its
structures or committees, to participate in financial and fiscal matters
affecting the provinces, especially in the drafting of the national budget,
although the Senate will have no powers to block financial bills.
The intention in the final constitution should be to introduce a framework
whereby the judicial determination of the pre-eminence of national
legislation is replaced by the requirement that the provinces themselves
through the Senate conclusively establish the desirability of the relevant
national legislation*. The courts will still have a role to determine
whether the overriding legislation fits the categories set out.

*See also the footnote to the text at 4.9.5 above.

Where the national government is empowered by national legislation to
promulgate subordinate legislation or statutory instruments which affect the
powers, functions or interests of provinces, the Senate should have a say
over the content of such instruments, particularly where the provinces are
required to implement such legislation or instruments*.

*Thus providing opportunity for co-determination in administrative
matters and for inputs from the provinces on account of their administrative

National and Provincial Legislative Competences

Provincial legislatures shall be competent to make laws for the province
with regard to all matters which fall within the functional areas specified
in Schedule 6 of the Interim Constitution*. Legislative competence shall
include the competence to make laws which are necessarily ancillary to the
effective exercise of their legislative competence. Parliament shall have
the same powers to make laws in regards to the above matters.

*Save for policing which was never really a Schedule 6 area but was
subject to Chapter 14.

In the event of an inconsistency between national and provincial
legislation, the Act of Parliament shall prevail over a law passed by
provincial legislation, only to the extent of any inconsistency between
them, if:

The national law deals with a function in respect of which uniformity
across the nation is desirable.
The national law deals with a matter in respect of which it is necessary
for South Africa to speak with one voice or to act as a single entity - in
particular, in relation to other states.
The national legislation is necessary for the maintenance of essential
national standards, for the establishment of minimum standards required
for the rendering of services, the maintenance of economic unity, the
maintenance of national security or the prevention of unreasonable action
taken by one province which is prejudicial to the interests of another
province or the country as a whole.
The national legislation deals with national economic policies, the
power to promote inter- provincial commerce and to protect the common
market in respect of the mobility of good services, capital and labour.
The national legislation provides for equality of opportunity or access
to a government service.
The national law establishes a national framework for the provision of
public services or the management of institutions relating thereto.

Where a provincial law deals with matters other than those referred to in
4.17 above, such as a specific socioeconomic and cultural need of a
particular province, it shall prevail over national legislation. Provinces
are not precluded from passing laws in regard to the matters intended in
4.17 above, provided such legislation is not inconsistent therewith.
In the event of a dispute concerning the legislative powers allocated by
the constitution concurrently to the national and provincial governments:

such legislation shall be deemed to be "necessary" or
"desirable" in terms of the requirements stated in 4.17 above if
such legislation has been approved by the Senate, and further
if such dispute cannot be resolved by a court by a construction of the
constitution, precedence shall be given to national legislation*.

*Constitutional principle XXIII.

Without derogating from the powers of national government under the
constitution, national government shall not otherwise exercise its powers so
as to encroach upon its geographical, functional or institutional integrity
of the provinces.
Residual powers shall be within the exclusive competence of the national
Provinces shall, in addition to its powers to legislate in its concurrent
areas of legislative competence, be responsible for developing the details
of the framework legislation of the national government, more specifically
in relation to its implementation and in ensuring that regional and
sub-regional variations are taken into account.

National and Provincial Executive Competences

Also in respect of executive or administrative competences the
constitution should give expression to the following two guiding principles:

Bringing government closer to the people, allowing for governance to fit
the specific conditions and variations in each province, region or sub-
region, and
at the same time building and maintaining a single harmonious and
prosperous nation and maintaining effective and cost-efficient government.

Both national and provincial government shall have executive powers in
regard to their concurrent competences.
Exclusivity of executive functions for provinces should primarily exist in
the context of executive implementation under enabling or framework
legislation, as approved by the provinces in the Senate, and the
implementation of provinces` own legislation.
Provinces shall be allocated the resources and powers to implement or
administer its legislation and such national legislation as is delegated or
assigned to it. In general, provinces shall be responsible for the execution
of the national legislation set out in 9 above. Ordinarily such
powers should, with the consent of the Senate, be allocated to provincial
government and, where appropriate, to local government, even if the relevant
legislation was passed at national level. In this regard,

executive powers shall be allocated to the level at which it can be
exercised most effectively and efficiently, and
in the event of a province failing or refusing to implement national
legislation, the national government may itself implement the legislation
or intervene.

Local Government

Binding Constitutional Principles

Government shall be structured at national. provincial and local

At each level of government there shall be democratic representation.
This principle shall not derogate from the provision of Principle XIII.
[Principle XIII relates to the status of traditional leaders - see below.]

A framework for local government powers, functions and structures shall
be set out in the Constitution. The comprehensive powers, functions and
other features of local government shall be set out in parliamentary
statutes or in provincial legislation or in both.


In general the Interim Constitution resolves the balance between national,
provincial and local government to the disadvantage of local government. It
should be noted that Constitutional Principle XXIV requires that a framework
should be set out in the final constitution for local government and that the
comprehensive treatment of local government should be the subject of parliamentary
or provincial
legislation, or both. The ANC takes the position that local
government is a matter of both national and provincial interest in view of the
history of using local government as a tool of apartheid policy, and because it
is the main point of delivery of the National Reconstruction and Development

Framework legislation on local government should be enacted at national
level, and not asymmetrically through separate legislation in different
provinces. Provinces should be responsible for the implementation of local
government, and the provincial management of local government. It should have
power to make laws not inconsistent with the national framework so as to take
into account provincial diversity. The framework should also protect
local government by specifying its powers of self-administration*.

