Chapter 1 - The South African Constitution and Bill of Rights
The Republic of South Africa will be one, sovereign, democratic state founded on the following values:
The Constitution is the highest law in the law in the country and everyone will be bound by the Constitution. Any laws that go against the Constitution will be changed or set aside.
All South Africans are South African citizens. Every citizen is equal and has a right to the rights and privileges of being a citizen of South Africa. Everyone also has duties, obligations and responsibilities of being a citizen of South Africa.
The national flag will be black, gold, green, white, red and blue.
The national anthem will be decided by the President.
There are 11 official languages. These are: Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.
A Pan-South African Language Board must promote the use of all official languages, the Khoi, Nama and San languages, and sign language. It must promote and respect other languages used in South Africa such as Arabic, German, Greek, Gujarati, Hebrew, Hindi, Portuguese, Sanskrit, Tamil, Telegu, Urdu and other languages used for religious purposes.
Chapter 2 (sections 7 – 36) of the Constitution contains the human rights that will be protected in South Africa. The following section describes each of these rights and relevant laws that have been passed to give effect to individual rights.
Chapter 2 contains the human rights which will be protected in South Africa. These are put in the Constitution for these reasons:
The Bill of Rights can only be changed by a Bill passed by:
Section 7 also says the government must respect, protect, promote and fulfill the rights in the Bill of Rights.
The Bill of Rights applies to all laws. It must be followed by all branches of government and all government bodies. This means it must be followed by:
It must be followed by these government bodies at all levels, in other words, National, Provincial and Local government level.
Vertical and horizontal application of the Bill of Rights
The Bill of Rights applies to all matters between citizens and the Government. This means it applies in a vertical way between government and citizens. It protects citizens from things done to them by the government.
The Bill of Rights also works in a horizontal way. This means it applies to matters between ordinary people or businesses, but only if this makes sense. It protects people from things done to them by other people.
It will be up to the courts to decide whose right is more important in each situation. The Constitutional Court has said each case will be decided on its own merits. People can also use ordinary laws that protect their rights, for example the Employment Equity Act that protects workers' right to equality.
1. Everyone is equal before the law and has the right to equal protection and benefit of the law.
Being equal before the law means all laws may not unfairly discriminate against anyone. Everyone is entitled to equal rights and freedoms. This also means there should be equal representation on legislative bodies (in other words, bodies that make our laws). In this way we can make sure that all the different needs of the people of the country are shown in the laws.
The right to 'equal protection before the law' means people have a right to the same opportunities and to have equal access to resources, which would allow them to be equal in the future.
2. Equality includes the full and equal enjoyment of all rights and freedoms
The government must take active steps to change the inequalities of the past by passing laws that promote the achievement of equality. This is called affirmative action.
Affirmative action means taking positive action to protect or help a person or group who has been prejudiced or disadvantaged in the past. People sometimes call this 'fair discrimination'. Section 8 of the Constitution allows affirmative action. It accepts that if we want to achieve equality it will be necessary to take positive steps to help undo the imbalances and disadvantages for individuals and groups that were caused by discrimination and oppression in the past. But, the circumstances of the person or group must justify the affirmative action.
The Employment Equity Act puts the right to equality into practice in the workplace. The Employment Equity Act makes it compulsory for employers who employ more than 50 people to introduce affirmative action measures to fix past discriminatory practices. It says people from designated groups (black people - including African, coloured and Indian - women and people with disabilities) must be given equal employment opportunities and they must be equitably represented in all work categories and levels.
The Affirmative Action in the Public Service Act covers employment in the public sector (the government service). Under the Act all government departments must have affirmative action programmes. The affirmative action programme must set out steps to make the department more equally representative of previously disadvantaged groups (specifically black people, women and people who are disabled).
