Constitution of the Western Cape, 1997/Chapter 4

by enacted by the Western Cape Provincial Parliament

Chapter 4

Executive

Executive authority

35.

(1)

The executive authority of Western Cape is vested in the Premier.

(2)

The Premier exercises the executive authority, together with the other Provincial Ministers, by—

(a)

implementing provincial legislation;

(b)

implementing, to the extent that the Western Cape has the administrative capacity to assume effective responsibility, all national legislation within the functional areas listed in Schedule 4 or 5 of the national Constitution except where the national Constitution or an Act of Parliament provides otherwise;

(c)

implementing national legislation outside the functional areas listed in Schedules 4 and 5 of the national Constitution, the administration of which has been assigned to the Provincial Cabinet in terms of an Act of Parliament;

(d)

developing and implementing provincial policy;

(e)

co-ordinating the functions of the provincial administration and its departments;

(f)

preparing and initiating provincial legislation; and

(g)

performing any other function assigned to the Provincial Cabinet in terms of the national Constitution or an Act of Parliament.

(3)

The provincial executive must act in accordance with the national Constitution and this Constitution.

Assignment of functions

36.

A Provincial Minister may assign any power or function that is to be exercised or performed in terms of an Act of Parliament, or a provincial Act, to a Municipal Council. An assignment—

(a)

must be in terms of an agreement between the relevant Provincial Minister and the Municipal Council;

(b)

must be consistent with the Act in terms of which the relevant power or function is exercised or performed; and

(c)

takes effect upon proclamation by the Premier in the official gazette of the Province.

Powers and functions of Premier

37.

(1)

The Premier has the powers and functions entrusted to that office by the national Constitution, this Constitution and any legislation.

(2)

The Premier is responsible for—

(a)

assenting to and signing Bills;

(b)

referring a Bill back to the Provincial Parliament for reconsideration of the Bill’s constitutionality;

(c)

referring a Bill to the Constitutional Court for a decision on the Bill’s constitutionality;

(d)

summoning the Provincial Parliament to an extraordinary sitting to conduct special or urgent business;

(e)

appointing commissions of inquiry; and

(f)

calling a referendum in the Western Cape in accordance with national legislation.

Election of Premier

38.

(1)

The Provincial Parliament must elect a Premier from among its members at its first sitting after its election, or when necessary to fill a vacancy.

(2)

A Judge designated by the President of the Constitutional Court must preside over the election of the Premier. The procedure set out in Schedule 2 of this Constitution applies to the election of the Premier.

(3)

An election to fill a vacancy in the office of the Premier must be held at a time and on a date determined by the President of the Constitutional Court, but not later than 30 days after the vacancy occurs.

Assumption of office by Premier

39.

The Premier-elect must assume office within five days of being elected, by swearing or affirming faithfulness to the Republic and the Western Cape and obedience to the national Constitution and this Constitution, in accordance with Schedule 1.

Term of office and removal of Premier

40.

(1)

The Premier’s term of office begins when the Premier assumes office and ends when a vacancy occurs or when the person next elected Premier assumes office.

(2)

No person may hold office as Premier for more than two terms, but when a person is elected to fill a vacancy in the office of Premier, the period between that election and the next election of a Premier is not regarded as a term.

(3)

The Provincial Parliament, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the Premier from office only on the grounds of—

(a)

a serious violation of the national Constitution, this Constitution or the law;

(b)

serious misconduct; or

(c)

inability to perform the functions of office.

(4)

Anyone who has been removed from the office of Premier in terms of subsection (3)(a) or (b) may not receive any benefits of that office, and may not serve in any public office.

Acting Premier

41.

(1)

When the Premier is absent or otherwise unable to fulfil the duties of the office of Premier, or during a vacancy in the office of Premier, an office-bearer in the order below acts as the Premier—

(a)

a Provincial Minister designated by the Premier;

(b)

a Provincial Minister designated by the other Provincial Ministers; or

(c)

the Speaker, until the Provincial Parliament designates one of its other members.

(2)

An Acting Premier has the responsibilities, powers and functions of the Premier.