*Because of nation-wide underdevelopment of local government in some areas
and their role in the national economy of South Africa and the RDP, the link
between local government and the national level could be fleshed out by giving
local government representation in the Senate in the form of a delegation of

It is suggested that the term self-administration* be used in respect of
local government**. Self-administration duties could be divided into those where
the local authority can decide whether and how to perform the duty, and those
where the local authority can only decide how to carry out the duty.

*Which, while allowing local authorities to act on their own
responsibility, leaves open the possibility of interaction with provincial and
national government in matters which are, respectively, of provincial or
national concern.

**Rather than autonomy, which could mean that interference with the
exercise of local authorities` duties by superior authorities may be resisted:
an absolutely free sphere of discretion for local authorities may then exist.

The ANC insists that local government should be democratically constituted,
and function in accordance with democratic principles. Traditional leaders may
and should participate in local government, subject to the principle of
democratic and accountable local government. The provinces could determine the
precise form that such participation should take.

*In this connection the ANC confirms that participatory democracy and
mechanisms to give effect thereto are vital to democracy in South Africa, and
that civil society and its various organisations have a crucial role in
democratising and transforming South Africa. The final constitution,
supplemented where necessary by national legislation, should provide for the
principles and appropriate/effective mechanisms of participatory democracy, as
well as for organs of civil society.

**Principle VII states that the principle of democratic local government
should not derogate from Principle XIII, which provides that the institution,
status and role of traditional leaders shall be recognised. It is submitted that
the role of traditional leaders is not threatened by democratic local government
if they retain an advisory and cultural function in local government within
their traditional areas.

The final constitution should not exhaustively lists the powers and duties of
local government councils. The most basic functions should be described in the
constitution and the rest of the detail should be left to the comprehensive
parliamentary legislation referred to above*.

*Local government authorities should have the following basic rights and

Choice of organisation and personnel of the local government within the
framework of national legislation.

Financial authority: the right to have its own revenue, determine
expenditure and administer financial affairs.

Planning powers: This could include the right to specify types of
buildings and the permissible land use in a municipal area.

Provision of facilities: This includes the establishment and operation of
public institutions for the benefit of the population.

Mandatory functions: Local authorities should also carry out functions
mandated by provincial or national government, provided the necessary financial
capacity is or is being made available.

By-laws: Municipalities should have the right to issue by- laws.

Administrative decisions: This is the right to make administrative
decisions arising out of the enforcement or implementation of national,
provincial and local government laws and by-laws. These need to be set out in
the final constitution.

Comprehensive provision for local Government, including its powers
functions and structures shall be provided for in national legislation. The
implementation and supervision of the legislation shall be delegated or
assigned to provinces. The national legislation shall:

prescribe the areas of self- administration of local government,
make provision for mandatory functions,
allow for the implementation of this legislation by provinces which may
pass legislation not inconsistent with the framework,
confer the right to make by-laws upon local government,
confer the necessary financial entitlements, authority and controls upon
local government, subject to the provinces` right to supervise such

Elections to local government shall take place on either a proportional or
ward basis, or both, by general, direct, free, and secret ballot.
Local government shall be required to function in a manner which would
allow interested parties to be appraised of and make representations
regarding decisions affecting the community.

Traditional Authorities and Cultural Bodies

Constitutional Principles


The institution, status and role of traditional leadership, according
to indigenous law, shall be recognised and protected in the Constitution.
Indigenous law, like common law, shall be recognised and applied by the
courts, subject to the fundamental rights contained in the Constitution and
to legislation dealing specifically therewith.

Provisions in a provincial constitution relating to the institution,
role, authority and status of a traditional monarch shall be recognised and
protected in the Constitution.

At each level of government there shall be democratic representation.
This principle shall not derogate from the provision of Principle XIII.


This Schedule and the recognition therein of the right to the South
African people as a whole to self-determination, shall not be construed as
precluding, within the framework of the said right, constitutional provision
for a notion of self-determination by any community sharing a common
cultural and language heritage, whether in a territorial entity within the
Republic or in any other recognised way.

The Constitution may give expression to any particular form of
self-determination provided there is a substantial proven support within the
community concerned for such a form of self-determination.

If a territorial entity referred to in paragraph 1 is established in
terms of this Constitution before the new constitutional text is adopted,
the new Constitution shall entrench the continuation of such territorial
entity, including its structures, powers and functions.


The institution of chieftainship has played an important role in the history
of our country and chiefs will continue to have an important role to play in
unifying our people and performing ceremonial and other functions allocated to
them in law.


The powers of chiefs shall be exercised subject to the provisions of the
constitution and other laws. Provision will be made for an appropriate
structure consisting of traditional leaders to be created by law, in order
to advise national Parliament, and, where appropriate, provincial
legislatures, on matters relevant to customary law and other matters
relating to the powers and functions of chiefs. Changes in the existing
powers and functions of chiefs will only be made by parliament after such
consultation has taken place. (More detailed proposals will be provided in
due course.)

Part 5

Judicial Authority

Binding Constitutional Principles

There shall be a separation of powers between the legislature,
executive and judiciary, with appropriate checks and balances to ensure
accountability, responsiveness and openness.

The legal system shall ensure the equality of all before the law and an
equitable legal process. Equality before the law includes laws, programmes
or activities that have as their object the amelioration of the conditions
of the disadvantaged, including those disadvantaged on the grounds of race,
colour or gender.

The judiciary shall be appropriately qualified, independent and
impartial and shall have the power and jurisdiction to safeguard and enforce
the Constitution and all fundamental rights.