3. Neither the state nor any person can unfairly discriminate against someone, either directly or indirectly. It is against the law to discriminate against anyone on any of the following grounds:
It is not always the case that an action which treats people differently is an infringement of the right to equality. The Constitutional Court has decided that there are a series of questions that need to be asked before it can be found that a particular action amounts to discrimination. These questions are:
The Constitutional Court has decided that there are a series of questions that need to be asked before it can be found that a particular action amounts to discrimination. These questions are:
The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 creates a general prohibition against unfair discrimination and says what discrimination is against the law in different sectors of society including: in employment, education, health care, land, housing and accommodation, insurance, pensions, services, associations and partnerships, clubs, professions and the media. The Act defines each sector and says what discrimination is not allowed in each of these sectors. If someone is charged with unfair discrimination it is up to the person who is doing the discriminating (not the person discriminated against) to prove that the discrimination was reasonable and justifiable. The courts will decide if an action was unfair by looking at how the action affected the person bringing the claim The Act also says how people who have been discriminated against can be compensated for this.
Equality Courts can hear cases of discrimination and have powers to conciliate and mediate, grant interdicts, order payment of damages or order a person to make an apology. (See www.doj.gov.za and click on Equality legislation for contact details of Equality Court Managers in the different provinces).
Everyone has dignity and the right to have their dignity respected and protected.
Everyone has the right to life.
The Criminal Procedure Act includes the right for police (or someone legally entitled to make an arrest) to ‘shoot to kill’ in certain situations. Section 49(1) of the Act deals with the use of force to carry out an arrest. Section 49(2) says that ‘deadly force’ may be used in certain circumstances to carry out an arrest.
The Constitutional Court recently looked at the use of force to make an arrest and at how this impacted on a person’s rights. In the case of S v Walters, the Court had to look at balancing peoples’ right to life, dignity and bodily integrity and the interests of a just criminal system.
The Court found that a person making an arrest is not entitled to use a firearm in the process unless:
The Court said the provisions relating to the use of ‘deadly force’ for arrests were too wide and were therefore unconstitutional. For example, using ‘deadly force’ in the case of a person caught shoplifting would not be justifiable.
The death penalty
The debate about the death penalty is based on the right to life, and the right not to be treated or punished in a cruel, inhuman or degrading way (section 12). Those who are against the death penalty argue that the state cannot execute (kill) criminals even if they have taken someone else's life. Others who want to keep the death penalty say that the death penalty can be allowed because someone who has taken another human being's life has given up the right to their own life.
The Constitutional Court has said that the death penalty goes against a person's right to life. So, a court cannot pass the death sentence against anyone.
Termination of pregnancy (abortion)
The debate about abortion is based on the right to life, and the right for women to make decisions about reproduction (having children) and to have control over their own bodies (Section 12). People who argue against abortion say the unborn baby has the right to life from the moment the egg is fertilised. People who argue for abortion say that women have the right to make decisions about their own bodies, and that the decision as to when life begins (in the womb or at birth) is for each individual to make.
Parliament has passed a law called The Choice on Termination of Pregnancy Act. Up to a certain stage of pregnancy, women can now choose to end a pregnancy. Government hospitals should provide facilities to carry this out.
This includes the following rights:
Violence and abuse in the home
Everyone has the right to be free from all forms of violence in the home. This right ensures that the government and the police must take measures to prevent domestic violence, for example, abuse of women and children in the home.
This means giving beatings or whippings for punishment. The Constitutional Court has decided that punishing people and children by whipping them or giving them a caning goes against this right.
The Abolition of Corporal Punishment Act (1998) says beating a child as a form of punishment is illegal because it goes against a child's right to dignity and his/her right not to be treated in a degrading way.
No form of slavery or forced labour is allowed.
Everyone has the right to privacy, including the right not to:
The Interception and Monitoring Prohibition Amendment Act (1996) prevents people's conversations being intercepted.
Everyone has the right to believe or think what they want, even if their opinion is different to the government. Everyone has the right to practise the religion they choose.
Government institutions, like schools, can follow religious practices (like having prayers in the morning) but this must be done fairly and people cannot be forced to attend them.