(3)

Before assuming the responsibilities, powers and functions of the Premier, the Acting Premier must swear or affirm faithfulness to the Republic and the Western Cape and obedience to the national Constitution and this Constitution, in accordance with Schedule 1.

Provincial Cabinet

42.

(1)

The Provincial Cabinet consists of the Premier, as head of the Provincial Cabinet, and no fewer than five and no more than ten Provincial Ministers appointed by the Premier from among the members of the Provincial Parliament.

(2)

The Premier appoints the Provincial Ministers, assigns their powers and functions, and may dismiss them.

Accountability and responsibilities

43.

(1)

The Provincial Ministers are responsible for the functions of the executive assigned to them by the Premier.

(2)

Provincial Ministers are accountable collectively and individually to the Provincial Parliament for how they exercise their powers and carry out their functions.

(3)

Provincial Ministers must—

(a)

act in accordance with the national Constitution and this Constitution; and

(b)

provide the Provincial Parliament with full and regular reports concerning matters under their control.

Continuation of Provincial Cabinet after elections

44.

When an election of the Provincial Parliament is held, the Provincial Cabinet and its members remain competent to function until the person elected Premier by the next Provincial Parliament assumes office.

Oath or affirmation

45.

Before Provincial Ministers begin to perform their functions, they must swear or affirm faithfulness to the Republic and the Western Cape and obedience to the national Constitution and this Constitution, in accordance with Schedule 1.

Conduct of members of the Provincial Cabinet

46.

(1)

Members of the Provincial Cabinet must act in accordance with the code of ethics prescribed by national legislation.

(2)

Members of the Provincial Cabinet may not—

(a)

undertake any other paid work;

(b)

act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or

(c)

use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.

Transfer of functions

47.

The Premier by proclamation in the official gazette of the Province may transfer to a member of the Provincial Cabinet—

(a)

the administration of any legislation entrusted to another member; or

(b)

any power or function entrusted by legislation to another member.

Temporary assignment of functions

48.

The Premier may temporarily assign to a member of the Provincial Cabinet any power or function of another member who is absent from office or is unable to exercise that power or perform that function.

Supervision of local government

49.

(1)

When a municipality in the Western Cape cannot or does not fulfil an executive obligation in terms of legislation, the Provincial Cabinet may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including—

(a)

issuing a directive to the Municipal Council, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations; and

(b)

assuming responsibility for the relevant obligation in that municipality to the extent necessary—

(i)

to maintain essential national standards or meet established minimum standards for the rendering of a service;

(ii)

to prevent that Municipal Council from taking unreasonable action that is prejudicial to the interests of another municipality or to the Western Cape as a whole; or

(iii)

to maintain economic unity.

(2)

If the Provincial Cabinet intervenes in a municipality under subsection (1)(b)—

(a)

the intervention must end unless it is approved by the national Cabinet member responsible for local government affairs within 14 days of the intervention;

(b)

notice of the intervention must be tabled in the Provincial Parliament and in the National Council of Provinces within 14 days of their respective first sittings after the intervention began; and

(c)

the intervention must end unless it is approved by the National Council of Provinces within 30 days of its first sitting after the intervention began.

Executive decisions

50.

(1)

A decision by the Premier must be in writing if it—

(a)

is taken in terms of legislation; or

(b)

has legal consequences.

(2)

A written decision by the Premier must be countersigned by another member of the Provincial Cabinet if that decision concerns a function assigned to that member.

(3)

Proclamations, regulations and other subordinate legislation of the Western Cape must be published in the official gazette of the Province and the Western Cape government must take reasonable steps to make them accessible to the public.

(4)

Provincial legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be tabled in and approved by the Provincial Parliament.

Motions of no confidence

51.

(1)

If the Provincial Parliament, by a vote supported by a majority of all its members, passes a motion of no confidence in the Provincial Cabinet, excluding the Premier, the Premier must reconstitute the Provincial Cabinet.

(2)

If the Provincial Parliament, by a vote supported by a majority of all its members, passes a motion of no confidence in the Premier, the Premier and the other Provincial Ministers must resign.