Only the fundamental principles concerning the administration of justice, and
conduct of the courts, the right to a fair trial, including the right to legal
representation should be contained in the Bill of Rights. This chapter of the
Constitution should only deal with the structure of the Courts, their respective
jurisdictions and the appointment of the staff who administer them. The
Constitution should only set out the constitutional pre- requisites for a fair
judicial system. Consideration, therefore, must be given to the method of
appointment of judges, the composition of the Judicial Service Commission and
perhaps the manner in which the Attorney-Generals are appointed. Special
provision should be made to ensure an obligation to ensure access to justice for
all. In general however, most of the matters relating to the functioning of the
Courts should be left to legislation.

There will be some debate on the meaning of the word "independent"
as it relates to the Judiciary. In our view this does not mean that only judges
or lawyers should be allowed to appoint judges, but rather that once appointed,
the judge or judges are free from external political pressures. This is done,
usually, through protecting their tenure, e.g. by providing for non renewable
terms of office, or for life time tenure.

The Constitutional Court being a contentious and politically central
institution requires an appointment mechanism which is legitimate, sensitive to
the need for representivity, integrity, political and other diversity, as well
as legal wisdom. A mechanism solely in the hands of the legal profession would
only perpetuate a narrow professional vision of constitutional adjudication. In
any event, a legitimate court is more likely to be an independent and courageous

Structure of Courts

The existing structure of courts in the Interim Constitution should be
retained, except that most courts should be given the power to deal with
constitutional matters. The Constitutional Court will therefore become the
highest court of appeal for constitutional matters.

The Constitutional Jurisdiction of the Different Courts

Constitutional Court

The Constitutional Court should have final jurisdiction on all
constitutional matters. It should be the only court that can deal with the
following matters:

Issues that are in its exclusive jurisdiction, for example when
Parliament refers a bill for an opinion on its constitutionality.
The declaration of national legislation as being invalid.

The Constitutional Court should have the power to decide which cases it
will hear. It should have the power to take cases directly from lower courts
without waiting for a full appeal process to take place.
Provision will be made for direct access to the constitutional court by
members of the public, subject to the Court itself having the right to
determine whether to hear any matter. This matter should be dealt with in
national legislation.

The Appeal Court and Supreme Court

These courts should have full constitutional jurisdiction except as
outlined above. They will be able to declare national or provincial
legislation valid. However, if they are of the opinion that national
legislation is invalid, they must refer the matter to the Constitutional
court for a final decision*.

*The National Conference did not feel it was necessary to limit these
powers to legislation passed before 27 April 1994.

Magistrate`s Courts

Magistrates` courts should be able to deal with constitutional issues that
arise from the Bill of Rights, but they will not have any jurisdiction to
strike down legislation, not even local government bye-laws. However, the
jurisdiction of courts other than the constitutional and supreme courts is
best left to legislation and should not be dealt with in the constitution.

Appointment of Judicial Officers


The Constitutional Court could sit in smaller committees but should not
necessarily be comprised of distinct panels.
Constitutional and Supreme court judges should be appointed by a judicial
Service Commission as provided for in the Interim Constitution*.

*The National conference was not in favour of Parliament appointing
Constitutional Court judges.

In this regard it is proposed that:

The Judicial Service Commission should be restructured to ensure greater
public representation.
The transparency of the Judicial Service Commission should receive
attention. This should be the subject of legislation.
The Judicial Services Commission should also have a role in regard to the
functioning of the magistracy, judicial training, law reform, the
functioning of the courts and complaints against judges. The JSC will be
empowered to initiate impeachment proceedings.


The criterion for appointment of both Constitutional Court judges and
other should be that of a "fit and proper person" rather than the
present strict criteria for Constitutional Court judges.


The tenure of Constitutional court judges should be extended to 10 years,
with the following guidelines:

Appointment should not be for life.
There should be a fixed retirement age of 70.
Appointments should be non- renewable.
A method should be devised to ensure continuity, e.g. half the panel
could be re-appointed every six years.

Provincial Courts

Whether each province should have its own division of the Supreme Court is
a matter to be left to legislation*.

*The IFP proposals that there should be a parallel system of provincial
courts under the provincial governments which would have a final say on
matters of provincial competence were rejected.

National Attorney-General

Justice should be a national function and the present structuring of
Attorneys General on federal lines is not acceptable. The appointment and
tenure of Attorneys General should be dealt with in national legislation*.

*The ANC broadly favours that the highest judicial executive officer
should be the Attorney General, who may be a member of the Cabinet and who
shall be responsible for prosecuting offences in the name of the People of
South Africa. The provincial Attorneys General shall be accountable to him or

Participation and Access

Legislative provision shall be made for the participation of lay-people in
the administration of justice, and to ensure that indigent persons are
legally represented where the interests of justice so require.
The final constitution should lay an obligation on government to take
legislative and other measures to improve access to justice for all people,
for example through community courts, increased legal aid et cetera.

Traditional Courts

Traditional authorities should be recognised in the constitution in
accordance with constitutional Principle 13.
The constitution should, however, contain little detail on traditional
courts, as it should be dealt with in legislation.
Where necessary national legislation should provide for special courts
and/or alternative dispute resolution mechanisms*.

*This is necessitated by the fact that there are other traditional legal
systems such as Hindu and Islam law.


All other matters relating to the administration of justice, establishment
of special courts and the jurisdiction of any court, shall be set out in

The Public Protector, Human Rights Commission, Commission on Gender
Equality, Restitution of Land Rights

Binding Constitutional Principle

The independence and impartiality of a Public Service Commission, a
Reserve Bank, and Auditor-General and a Public Prosecutor shall be provided
for and safeguarded by the Constitution in the interests of the maintenance
of effective public finance and administration and a high standard of
professional ethics in the public service.