A person can also get married under the laws of their religion. But these cannot go against the Bill of Rights. For example, a woman who marries according to customary law does not lose her rights of equality when she gets married.
Everyone has the right to say what they want, including the press and other media.
Limiting this right
There are certain kinds of speech that are not protected. These are:
Everyone has the right to assemble with other people, hold a demonstration, picket or present petitions. They must do this in a peaceful way and they may not carry weapons.
The Regulation of Gatherings Act (1993) says organisers of a demonstration must give the authorities at least 7 days notice. The organisers must give the names, purpose of the event, the place of the gathering or the route of the march and the numbers of people expected to take part. The police can disperse a crowd, using reasonable force, if they believe there is a danger to people or property.
Everyone has the right to associate with whoever they want, for example, workers joining together and meeting in a trade union.
Everyone has the right and is free to make political choices, such as the right to:
Every adult citizen has the right to free, fair and regular elections. They have the right to:
Your citizenship is protected and cannot be taken away from you.
Everyone has the right to:
Every citizen has the right to:
Every citizen has the right to choose their trade, occupation or profession freely. Laws can be passed to regulate how people practice their trade, occupation or professions.
Everyone has the right to fair labour practices.
Workers have the right to:
Employers have the right to:
Trade unions and employers' organisations have the right to:
The right to strike and lock-out
The right for workers to strike is written in the Constitution. The right for employers to lock out their workers is not included in the Constitution. But, this does not mean that employers do not have the right to lock-out. The Labour Relations Act says that employers have the right to lock-out in certain situations.
Everyone has the right to:
The government must pass laws that:
No one can have their property taken away from them unless this is done according to a law.
Expropriating private property
This means the government takes a person's land away from them. Property can be expropriated by the government if:
If the government takes land from a person they must pay this person for it. This is called compensation.
There are certain things to think about when a landowner and the government are deciding how much compensation to pay for the land. These are:
Section 25 also deals with land reform. It says the government must make laws and take other steps, to help people or communities to get land to live on, and to claim back land, if they lost it after 1913 and they lost it because of an apartheid law. Up to December 1998, in such cases people were able to claim the land back or compensation for the land.
If a person has been living on land which they were not allowed to own because of apartheid laws, they will now be able to own this land or be paid compensation for it. An example of this is people who live on farms as labour tenants. The Extension of Security of Tenure Act has been passed by the government which gives labour tenants certain rights in terms of Section 25.
Everyone has the right to have access to adequate housing. The government must take reasonable steps within its available resources to provide people with housing and access to land.
Limitations on this right
Section 26 says the government must take steps to provide housing 'within its available resources'. This means the government has a duty to provide what it can afford.
In a recent court case, Irene Grootboom took the government to court on grounds that Section 26 of the Constitution says people have a right to have access to housing. The Constitutional Court said there are three parts that make up the government's obligation to provide housing.
The Court ordered the government to take positive steps to meet its obligations under section 26(2) of the Constitution, particularly where people are living in inhumane conditions or crisis situations.
No one can be evicted from their home or have their home demolished, unless a court has heard the person's case and decided that he or she must leave. In this case the court must give a court order.
LAND AND HOUSING: Extension of Security Act; Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
Everyone has the right to have access to:
The government must pass laws and have policies that provide welfare assistance for the people who need it the most.
Limitations on these rights
Section 27 says the goverment must take steps 'within its available resources'. This means the government must only provide what it can afford. But, the section says the government must improve these services over time.
Everyone is allowed to have emergency medical treatment.
A child is anyone who is under the age of 18. Every child has the right:
Whenever a decision is made about a child, the most important thing that must be thought about is what would be in the best interests of the child.
Children's rights if they are detained
A child may only be detained if it is absolutely necessary, and it must be for the shortest possible time. A child has the right to be kept separately from other detained people who are over 18. The child must be treated and kept in conditions that take into account the child's age. A detained child also has all the rights of any other detained person.
