Constitution of the Republic of South Africa, 1993/1994-11-25/Chapter 12

by ratified by the Multiparty Negotiating Forum and adopted and amended by the Parliament of South Africa

Chapter 12

Finance

General Financial Affairs

National Revenue Fund

185. (1) There is hereby established a National Revenue Fund, into which shall be paid all revenues, as may be defined by an Act of Parliament, raised or received by the national government, and from which appropriations shall be made by Parliament in accordance with this Constitution or any applicable Act of Parliament, and subject to the charges imposed thereby.

(2) No money shall be withdrawn from the National Revenue Fund, except under appropriation made by an Act of Parliament in accordance with this Constitution: Provided that revenue to which a province is entitled in terms of section 155(2)(a), (b), (c) and (d) shall form a direct charge against the National Revenue Fund to be credited to the respective Provincial Revenue Funds.

[Sub-s. (2) amended by s. 12 of Act No. 13 of 1994.]

Annual budget

186. The Minister responsible for national financial affairs shall in respect of every financial year cause to be laid before the National Assembly an annual budget reflecting the estimates of revenue and expenditure, which shall, inter alia, reflect capital and current expenditure of the government for that year.

Procurement administration

187. (1) The procurement of goods and services for any level of government shall be regulated by an Act of Parliament and provincial laws, which shall make provision for the appointment of independent and impartial tender boards to deal with such procurements.

(2) The tendering system referred to in subsection (1) shall be fair, public and competitive, and tender boards shall on request give reasons for their decisions to interested parties.

(3) No organ of state and no member of any organ of state or any other person shall improperly interfere with the decisions and operations of the tender boards.

(4) All decisions of any tender board shall be recorded.

Guarantees by national government

188. The national government may not guarantee any provincial or local government loan, unless—

(a)

the guarantee complies with the norms and conditions for such a guarantee as set out in an Act of Parliament; and

(b)

the Financial and Fiscal Commission has made a recommendation concerning compliance of the guarantee concerned with such norms and conditions.

Special pensions

189. (1) Provision shall be made by an Act of Parliament for the payment of special pensions by the national government to—

(a)

persons who have made sacrifices or who have served the public interest in the establishment of a democratic constitutional order, including members of any armed or military force not established by or under any law and which is under the authority and control of, or associated with and promotes the objectives of, a political organisation; or

(b)

dependants of such persons.

(2) The Act of Parliament referred to in subsection (1) shall prescribe the qualifications of a beneficiary of a special pension referred to in subsection (1), the conditions for the granting thereof and the manner of the determination of the amount of such pension, taking into account all relevant factors, including, inter alia, any other remuneration or pension received by such beneficiary.

Income tax of elected representatives

190. Without derogating from the Receiver of Revenue’s powers and functions, the Receiver of Revenue shall annually assess the income tax returns of all elected representatives at all levels of government.

Pensions of political office-bearers

190A. (1) There shall be paid out of and as a charge on the pension fund referred to in subsection (2) to a political office-bearer upon his or her retirement as a political office-bearer, or to his or her widow or widower or dependent or any other category of persons as may be determined in the rules of such pension fund upon his or her death, such pension and pension benefits as may be determined in terms of the said rules.

(2) A pension fund shall be established for the purposes of this section after consultation with a committee appointed by Parliament, and such a fund shall be registered in terms of and be subject to the laws governing the registration and control of pension funds in the Republic.

(3) All political office-bearers shall be members of the said pension fund.

(4) Contributions to the said fund by members of the fund shall be made at a rate to be determined in the rules of the fund, and such contributions shall be deducted monthly from the remuneration payable to members as political office-bearers.

(5) Contributions to the said fund by the State shall be made at a rate to be determined by the President, and such contributions shall be paid monthly from the National Revenue Fund and the respective Provincial Revenue Funds, according to whether a member serves at national or provincial level of government.

(6) In this section “political office-bearer” means—

(a)

an Executive Deputy President;

(b)

a Minister or Deputy Minister;

(c)

a member of the National Assembly or the Senate;

(d)

the Premier or a member of the Executive Council of a province;

(e)

a member of a provincial legislature;

(f)

a diplomatic representative of the Republic who is not a member of the public service; or

(g)

any other political office-bearer recognised for purposes of this section by an Act of Parliament.