Whereas many of these Commissions are set out in the Interim Constitution in
the form as originally conceived by the Constitutional Committee, there has been
some debate as to whether the Human Rights Commission and the Commission on
Gender Equality overlap and whether they need to be distinguished in form and
function, or should be merged. The question of land claims and reparations
should be dealt with in the chapter on human rights.


The Bill of Rights shall establish the principles and procedures whereby
land rights will be restored to those deprived of them by apartheid
statutes. A Land Claims Court Tribunal, functioning in an equitable manner
according to principles of justice laid out in legislation, will, wherever
it is feasible to do so, restore such rights*.

*The rights, however, should go beyond restoration, and include access
rights. Much of the procedural matters and detail which are currently
addressed by the Land Claims Court must be provided for in national
legislation and not the final constitution.

There shall be an Human Rights Commission charged with ensuring observance
of Human Rights. There shall be a Public Protector charged with ensuring
clean government, free of corruption, rudeness and maladministration. The
Human Rights Commission shall be empowered to litigate on behalf of
complainants. Both bodies shall report annually to Parliament. The details
of their functioning shall be set out in law. They shall have power to
investigate the systemic sources of any malpractices. These institutions
shall have the necessary resources and powers to perform their functions,
and shall be empowered to negotiate or mediate between complainants and the
body or person who is the subject of the complaint. The length of tenure of
the Public Protector should be seven years, renewable for a further term of
seven years.
The Constitution shall protect the independence of these institutions,
inter alia by requiring their appointment by Parliament, with a 2/3
majority, and protecting them from dismissal save on grounds of incapacity
or misconduct.
There shall be a Commission to advance gender equality, inter alia by
consulting women and by conducting enquiries and research on the situation
of women. The detail regarding this Commission could be the subject of
national legislation.
These bodies may establish provincial offices.

Proposals Regarding the Interim Constitution, 1993

The establishment and appointment of the Public Protector:

Sect 110(1), (2)(a) and (b) and (3) is to be endorsed.
Sect 110(4) is to be amended to provide for qualifications other than
legal qualifications to be acknowledged in this regard. Ten years
administrative experience of any kind should be regarded as sufficient.

Sect 113 on staff and expenditure is to be removed.
Sect 117 on staff and expenditure is to be removed.

Part 6

The Public Service and Security Services

Binding Constitutional Principles

The independence and impartiality of a Public Service
Commission...shall be provided for and safeguarded by the Constitution in
the interests of the maintenance of effective public finance and
administration and a high standard of professional ethics in the public


There shall be an efficient, non-partisan, career-oriented public
service broadly representative of the South African community, functioning
on a basis of fairness and which shall serve all members of the public in an
unbiased and impartial manner, and shall, in the exercise of its powers and
in compliance of its administrative functions. The structures and
functioning of the public service of its members shall be regulated by law.

Every member of the public service shall be entitled to a fair pension.

The Public Service


On the Public Service the Interim Constitution is especially detailed and
deals with issues which should be left to Parliament for legislation*.

*E.g. the extensive treatment of the Public Service Commission and the
transitional arrangements.

ANC Policy states:

"The whole of the civil service will have to be opened up so as to make
it a truly South African civil service, and not the administrative arm of a
racial minority. The civil service should be impartial in its functioning, and
be accountable both to parliament and to the broad community it serves,"


"We do not support giving positions to unqualified people simply on the
grounds of race or gender. What we will insist on, however, is that the hundreds
of thousands of highly merit-worthy persons who have been unjustifiably kept out
of jobs, denied advancement in their careers and excluded from training, be
given their due. Those who have been kept back by apartheid education and by
sexist assumptions should be given special backing to catch up. The rich life
experiences, knowledge of languages, and cultural diversity of those previously
discriminated against should be seen as enriching the contribution of individual
South Africans."

The main directions of the ANC with regard to the Public Service in the final
constitution are the following:

  • The present powers of the Public Service Commission should be made
    compatible with the powers of a democratically elected government.
  • An excessive set of structures and duplicated functions should be
  • *This is especially true in relation to ombud structures, though the
    need is acknowledged - see below.

  • The national cohesion of the public service is to be maintained.
  • Corruption and nepotism should be effectively countered.
  • Equality of opportunity and affirmative action should be ingrained in the
    Public Service.

The Interim Constitution has an extensive set of provisions that directly
affect the way the public service is structured and managed. There is now a
consensus developing that the management of the public service needs to be
thoroughly transformed to bring it in line with the best management practices
both within South Africa and internationally. The problem is that the provisions
in the Interim Constitution limit this kind of transformation. In particular:

  • The Public Service Commission is not merely an advisory and evaluation
    body, but is responsible for organisational structuring, bargaining and the
    day-to-day operational management of the public service.
  • There is no proper executive responsibility for setting the overall policy
    and management framework for the public service.
  • Only deracialisation is referred to in transformation, without also
    referring to democratisation of the working and organisational environment
    of the public servant.
  • Efficiency (how quickly and competently inputs are turned into outputs) is
    the only underlying principle of management referred to, thus ignoring the
    equally important management principle of effectiveness (the extent to which
    objectives are achieved).
  • Although provincial government is elected and democratically accountable
    to its provincial citizens, provincial government cannot be held entirely
    accountable for the practices of its public servants because the provinces
    do not have sufficient control over the day-to-day management of these
    public servants.
  • The notion of a professional public service has been abused to ensure the
    internal promotion of existing public servants in preference to external
    lateral entrants.
  • The Constitution should adopt a minimalist approach consisting of a broad
    statement of principles and general references to a governing framework.