Everyone has the right to:
Everyone has the right to be taught at a government school in their own language but only if this is practical and if the government can afford it.
The government must take steps, for example by passing laws, that will help people who want further education.
Every person has the right to use their own language and follow the culture that they choose. A person has the right to enjoy their culture, use their language and form their own cultural associations in civil society. But they cannot do anything that goes against the rights that other people have.
Communities have the right to enjoy a shared culture, practise a shared religion and use their language. But they cannot do anything that goes against the rights that other people have.
Everyone has the right to have access to:
The Promotion of Access to Information Act gives people a right of access to all kinds of government information, providing very limited reasons why officials can refuse to give such information. This Act is a good weapon against corruption and makes the government transparent and accountable.
The Protection of Disclosures Act gives protection to 'whistle-blowers' - people who speak out against corruption, dishonesty or bad administration and who believe at the time that what they are saying is the truth. They are protected from internal disciplinary action, intimidation and harassment if they have 'blown the whistle' on someone or a business.
Section 33 guarantees that administrative action will be reasonable, lawful and procedurally fair. It also makes sure that you have the right to request reasons for administrative actions that negatively affect you. The section says government must pass laws that will:
The Promotion of Administrative Justice Act 2 of 2000 (PAJAP) says that all decisions of every administration at every level of government must be lawful, procedurally fair and reasonable and must follow the rules in the Act. Examples of administrative action are: applying for an ID or birth certificate, applying for a first time home owner’s subsidy, applying for a work or residence permit, applying for refugee or asylum seeker status. The Act applies to all government departments, the police and army and private people who exercise public powers or perform public functions (for example, ESKOM, Telkom and the SABC). A person whose rights have been wrongly affected can ask for reasons to be given in writing to explain the administrative action taken. The Act also provides for review of administrative action by a court or tribunal.
The right to just administrative action therefore protects people against unlawful, unjust and unreasonable decisions from government officials or department.
Lawfulness - When the state has a legal duty to act in a certain way and fails to do so, it is acting unlawfully.
Procedural Fairness - The procedure that the government follows in making an administrative decision must be fair. If there is a set of established rules that the government must follow in coming to the decision then these must be properly followed otherwise the decision can be challenged. However, the common law rule – audi alteram partem rule - is one rule that the government must always follow in making a decision. This rule says that a person whose rights are or may be affected by an administrative decision must be allowed to state his or her concerns before the decision is made.
Reasonableness - Whether an administrative action is reasonable or not depends on the circumstances surrounding the decision, i.e. the environmental considerations against which the decision was taken.
The type of questions that a court will ask to test whether the decision was reasonable or not are:
What can you expect from the administration?
When you apply for something (for example, a social grant) or when the adminsitratino decides to request something from you, you can expect to be:
What can you do?
If you think that the administrative decision taken against you might be wrong, you can:
You must be given reasons within 90 days of the administrator receiving the request. You can ask for the reasons to be given in writing.
If there is no internal appeal procedure, or if you have used the procedure and are still not satisfied, you can ask a court to review the decision. The must be done:
Taking a matter of review is expensive. Cheaper ways of finding assistance include:
Everyone has the right to have any legal problem or case decided by a court or an independent body.
If a person is arrested, they have the following rights:
If a person is detained (kept in jail or a police cell), either while they are waiting for their trial, or after they have been sentenced, they have the right to:
A person accused of committing a crime must be given a fair trial. This includes the right to:
If the state gets evidence against a person by going against one of their rights, this evidence will not be allowed in court.
The rights in the Bill of Rights can be limited if this is reasonable and justifiable in an open and democratic society that is based on human dignity, equality and freedom.
These are the factors that a person or court must taken into account if a right is to be limited:
It may be necessary for a government to declare a state of emergency to deal with a major problem facing the country. During a state of emergency the Bill of Rights is usually affected.