[S. 190A inserted by s. 13(1) of Act No. 13 of 1994.]

Auditor-General

Establishment and appointment

191. (1) There shall be an Auditor-General for the Republic.

(2) The President shall whenever it becomes necessary appoint as Auditor-General a person—

(a)

nominated by a joint committee of the Houses of Parliament, composed of one member of each party represented in Parliament and willing to participate in the committee; and

(b)

approved by the National Assembly and the Senate by resolution adopted, without debate, by a majority of at least two-thirds of the members present and voting at a joint meeting:

Provided that if any nomination is not approved as required in paragraph (b), the joint committee shall nominate another person.

(3) The Auditor-General shall be a South African citizen who is a fit and proper person to hold such office and who shall be appointed with due regard to his or her specialised knowledge of or experience in auditing, state finances and public administration.

(4) Unless the new constitutional text provides otherwise, the Auditor-General shall be appointed for a period of not less than five years and not more than ten years and shall not thereafter be eligible for re-appointment.

(5) If the Auditor-General is absent or unable to exercise and perform his or her powers and functions, or if the office of Auditor-General is vacant, the highest ranking member of the Auditor-General’s staff shall act as Auditor-General until the vacancy is filled, and shall for that purpose have all the powers and functions of the Auditor-General.

(6) The remuneration and other conditions of service of the Auditor-General shall be as prescribed by or under an Act of Parliament, and such remuneration and the other conditions of service shall not be altered to his or her detriment during his or her term of office.

(7) The Auditor-General shall not perform remunerative work outside his or her official duties.

(8) The Auditor-General shall not hold office in any political party or political organisation.

(9) The Auditor-General may be removed from office by the President, but only on the grounds of misconduct, incapacity or incompetence determined by a joint committee of the Houses of Parliament composed as provided for in subsection (2)(a), and upon receipt of a request for such removal made by Parliament in pursuance of a resolution to that effect adopted at a joint sitting of the National Assembly and the Senate.

(10) An Auditor-General who is the subject of an investigation by a joint committee in terms of subsection (9), may be suspended by the President pending a decision in such investigation.

(11) The Auditor-General may at any time resign, subject to his or her conditions of service, by lodging his or her resignation in writing with the President.

Independence and impartiality

192. (1) The Auditor-General shall be independent and impartial and shall exercise and perform his or her powers and functions subject only to this Constitution and the law.

(2) The Auditor-General and the persons appointed under section 194(1) shall have such immunities and privileges as may be assigned to them by or under an Act of Parliament for the purpose of ensuring the independent and impartial exercise and performance of their powers and functions.

(3) No organ of state and no member or employee of an organ of state nor any other person shall interfere with the Auditor-General or a person appointed under section 194(1) in the exercise or performance of his or her powers or functions.

(4) All organs of state shall accord such assistance as may be reasonably required for the protection of the independence, impartiality, dignity and effectiveness of the Auditor-General in the exercise and performance of his or her powers and functions.

Powers and functions

193. (1) The Auditor-General shall audit and report on all the accounts and financial statements of all the accounting officers at national and provincial level of government, other than that of the office of Auditor-General, and of all other persons in the national and provincial public services entrusted with public assets, trust property and other assets.

(2) The Auditor-General shall audit and report on all the accounts and financial statements of any local government, board, fund, institution, company, corporation or other organisation established or constituted by or under any law and of which the accounts and financial statements are required in terms of a law to be audited by the Auditor-General, and the accounts and financial statements of all persons in the employment of such a body who have been entrusted by it with its assets, or any other assets.

(3) The Auditor-General shall also, at the request of the President or Parliament, conduct performance audits.

(4) The Auditor-General may, whenever he or she considers it to be in the public interest, or upon receipt of a complaint, investigate, audit and report on the accounts and financial statements of any statutory body or any other institution in control of public funds.