The final constitution should contain the principles within which the
Public Service should be regulated.
The constitution should provide that an independent and impartial Public
Service Commission is to be established by a national law (a Public Service
Commission Act):

Under direction of the relevant Ministry, the Public Service Commission
should be charged with ensuring that the objectives as stated in paragraph
6.4 below and the constitution are attained.
The Public Service Commission shall cater for all government employees
at all levels of government.
The Public Service Commission shall perform a watchdog/ombud role in
such a way that legislated national standards and norms shall be
monitored, investigated and reported upon.
The extent of the powers and functions of the Public Service Commission
shall be compatible with democratic governance and accountability.
The Public Service Commission shall have a component to deal with the
security services.

The functions of the Public Service Commission shall not be done by way of
the constitution, but rather through a national law. The structure of the
Public Service Commission shall ensure provincial representation in national
processes while simultaneously ensuring that there is full and direct
accountability at provincial level for the implementation that takes place
at that level*. There shall be no Provincial Service Commissions.

*With regard to the Public Service Commission Act, it is to be proposed
that Commission should consist of 10 Commissioners:

  1. A chairperson appointed by the President in consultation with the
    Executive from nominations by a (joint) Committee of Parliament;
  2. A person appointed by each of the Executive Councils of the provinces
    from nominations of a committee of each legislature;
  3. Each Commissioner of the Public Service Commission shall establish an
    Office which, together with the relevant Commissioner, shall be
    accountable to the legislature (at national or provincial level).

National legislation should be adopted to ensure merit, equity and
representivity in appointments and promotions, and create ability for
change, development and administrative reform.

There shall be uniform minimum conditions of service for all government
employees at all levels. The rights of all public sector workers, as well
as the terms and conditions of service of its members, should be regulated
by national labour law.
The constitution should provide that appointments by the executive in
the Public Service may be made.
Other than that required for fair labour practices, there shall be no
special job guarantees for any public servants.

The Public Service should:

be professional and career-development orientated,
be broadly representative of the South African society,
be efficient, effective and responsive in terms of the delivery of
service to the public,
be transparent and accountable to the public and legislature,
be loyal to the government of the day,
ensure equitable delivery of service at all levels of government.

During their tenure of office no public official* shall use his or her
position to directly or indirectly enrich themselves or to directly or
indirectly benefit any person in a manner which is not fit and proper in the

*This term will require suitable definition.

**Taken from sect 42(1), Namibian Constitution.

The Security services

Binding Constitutional Principle

Every member of the security forces (police, military and
intelligence), and the security forces as a whole, shall be required to
perform their functions and exercise their powers in the national interest
and shall be prohibited from furthering or prejudicing party political


General Guidelines on Security

The history of South Africa with regard to the misuse of security apparatuses
compels a principled treatment of security services in the final constitution.

The fundamental approach of the ANC is that the final responsibility for
security should be taken out of the hands of the security apparatuses and be
placed squarely in the jurisdiction of the democratically elected Parliament and
Executive, thus restricting the security apparatuses to act within the law and
guidelines laid down by Parliament and the Executive. Terminology used by the
old security forces should be not be used in order to avoid their
interpretations to creep into the new system*.

*For example, the terminology of "law and order" should be
replaced by "rule of law", and "internal security" should be
replaced by "safety and security", because old style Security Branch
thinking may possibly otherwise argue for a wide domestic intelligence brief,
rather than a crime intelligence brief.

The potential for anti-democratic action on account of the armed nature of
these forces and the access to technology and resources for conducting covert
operations puts them in a different relationship to a democratic constitution.
It does not, for example, suffice to say somewhere that the constitution is
supreme and therefore all organs of society are bound by it. The security
services are to be bound explicitly. It is preferred that the constitution
should refer to a national defence force, a police service, a civilian domestic
intelligence service and a civilian foreign intelligence service.

The following principles are expanded on in the proposals below:

  • The fundamental objectives of any security policy should be
    constitutionally enshrined in the sections dealing with the security
  • Civilian control over the security services at ministerial level and
    through other mechanisms should be constitutionally enshrined. Security
    ministries should be civilian ministries.
  • Parliamentary oversight of the different security services (subject to the
    need for security within oversight mechanisms where necessary) must be
    constitutionally enshrined.
  • The right of the public to access information must be provided for
    constitutionally, provided that this be limited as specified in law, in the
    interests of current national security.
  • Members of the security services shall have the rights as defined in the
    Bill of Rights, subject to a limitation clause, as in Sect 33(a) of the
    Interim Constitution, with the retention of mechanisms for giving effect to
    the essence of such rights.
  • The constitution should define the presidential powers in relation to the
    security services, declarations of emergency and states of national defence
    or war*.
  • *As already proposed.

  • Certain provincial functions in relation to the security services could be
    provided for in the sections of the constitution dealing with the division
    of powers, provided that intelligence, defence and police should be national
  • *But see below under Police for the role of MEC`s for Police and
    community policing.


Security institutions should not act on their own authority, but rather
under guidance of, and by virtue of functions defined by, Parliament and the

*The constitution as the supreme law of South Africa must thus be
binding on the security services and final responsibility for national
security should rest with Parliament and the Executive.

The final constitution should give effect to a progressive concept of
security and should accordingly provide principled guidelines regarding the
objectives of security and the interpretation of threats to security*.