The government can only call a state of emergency when:
The state of emergency and any laws passed as a result of the state of emergency can only last for 21 days, unless the National Assembly extends this. At least two-thirds (66%) of the members of the National Assembly must agree to extend this. They can extend it for 3 months at a time.
There are certain rights that cannot be limited at all, even during a state of emergency. Some of these are:
The following people can take a case to court, if they believe that a right has been threatened or infringed:
When the courts are deciding a case on the Bill of Rights, they must promote the values of an open and democratic society based on freedom and equality. They must look at international laws (such as the Universal Declaration on Human Rights) and at the way courts in other countries have decided similar cases.
Government works at national, provincial and local levels.
All spheres of government must:
This chapter looks at:
Parliament is also called the national legislature. Parliament makes laws for the country. These laws must not conflict with the Constitution and all citizens must follow them.
Parliament has 2 houses:
The National Assembly
How is the National Assembly made up?
The National Assembly consists of between 350 and 400 Members of Parliament.
Members of the National Assembly are elected according to the system of proportional representation. This means people vote for the party and not for a person.
Who can be a member of the National Assembly?
To be a member of the National Assembly a person must be:
Permanent delegates to the National Council of Provinces or members of a provincial legislature or municipal council cannot be members of the National Assembly.
If a member of the National Assembly joins another party then he or she will have to leave the National Assembly. Another person from the party that the person has left will take over the seat.
How does the National Assembly make decisions?
The National Assembly makes decisions by voting. If the decision is about a new law (a bill), more than half of the members of the National Assembly must be present before there can be a vote. If the decision is about anything else, at least one third of all the members must be present. The President is not allowed to vote in the National Assembly.
The NCOP represents provincial and local government interests in Parliament and in the Executive. It works with the National Assembly to make and pass new laws and to change old laws.
How is the NCOP made up?
The NCOP has 90 members. Each Province sends 10 delegates. The 10 delegates are:
The NCOP elects a Chairperson and two Deputies.
The National Assembly can pass laws on any matter, including a matter in the functional areas listed in Schedule 4. But it cannot pass laws on a matter in the functional areas listed in Schedule 5, unless it becomes necessary for reasons such as maintaining national security.
A bill is a draft law that has not been passed by Parliament. 'Passed' means approved. An act is a law that has been passed by Parliament.
A bill can be introduced in the National Assembly. A Cabinet member or Deputy Minister, a parliamentary committee, or a member of the National Assembly can introduce a bill to Parliament. The National Council of Provinces (NCOP) can introduce a bill if it is about something that falls under the powers of the provinces.
A bill that is passed in the National Assembly must be referred to the NCOP. A bill passed in the NCOP must be referred to the National Assembly.
These are the general rules about how a bill becomes an act:
If the NCOP approves the bill, it refers the bill to the National Assembly to be passed.
If the bill is about something that only the National Assembly can make law on:
If the matter is one that provinces can make law on:
The NCOP can approve the bill, suggest changes or reject the bill.
To approve the bill, each province has one vote and at least five of the nine provinces must vote in favour of the bill.
If the NCOP suggests changes or rejects the bill and the National Assembly doesn't agree, the NCOP can refer the bill to a mediation committee to resolve any differences.
The national executive is the body which puts the laws written by Parliament into action. The executive cannot make new laws. The national executive is called the Cabinet. The Cabinet consists of the President, the Deputy President and ministers.
The President is the head of state, head of the Cabinet and Commander-in-chief of the Defence Force.
The President is elected by the National Assembly from among its members.
The Cabinet consists of the President, the Deputy President, and all the ministers, for example, the Minister of Education, the Minister of Health, and so on. Each minister has a government department that he or she is in charge of.
The President selects and appoints the Deputy President and the ministers in the Cabinet. The President can also appoint Deputy Ministers to assist members of the Cabinet. The President can dismiss any of these people he or she has appointed.
