PROVISIONS OF THE INTERIM CONSTITUTION THAT ARE STILL IN OPERATION
Adv F S Jenkins / Mr M D Ramurunzi
PARLIAMENTARY LEGAL ADVISERS
INTERIM CONSTITUTION PROVISIONS THAT ARE STILL IN OPERATION |
FUNCTIONAL BASIS FOR EXISTENCE |
WHETHER THE PROVISIONS SHOULD BE REPEALED OR REPEALED AND INCLUDED IN OTHER APPROPRIATE LEGISLATION |
A. Security Services These provisions do not have constitutional status. They do not apply if they are inconsistent with the Constitution, and may be amended or repealed by ordinary legislation passed in accordance with section 75 of the Constitution. |
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1. Section 82(4)(b): Powers and functions of President |
This section gives the President the power to, amongst others, declare a state of national defence and to employ the South African National Defence Force. There is a functional basis for the existence of this provision. |
Our view is that this section should be repealed as it is already contained in sections 18, 54 and 89 of the Defence Act, 2002. |
2. Section 215: Powers and functions of South African Police Service |
This section deals with the powers and functions of the South African Police Service. There is a functional basis for the existence of this section. |
Our view is that this section should be repealed and included in the appropriate legislation; i.e. South African Police Service Act, 1995. |
3. Section 218: Responsibilities of National Commissioner . |
This section lists the responsibilities of the National Commissioner. There is a functional basis for the existence of this section. |
Our view is that this section should be repealed and included in the appropriate legislation, i.e. South African Police Service Act, 1995. |
4. Section 219: Provincial Commissioners. |
This section lists the responsibilities of a Provincial Commissioner. There is a functional basis for the existence of this section. |
Our view is that this section should be repealed and included in the appropriate legislation; i.e. South African Police Service Act, 1995. |
5. Section 224: Establishment of South African National Defence Force. |
This section establishes the South African National Defence Force as the only defence force for the Republic. There is a functional basis for the existence of this section. |
Our view is that this section should be repealed and included in the appropriate legislation; i.e. Defence Act, 2002. |
6. Section 225: Chief of South African National Defence Force and Secretary of Defence. |
This section deals with the appointment of the Chief of the South African National Defence Force and Secretary of Defence. There is a functional basis for its existence. |
Our view is that this section should be repealed. This provision is already contained in sections 7, 13 and 14 of the Defence Act, 2002. |
7. Section 226: Members of the South African Defence Force. |
This section deals with the composition of the South African Defence Force. There is a functional basis for its existence. |
Our view is that this section should be repealed. This provision is already contained in section 11, Chapter 9 and 10 of the Defence Act, 2002. |
8. Section 227: Functions of South African National Defence Force. |
This section sets out the functions of the South African National Defence Force. There is a functional basis for the existence of this section. |
Our view is that this section should be repealed. This provision is already contained in section 18 of the Defence Act, 2002. |
9. Section 228: Accountability of the South African National Defence Force. |
This section deals with the accountability of the Minister of Defence, composition of the Joint Standing Committee on Defence and the powers of the Joint Committee. There is a functional basis for its existence. |
Our view is that this section should be repealed and included in the appropriate legislation; i.e. Defence Act, 2002. |
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B. Public Administration These provisions do not have constitutional status. They do not apply if they are inconsistent with the Constitution, and may be amended or repealed by ordinary legislation passed in accordance with section 75 of the Constitution. |
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10. Section 236: Transitional arrangements: Public Administration. |
This section makes provision for the continual existence of a public service, department of state, administration or security service. There is a functional basis for this section. |
Our view is that this section should be repealed and included in the appropriate legislations, i.e. Public Service Act, 1994, South African Police Services Act, 1995 and the Defence Act, 2002. |
11. Section 237: Rationalisation of public administration. |
This section makes provision for the rationalisation of public administration institutions and military forces. There is a functional basis for this section, at least in so far as public administration institutions are concerned. |
Our view is that this section should be repealed and included in the appropriate legislation, i.e. Public Service Act, 1994 and the Defence Act, 2002.
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12. Section 239: Transitional arrangement: Assets and liabilities. |
This section makes provision for the devolving of the assets and liabilities of the National Defence Force. There is a functional basis for the existence of this section. |
Our view is that this section should be repealed and included in the appropriate legislation, i.e. Defence Act, 2002. |
13. Section 245: Transitional arrangements: Local government. |
This is a transitional provision which deals with local government. There is no longer a functional basis for the existence of this provision. |
Our view is that this section should be repealed |
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C. Schedule 2: System for election of National Assembly and Provincial Legislatures |
This Schedule deals with the election of the National Assembly and provincial legislatures and the filling of vacancies. There is a functional basis for the existence of this Schedule. |
This Schedule had a limited lifespan, which expired before the April 2004 elections. This Schedule should be repealed. The provisions of this Schedule is already contained in Schedule 1A of the Electoral Act, 1998. |
FROM: Legal Services Office
Tel: (021) 403 3663
Fax: (021) 403 3888
DATE: 12 November 2004