*The ANC endorses the following:

  1. Security is an all-encompassing and holistic concept that
    enables people to live in peace and harmony, enjoy equal access to
    resources as well as to transform and develop their lives.
  2. The objective of national security shall therefore go beyond
    achieving an absence of war and physical violence to include the
    consolidation of democracy, respect for human rights, social justice,
    sustainable economics development and protection of the environment.
  3. Threats to security shall not be interpreted as being limited to
    external military aggression, but shall include poverty, social injustice,
    socio-economic deprivation, abuse of human rights and disjunction of the

The Executive should not be able to employ the security services in
violation of the constitution.
The constitution must prescribe that the security services should:

not discriminate on the grounds of sex, race, sexual preference,
religion or belief,
reflect the composition of South African society,
be non-partisan as institutions and not allow partisan political
activity in the services as such,
reflect at all times a reasonable balance between democratic
transparency and secrecy,
be guided by an approach to the resolution of conflict, whether internal
or external, primarily by non-violent means,

The members of security services should:

be obliged to carry out all lawful orders and disobey any unlawful
be educated to a reasonable level in relevant international law and
conventions, the constitution, human rights and applicable law.

Intelligence Services

The holistic descriptions of national security in footnote 10 above is not
intended to be also the brief or mandate of any single security service. The
door should not be opened for another "total onslaught" methodology by
the security services. They should not be left unchecked to go into every corner
of society*.

*See also 6.8 - 6.11 above, which is of fundamental importance for the
restrictions on security services.

In the description of the mandates of the different security services which
follows here, the guiding principle is still that the responsibility for
security is taken out of the hands of the services as such and placed in
Parliament and the Executive. The intelligence services should have the primary
duty to equip the Executive and Parliament to safeguard the South African public
and South Africa`s national interests by selecting, processing and analysing
information, and to advise the government on security and public safety

The following aspects of the control, accountability and structure of
Intelligence services should be provided for in national legislation rather than
the constitution:

  • The national Intelligence services of South Africa should consist of the
    • a civilian intelligence organisation that shall be responsible for the
      conduct of domestic intelligence and fulfillment of the national
      counterintelligence responsibilities;
    • a civilian intelligence organisation that shall be responsible for the
      conduct of foreign intelligence;
    • the appropriate structure of the Police service that is responsible for
      the conduct of crime intelligence;
    • the department within the National defence force which is responsible
      for the conduct of military intelligence.
  • The President should be able to draw on the executive support of a
    Minister to be known as the Minister of Intelligence. Together they should
    exert ministerial control over intelligence and have accountability to
    Parliament for intelligence.
  • Operational control and management of the intelligence services is to be
    exercised by the Director General of the various structures under the
    direction of the relevant Minister.
  • A coordinating mechanism essential to coordinate the flow of information,
    priorities, activities, policies, resources, interpretation and other
    matters pertaining to the functioning of national intelligence, as defined
    in an Act, shall be chaired by a Coordinator of Intelligence who shall be
    appointed by and accountable to the President.
  • The intelligence structures and its members shall be governed by a code of
    conduct that shall regulate their activity strictly within the Bill of
    Rights, and define the reciprocal obligations of the Service towards its


The President shall be ultimately responsible for, and have control over,
the Intelligence services, and he is accountable to Parliament for
intelligence matters with executive support of a minister responsible for
There shall be a multi-party Parliamentary oversight committee, to be
appointed by the Speaker of Parliament in consultation with the President
after consultation between the President and Heads of the political parties
represented in Parliament*.

*Members of the committee must take an oath of secrecy relevant to their

The constitution should provide for judicial control over intrusions onto
individuals` rights of privacy when there is a perceived threat to national
Members of the intelligence services shall have the rights as defined in
the Bill of rights, subject to a limitation clause, as in Sect 33 of the
Interim Constitution. Freedom of speech and association should be curtailed
for the duration of their employment and for the length of time legally
determined for classification of material.
National intelligence should be a function and responsibility of the
national government and should not be delegated to provincial governments.
The constitution should provide that access to information, relating to
defence, national security or public safety, that is current and obtained in
confidence, should be limited for a specified time as defined in law.
The Intelligence services should operate within the law.
The constitution should prohibit their having an influence, directly or
indirectly, over political events in foreign countries, except in
circumstances of war in the last-mentioned instance.
The members of the Intelligence services will be bound by an oath of
secrecy and allegiance to the Constitution.
The constitution should state that provision is to be made in national
legislation that each intelligence service must be subject to independent
civilian oversight by way of an inspectorate. Such an inspectorate will also
function as a mechanism of grievance resolution.
The constitution shall stipulate that there shall be no private
intelligence services.

The National Defence Force


The Interim Constitution contains both matters of details that belong
lawfully in normal national legislation and matters that belong in a
constitution. This is particularly true of matters relating to the defence
function. The constitution should not contain matters which fix structural and
command provisions with respect to a specific state department.

It should accordingly not be necessary to cover the range of defence issues
currently set out in the Constitution, particularly those dealing with the
structure of the national defence force. It will also not be necessary to deal
with the various provisions essentially directed at the integration process.
What the Constitution should deal with are the fundamental principles relating
to the place of the Defence force in democracy. Proposals on the organisation
of the Ministry need not be spelt out save to ensure that the Constitution
does not preclude it.


The primary duty of the national defence force should be to defend the
inhabitants, the territorial integrity and the sovereignty of South
Africa. Actions of the defence force should conform to relevant
international, constitutional and other law, and conventions.
There shall be only one national defence force. The President shall
appoint the Chief of the national defence force, who shall perform his or
her functions subject to the directions of the Minister of Defence, and
during a state of war, of the President.
The national defence force shall be politically impartial and
non-partisan. Members of the national defence force shall not hold office
in a political party. The national defence force shall comply with
international customary law and treaties regarding armed conflict, and its
members shall be obliged to obey lawful orders and shall be obliged to
disobey orders in breach of such international law or unlawful orders.
The departmental structure including function and powers of role players
other than Minister responsible for defence should be dealt with in a
Defence Act.
The constitution should provide for one national defence force,
structured in terms of law.
The constitution should define the President as Commander-in-Chief.
The constitution should state that the President as Commander-in-Chief
should have the power to employ the national defence force for specified
functions*, as defined in law.