The Deputy President and the ministers are all accountable to the President and to Parliament. The executive has to follow the policies of the government. For example, the Minister of Education and his or her department must carry out all the laws that Parliament makes about education and must carry out the policies of the government on education. The different departments can refer bills to Parliament to have them made into laws.
There are 9 provinces:
Each province has its own provincial government. This is made up of a provincial legislature and a provincial executive.
The provincial legislatures write laws called ordinances for their provinces. Only people living in the province and people visiting it will have to follow these laws. The kinds of laws provincial legislatures are allowed to pass are discussed under Powers of the provinces below.
Members of provincial legislatures are elected during the national general elections which take place every 5 years. There will be between 30 and 80 members in each provincial legislature.
The provincial executives are made up of the Premier and the Executive Council of that province. The Executive Council consists of the Premier and not more than 10 others appointed by the Premier.
Provincial governments have certain powers to make decisions for their provinces. Provinces can make their own constitutions and their own laws, but these must follow the national Constitution.
Provincial legislatures can pass laws on any matter in the functional areas listed in Schedules 4 and 5 of the Constitution.
National and provincial government share powers to make laws about some issues, like health, welfare and education. National government is responsible for setting national standards on these issues, so laws written by provinces must follow national standard-setting legislation.
Local governments make decisions and laws for their own municipal areas. Municipal councils carry out the executive and legislative functions of local government. Local governments make by-laws, but these must not go against the Constitution or any act of Parliament or any provincial ordinance.
Municipal councils are elected every 5 years in local elections. People who can vote must live in the area covered by the local government or own property in the area, and they must be registered as a voter in the area.
Powers of local government
Local governments have the right to administer the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5, and any other matter referred to them by national or provincial laws.
The Constitution says the courts are independent. This means that the national executive and Parliament cannot interfere in what the courts do. Everyone, including the government must follow the decisions of the courts.
The courts are:
The Constitutional Court is made up of a President, a Deputy President and nine other judges. The judges can only be judges in this court for up to 9 years. The Constitutional Court is the highest court to hear cases about the Constitution. All other courts must follow the decisions of the Constitutional Court. For example, the Constitutional Court says the death penalty is not allowed because it goes against people's right to life, so no other court can sentence anyone to death.
What cases can go to this court?
There are certain cases that only the Constitutional Court can make decisions about. Some of these cases are:
Any court can hear a case about the Constitution, including cases about abuses of rights. Courts can do the following:
The Supreme Court of Appeal and the High Courts can make an order about how unconstitutional a law is. But they can only provide 'temporary relief' until the case goes to the Constitutional Court. Only the Constitutional Court can confirm that it is unconstitutional and therefore invalid.
Who can take a case to the Constitutional Court?
Anyone can take a case directly to the Constituitonal Court. But it is difficult for a person who is not a lawyer to do this because of the legal questions involved. So, it would be better to get a lawyer to help take a case to Court.
Taking a case to the Constitutional Court
Anyone who wants to bring a case to the Constitutional Court must usually start in a High Court. In certain cases the state will provide Legal Aid. A High Court will hear the case and it has the power to make a decision. The person can usually appeal against a decision of the High Court. The appeal will be heard in the Constitutional Court.
Proceedings in the Constitutional Court
The Constitution says that at least 8 judges must hear any case that goes to the Constitutional Court. Decisions of the Court are reached by a majority vote of the judges hearing a case.
The Constitutional Court works with written arguments presented by both parties to a dispute. In other words, each party writes down its argument and submits this to the Court. In Court the judges listen to the arguments of each party but they do not hear evidence or question witnesses. They make their decisions based on the written arguments.
The Constitutional Court does not decide directly whether an accused person is guilty or whether damages should be awarded. The ordinary courts will decide this. The Constitutional Court has to decide on the meaning of the Constitution in relation to a dispute. The Court has to interpret the relevant section in the Constitution and see how it applies to the case.
Sessions of the Constitutional Court are open to the public and press.