(5) No further duties or functions may be imposed upon or assigned to the Auditor-General other than by means of an Act of Parliament.

(6) Whenever the Auditor-General or a person appointed in terms of section 194(1) exercises or performs his or her powers and functions in terms of this Constitution, he or she shall have access to all books, records and other documents and information relating to the accounts and financial statements referred to in this section.

(7) The Auditor-General shall report on the accounts examined by him or her and submit such reports to the authorities designated by an Act of Parliament to receive them, and, unless otherwise provided by an Act of Parliament, such reports or a report by the Auditor-General on any other matter shall be submitted to Parliament within seven days after receipt thereof by such authority.

(8) The Auditor-General shall make public any report referred to in subsection (7) after the expiry of a period of 14 days from the date on which such report was submitted to the authorities concerned.

Staff and expenditure

194. (1) The Auditor-General may appoint, in accordance with a law, such persons as may be necessary for the discharge of the work of the office of the Auditor-General.

(2) The Auditor-General may, subject to such conditions as may be prescribed by or under a law, delegate any of his or her powers to a person referred to in subsection (1), or authorise such a person to perform any function of the Auditor-General.

(3) Expenditure incurred during the exercise and performance of the powers and functions of the Auditor-General in terms of this Constitution or under any other law shall be defrayed from money appropriated by Parliament for such purpose and from fees raised or money obtained in a manner authorised by an Act of Parliament.

South African Reserve Bank

Central Bank

195. The South African Reserve Bank, established and regulated by an Act of Parliament, shall be the central bank of the Republic.

Primary objectives

196. (1) The primary objectives of the South African Reserve Bank shall be to protect the internal and external value of the currency in the interest of balanced and sustainable economic growth in the Republic.

(2) The South African Reserve Bank shall, in the pursuit of its primary objectives referred to in subsection (1), exercise its powers and perform its functions independently, subject only to an Act of Parliament referred to in section 197: Provided that there shall be regular consultation between the South African Reserve Bank and the Minister responsible for national financial matters.

Powers and functions

197. The powers and functions of the South African Reserve Bank shall be those customarily exercised and performed by central banks, which powers and functions shall be determined by an Act of Parliament and shall be exercised or performed subject to such conditions as may be prescribed by or under such Act.

Financial and Fiscal Commission

Establishment

198. There is hereby established a Financial and Fiscal Commission.

Objects and functions

199. (1) The objects and functions of the Commission shall be to apprise itself of all financial and fiscal information relevant to national, provincial and local government, administration and development and, on the basis of such information, to render advice and make recommendations to the relevant legislative authorities in terms of this Constitution regarding the financial and fiscal requirements of the national, provincial and local governments, including—

(a)

financial and fiscal policies;

(b)

equitable financial and fiscal allocations to the national, provincial and local governments from revenue collected at national level;

(c)

taxes, levies, imposts and surcharges that a provincial government intends to levy;

(d)

the raising of loans by a provincial or local government and the financial norms applicable thereto;

(e)

criteria for the allocation of financial and fiscal resources; and

(f)

any other matter assigned to the Commission by this Constitution or any other law.

(2) In performing its functions the Commission shall take into consideration, inter alia, the provisions of section 155(4)(b) and any other provision of this Constitution.

Constitution, expertise and impartiality

200. (1) The Commission shall consist of—

(a)

a chairperson and deputy chairperson, appointed by the President in consultation with the Cabinet;

(b)

a person designated by each of the various Executive Councils of the provinces, who shall be appointed by the President; and

(c)

seven members appointed by the President on the advice of the Cabinet, at least one of whom shall have expertise in local government finance.

(2) The first appointment of members of the Commission shall be effected within 120 days from the date of commencement of this Constitution.

[Sub-s. (2) substituted by s. 14 of Act No. 13 of 1994.]

(3) No person shall be qualified to be appointed to the Commission unless he or she—

(a)

is a South African citizen; and

(b)

is a person who, by reason of his or her training and experience, has expertise in economics, public finance, public administration, taxation, management or accountancy.