* Including those presently mentioned in Sect 227(1)(b)-(f) of the
Interim Constitution.

The defence force should at all times defend and uphold the constitution
and should be prohibited from acting on their own and bypassing Parliament
and the Executive.
There shall be a multi-party oversight committee of Parliament on
defence to exercise oversight control over the Defence force. Such a
committee shall initiate and deal with legislation relating to the Defence
force, and must be able to make recommendations on budgets, budget
functioning, organisation, armaments, policy, morale, and state of
preparedness of the national defence force, and to perform such other
functions relating to parliamentary supervision as may be prescribed by
The constitution should provide for presidential power to declare a
state of national defence or war subject to parliamentary confirmation.
The oversight committee and Parliament should be informed by the President
if the national defence force is deployed in defence of the country, in
support of the Police or in compliance with any international obligations.
Parliament may review such deployment.
The President shall confer upon members of the national defence force
permanent commissions and cancel such commissions.
The provision of section 224(2) of the Interim Constitution should be
enacted in a transitional clause in a defence act in order to provide for
the continuation of the present NDF.
The constitution should provide for a specific military ombud
function/person to deal with complaints of members of the defence force
and the public against the national defence force. The precise role of the
ombudsperson and its relationship to the public protector and human rights
commission should be contained in relevant legislation.

SA Police Service


The provisions dealing with the Police will need revision in the light of
current problems experienced regarding dual authority over policing agencies.

The ANC is committed to the creation of a single police service. The
primary function of policing will be the prevention of crime and to guarantee
the personal security of citizens and peaceful exercise of their rights as
defined in the constitution. The principles governing the new police service,
which shall also be inculcated in their training shall be:

  • Policing shall be based on community support and participation.
  • the Police shall be accountable to society and the community it serves
    through its democratically elected institutions.
  • The Police shall uphold the values of the Constitution.


The police service should have the primary duties to prevent crime, to
investigate offenses or alleged offenses, to maintain the rule of law and
to protect the safety and security of citizens. The police should adhere
to and protect the constitution.
Community policing:
The principle of community policing must be defined in the constitution
as a guiding principle of the police service. The details of appropriate
structures, budgetary provisions, composition etc must however be defined
in a national law.
There shall be established, in accordance with a law, police-community
forums which shall evaluate visible police services and the efficiency and
accountability of the service in respect of the community for which it is
There should be one national Police service in South Africa, loyal to
the national constitution, and with structures devolved to the provinces.

The President shall appoint the National Commissioner in consultation
with the relevant Minister. The duties of the National Commissioner
should be as currently enshrined in the Interim Constitution.
The National Commissioner shall appoint Provincial Commissioners after
consultation with the relevant MEC`s.
A responsible MEC should have the responsibility to monitor effective
policing on provinces together with the Provincial Commissioner. He/she
should see to the establishment of appropriate structures for community
policing, and have oversight responsibility over the Provincial
Provision should be made by law, and not in the constitution, that
there will be a civilian secretariat within the Ministry of Safety and
Statutory provision should be made for an executive structure
consisting of the Minister and the relevant MEC`s.

Members of the police service shall have the rights as defined in the
Bill of Rights, subject to a limitation clause, as in clause 33(a) of the
Interim Constitution.

The constitution should not address the details of labour relations,
which should be set out in regulations and law*.

*Compulsory collective bargaining and dispute resolution and
arbitration should be provided for in a law. Those provisions should
curtail the right of members of the Police service to strike.

An independent mechanism may be set out in a national law whenever the
need arises, to receive and investigate, or monitor the investigation of
complaints by members of the public against members of the service.
Border policing should be the responsibility of the police, except under
certain conditions such as a state of war.
Although there must evidently be an oversight committee in Parliament,
there is no need for special provisions for this committee.
The constitution should not deal with details on the matter of public
order policing* **.

*Public order policing is a national competency, and there may be a
need for the establishment in a national law of a rapid response unit which
could only be activated by the National Minister or National Commissioner.
This unit should be able to perform other functions necessary for policing
in general.

**The constitution should also not deal with private security
companies. The lack of accountability in the function of private security
companies, except to their owners/or people employing them, requires a
review of present legislation to ensure it provides for the establishment
and function of these companies within the parameters of a Parliamentary

The establishment of municipal or metropolitan police, and the
resolution of the question of tribal police, should be left to national
legislation, which should not be precluded by the constitution.

Part 7


Binding Constitutional Principles

The independence and impartiality of a Public Service Commission, a
Reserve Bank, and Auditor-General and a Public Prosecutor shall be
provided for and safeguarded by the Constitution in the interests of the
maintenance of effective public finance and administration and a high
standard of professional ethics in the public service.

A Financial and Fiscal Commission, in which each province shall be
represented, shall recommend fiscal and financial allocations to the
provincial and local governments from revenue collected nationally, after
taking into account the national interest, economic disparities between
provinces as well as the population and developmental needs,
administrative responsibilities and other legitimate interests of each of
the provinces.


National Financial Affairs

The provisions regarding the Auditor-General, South African Reserve Bank,
Financial and Fiscal Commission, require concrete analysis in the light of the
existing experience of these institutions. In general it is not appropriate
for the Constitution to deal with these issues, although arguments will be
advanced that these institutions should be guaranteed a degree of
administrative autonomy. Current provisions are essentially adequate.