The Supreme Court of Appeal
The Supreme Court of Appeal has a Chief Justice, a Deputy Chief Justice and other judges. This court is the highest court of appeal in all cases, except cases about the Constitution. It decides on appeals from lower courts and decisions of this court must be followed by all lower courts.
Each province has a High Court. Some provinces may also have 'branches' called local divisions.
If a person is unhappy about a decision of a High Court he or she can appeal to:
Each area in the country has its own magistrate's court. These courts deal with less serious criminal and civil courts. If a person is unhappy with the decision of a magistrate he or she can appeal to a High Court of that province.
How judges are chosen
The President consults the Judicial Services Commission and leaders of parties in the National Assembly. The President then appoints the President and Deputy President of the Constitutional Court, and the Chief Justice. The Judicial Services Commission is made up of the following people:
The Constitution says there will be 7 government institutions to protect people from abuse by the government. They are referred to as the protection mechanisms. It is their job to make sure that the government does its work properly.
These institutions are independent and report to Parliament at least once a year. They are:
The Land Claims Commission has been set up to protect people's land rights under Section 25 of the Bill of Rights.
Public adminstration refers to people who work for the government, also called the public service. This includes the police, army and people who get a salary from the government, including all the government departments such as the Department of Education.
The public service
The public service must put the policies of the government into practice. People who work in the public service will get a pension. Employees of the public service cannot be treated better or worse than others just because they support a political party.
The Public Administration Commission
This is an independent body. It is made up of one representative from each province and it must account to Parliament. Its job is to monitor, evaluate and oversee the organisation and administration of the public service. For example, it investigates grievances of employees in the public service, it ensures that public officials follow correct procedures, and so on.
The security services will consist of one defence force, a police service and an intelligence service. No other army apart from the South African army will be allowed. National security is controlled by parliament and the national executive.
The security services must follow the law and the Constitution and any international documents signed by South Africa. They are there to protect the people and the country. They are not allowed to act for or against a political party.
The Constitution recognises traditional leaders and indigenous or customary law. It says the courts can apply customary law if it is appropriate in a case. But, customary laws cannot go against the Constitution. For example, a customary law that goes against the Bill of Rights will not be acceptable in a court.
The Constitution establishes a National Council of Traditional Leaders and Provincial Councils of Traditional Leaders. These councils allow traditional leaders to play an advisory role on matters relating to traditional leaders and customary law in national and provincial governments.
The National Revenue Fund
The Constitution sets up a National Revenue Fund. All money raised by the national government must go into this Fund, for example taxes, fines and donations. Parliament and provincial governments get their money from this Fund.
The Financial and Fiscal Commission
This Commission is an independent body, that is subject only to the Constitution and the law. It must not be biased in its work. It can advise and make recommendations to any level of government about how to spend their money. It can also give advice about how much money should go to provincial and local governments. It must follow all laws and the Constitution.
How taxes are budgeted
The government gets taxes and levies from people who work (income tax), from companies and from VAT (the tax that people pay on goods that they buy). This money goes into the National Revenue Fund.
The Minister of Finance and the Department of Finance prepare the budget for the country. The national budget says how the money in the National Revenue Fund will be allocated.
The Finance and Fiscal Commission advises the government on how much money should be allocated to the provincial and local governments.
The budgets are debated in Parliament. Parliament can approve or reject how the money will be allocated.
The money that has been budgeted for the different departments, such as housing, education, environment, is given to these departments.
International agreements only become law in South Africa once they are made law by an act of Parliament and they are published in the Government Gazette.
Concurrent functional areas of national and provincial legislatures
The National Assembly and provincial legislatures can pass laws on any matter, including a matter in the functional areas listed in Schedule 4.
The following are local government functions. The national government and the provincial governments have the legislative and executive authority to see that municipalities perform these functions.
Functional areas that belong only to the provinces
The following are local government functions. The provincial governments have the legislative and executive authority to see that municipalities perform these functions.
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