(4) (a) Unless the new constitutional text provides otherwise, a member of the Commission may be removed from office only by the President and only on account of misconduct, incapacity or incompetence.

(b) The President shall within 14 days after the removal from office of a member of the Commission, notify Parliament and the provincial legislatures by message of such removal and of the reasons therefor.

(5) Vacancies in the Commission shall be filled in accordance with the relevant provisions of this section under which the former member concerned was appointed.

(6) The chairperson and the deputy chairperson shall be appointed for a period of five years, and the other members of the Commission for a period of two years, but shall be eligible for re-appointment.

(7) A member of the Commission shall perform his or her duties fairly, impartially and independently.

(8) The chairperson and deputy chairperson shall not perform or commit himself or herself to perform remunerative work outside his or her official duties.

(9) A member of the Commission shall not hold office in any political party or political organisation.

(10) It shall be an offence to influence or attempt to influence a member of the Commission to act otherwise than in accordance with the provisions of subsection (7).

(11) The chairperson and deputy chairperson—

(a)

shall be the only full-time members of the Commission;

(b)

shall be the chief executive officer and deputy chief executive officer, respectively, of the Commission.

Meetings of Commission

201. (1) (a) The first meeting of the Commission shall be held within 30 days of its appointment at a time and place to be determined by the chairperson, and subsequent meetings shall be held at a time and place determined by the Commission or, if authorised thereto by the Commission, by the chairperson.

(b) If both the chairperson and deputy chairperson are absent from a meeting, the members present shall elect one from among their number to act as chairperson.

(2) A quorum for a meeting of the Commission shall be not less than one half of all its members.

(3) A decision of two-thirds of the members present shall constitute a decision of the Commission.

(4) All the decisions of the Commission shall be recorded.

Committees

202. (1) The Commission may establish committees from among its number.

(2) Any such committee shall consist of such number of members as the Commission may determine.

(3) The Commission shall designate one of the members of a committee as chairperson thereof, and if any such chairperson is absent from a meeting of the committee the members present shall elect one from among their number to act as chairperson.

(4) (a) The Commission may, subject to such directions as it may issue from time to time—

(i)

delegate any power conferred upon it by or under section 199 to such a committee; and

(ii)

grant authority that a function assigned to it by or under section 199 may be performed by such a committee.

(b) The Commission shall not be divested of a power so delegated or the performance of a function so authorised, and may amend or set aside any decision of a committee.

Co-option of persons by committees

203. (1) A committee may co-opt any person to serve on such committee or to attend a particular meeting thereof in connection with a particular matter dealt with by the committee.

(2) Such a person may take part in the proceedings of the committee in connection with the matter or at the meeting in respect of which he or she has been co-opted, but shall not be entitled to vote.

Remuneration and allowances of members and other persons

204. Members of the Commission and persons referred to in section 203 who are not in the employment of the state, shall be paid, from money appropriated by Parliament for that purpose, such remuneration and allowances as the Minister responsible for national financial affairs may determine.

Appointment of staff

205. (1) The Commission may appoint staff and accept secondment of staff as it may deem necessary in consultation with the Public Service Commission.

(2) Expenditure incidental to the performance of the functions of the Commission in terms of this Constitution or under any other law shall be defrayed from money appropriated by Parliament.

Regulations

206. The President may make regulations regarding—

(a)

procedures in connection with the performance of any function of the Commission; and

(b)

any other matter in connection with the achievement of the objects of the Commission.

Commission on Remuneration of Representatives

Establishment

207. (1) There shall be established by an Act of Parliament a Commission on Remuneration of Representatives.

(2) The Commission shall make recommendations to Parliament, the provincial legislatures and local governments regarding the nature, extent and conditions of the remuneration and allowances of the members of all elected legislative bodies of the national government and of provincial and local governments, including members of the Provincial Houses of Traditional Leaders and the Council of Traditional Leaders.

Composition and functioning

208. (1) The composition, structure, powers, functions and procedures of the Commission and related matters shall be provided for in the Act referred to in section 207.

(2) Reports by the Commission shall be tabled in Parliament: Provided that the Commission shall report to Parliament on its activities at least once every year.