The general approach of the ANC towards the constitutional provisions
relating to financial institutions* is that these constitutional provisions
should be restricted to broad general principles with details to be dealt with
in normal national legislation. The constitution should only deal with those
institutions specifically required to be dealt with by the Constitutional

*Like the Financial and Fiscal Commission, the Reserve Bank and

The clauses in the Interim Constitution on the Reserve Bank should be taken
over unchanged into the final constitution, except that Sect 196(2) should
spell out that the consultation between the Reserve Bank and the Minister
responsible for national financial matters should amount to "in
consultation with" rather than the weaker "after consultation".

There are no specific provisions in the Interim Constitution relating to
public enterprises, although these are governed by legislation. The ANC sees
no reason for specific provisions on public enterprises to be included in the
final constitution.

Provincial Financial and Fiscal Affairs

The ANC should accept as guiding principles for provincial* financial and
fiscal affairs that:

*In some respects applicable to local government as well. See below.

  • The national-provincial fiscal and financial system should address
    fiscal inefficiencies and financial inequities that exists in South Africa
    by reason of the apartheid legacy, and the need for special mechanisms
    occasioned by the new provincial system.
  • National, provincial and local levels of government should have adequate
    financial resources at their disposal to exercise their responsibilities
    and to function effectively and efficiently.
  • The economic principles which should guide the approach to financial and
    fiscal relations between local, provincial and national government should
    be the following:
    • Fiscal efficiency
    • Fiscal equity
    • Affordability, accountability and flexibility
    • The preservation of the economic union of South Africa
    • Tax harmonisation
    • Accommodation of spillovers of benefits or costs across provincial
    • The promotion of economic democratisation, and reconstruction and
    • Prudent fiscal management.
  • South Africa should have a predominantly unified legislative and
    administrative fiscal and public financial system: it should be a joint
    fiscal system under leadership of national government, and not a rigidly divided
    system between national and provincial levels of government*.
  • *Canada, for example, is experiencing a crisis with its system of
    divided fiscal federalism.

    In this regard there should be a co-operative rather than a competitive
    relationship between national and provincial governments. This would amount
    to the provinces being incorporated into decision-making in regard to the
    budget. In return the provinces would be required to accept greater
    responsibility for acting within agreed policy frameworks. Giving effect to
    this new arrangement would require:

    • Inserting provisions in the final constitution giving the new Senate
      an appropriate role in the passage of money bills*.
    • *This would need to be part of an overall package arrangement.

      Any recommendations in this regard should also fit in with proposals to
      broaden and strengthen the role of the legislature in the passage of money

    • Considering incorporating into the constitution provision for the
      involvement of mandated political representatives of the provinces and
      national government in structures engaged in the budgetary drafting
      process, such as the budgetary committee.

The final constitution should provide that the bulk of revenue should be
apportioned at national level after participation by provincial and
local levels of government. This implies horizontal and vertical financial

In general original taxing powers for provinces should not be
constitutionalised. Where, however, it is more efficient to collect a tax
locally or regionally, this level could be allocated this power, and use the

*E.g. it would be inappropriate to charge one level of government to
raise taxes only to pay it over, because the task may be done inefficiently.

The policy of the ANC should be tax harmonisation, with the
following objectives:

  • Efficiency in the national internal market: Differential tax policies
    across provinces can lead to distortions in the interprovincial allocation
    of resources, to wasteful tax competition among provinces, and to
    excessive use of private sector resources (like accounting, financial and
    management resources) simply to comply with different tax regimes and to
    avoid taxes.
  • National equity: Tax competition may reduce the redistributive content
    of the tax system. Different redistributive policies across provinces may
    detract from national equity goals.
  • Ease and cost of administration: Collection and compliance costs can be
    reduced; avoidance and evasion may be reduced.
  • The financial constitution should be a flexible system. Flexibility lies
    in the fact that fiscal efficiency may sometimes drive decentralisation,
    while fiscal equity may sometimes drive centralisation.

Financial and Fiscal Commission

A strong, independent and accountable FFC can make a major contribution to
achieving fiscal stability and to promote equitable relations between
different tiers of government. Macro-economic stability depends on maintaining
control at national level over borrowing of provincial and local governments.
The FFC should have the role to provide advice to the Executive in preparing
the budget and to Parliament to deal with the budget.

Provision will be made for an effective and independent Auditor-General
and Reserve Bank.
Revenue from taxes, except those specifically designated by national
legislation as being provincial taxes, shall accrue to and be collected by
the national level of government, to be allocated for national, provincial
and local governments in accordance with national legislation.
The provinces should be entitled to an equitable share of national
revenue, as provided for in Constitutional Principle XXVII.
The Financial and Fiscal Commission (FFC) shall be established to advise
the government on the apportionment of revenue to the provinces. Its
function and structure should be governed by legislation, with the proviso
that the constitution should provide for representation from the

*Much of the detail of appointment, structure and function should be
dealt with in legislation and not in the constitution.

The final constitution should deal both with borrowing powers of the
provinces as well as guarantees along the lines of Sect 157 of the Interim
Provinces may raise and collect those taxes (including surcharges on
other taxes) when they are authorised to do so by national legislation
after consideration by the Financial and fiscal Commission*.

*The constitution should not go into detail of the kind of taxes that
may or may not be raised by the provinces.

Provinces may impose user charges after consulting the FFC and provided
such charges do not discriminate against non-residents.
The constitution should include provisions both for borrowing by local
government as well as for guarantees for local government loans as is the
case for provincial government*.

*The content of these provisions requires further reflection, as some
consideration of the differences between provincial and local government and
between different forms of local government will need to be taken into