PARLIAMENT

TO: Presiding Officers

FROM: Legal Services Office

DATE: 12 November 2004


MEMORANDUM

Provisions of the Interim Constitution that are still in operation

1. We refer to the request from the Speaker to compile a narrative report on the above mentioned subject.


2. Item 24' of Schedule 6 to the Constitution keeps sections 82(4)(b), 215, 218(1 219(1), 224 to 228, 236(1), (2), (3), (6), (7)(b) and (8), 237(1) and (2)(a) and 239(4 and (5) of the Interim Constitution in operation. These provisions do not have constitutional status and may be amended or repealed by ordinary legislation passed in accordance with section 75 of the Constitution. Furthermore, they do not apply if they are inconsistent with the Constitution.


3. Similarly, items 26(2) and 11(1) of Schedule 6 keep section 245 and Schedule 2 to the Interim Constitution, respectively, in operation. For the purpose of this memorandum it is not necessary to consider whether these provisions may be amended with section 74, 75 or 76 legislation.


4. Below we discuss these provisions with reference to their functional basis an whether these should be repealed or repealed and included in other appropriate legislation.


5- 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 Our view is that this section should be repealed as it is already contained in sections 201 and 203 of the Constitution, as well as in sections 18, 54 and 89 of the Defence Act, 2002.


6. Section 215: Powers and functions. This section deals with the powers and functions of the South African Police Service (SAPS). 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 Our view is that this section should be repealed and included in the appropriate legislation; i.e. South African Police Service Act, 1995.


7. Section 218: Responsibilities of National Commissioner. This section lists the responsibilities of the National Commissioner of the SAPS. 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 Our view is that this section should be repealed and included in the appropriate legislation: i.e. South African Police Service Act, 1995 (see section 11).


8. Section 219: Provincial Commissioners. This section lists the responsibilities of a Provincial Commissioner of the SAPS. 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 (see section 12).


9. Section 224: Establishment of South African National Defence Force. This section establishes the South African National Defence Force (SANDF) 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 (see section 11).


10.Section 225Chief of South African National Defence Force and Secretary of Defence. This section deals with the appointment of the Chief of the SANDF 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.


11- Section 226: Members of the South African National Defence Force This .section deals with the composition of the SANDF. 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.


12. Section 227: Functions of South African National Defence Force. This section sets out the functions of the SANDF. There is a functional basis for the existence of this section. Our view is that this section should be repealed as this provision is already contained in section 200 of the Constitution and section 18 of the Defence Act, 2002.


13. Section 236: Transitional arrangements: Public administration. This section makes provision for the continual existence 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.


14. 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.


15. Section 239: Transitional arrangement: Assets and liabilities. This section makes provision for the devolving of the assets and liabilities of the South African Defence Force, the defence force of any area forming part of the national territory and certified non-statutory forces upon 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.


16. 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.


17. 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.


18. Attached is a table relating to the above mentioned comments.


Adv F S Jenkins / Mr M D Ramurunzi

PARLIAMENTARY LEGAL ADVISERS

INTERIM CONSTITUTION PROVISIONS THAT ARE STILL IN

FUNCTIONAL BASIS FOR EXISTENCE

WHETHERTHE 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.

   

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 power; 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 the 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 a 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 appointment of the Chief of the South African National Defence Force and Secretary of Defence There is a functional basis for it 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 Africa Defence Force. There is afunctional basis for its existence

Our view is that this should be repealed 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 that this should be repeals is already contain 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

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.

   

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

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

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 Schedule1A of the Electoral Act , 1998