Republic of South Africa Constitution Fifth Amendment Act, 1980

by enacted by the Parliament of South Africa

Act

To amend the Republic of South Africa Constitution Act, 1961, to establish the office of Vice State President; to define the functions of the Vice State President; to provide for an increase in the number of Ministers; to abolish the Senate; to prescribe afresh the composition of the House of Assembly; to establish a President’s Council; and to define its functions; and to provide for matters connected therewith.

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(Afrikaans text signed by the State President.)
(Assented to 1 July.)

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Be it enacted by the State President, the Senate and the House of Assembly of the Republic of South Africa, as follows:―

Amendment of heading to Part III of Act 32 of 1961.

1. The heading to Part III of the Republic of South Africa Constitution Act, 1961 (hereinafter referred to as the principal Act), is hereby amended by the substitution for the words “The State President” of the following words:

“The State President and the Vice State President.”.

Amendment of section 7 of Act 32 of 1961.

2. Section 7 of the principal Act is hereby amended―

(a)

by the substitution for paragraph (a) of subsection (3) of the following paragraph:

“(a)

with due regard to the provisions of this Act to dissolve [the Senate or the House of Assembly or the Senate and the House of Assembly simultaneously] the House of Assembly;”; and

(b)

by the substitution for paragraph (e) of subsection (3) of the following paragraph:

“(e)

with due regard to the provisions of this Act to appoint the times for the holding of sessions of [Parliament] the House of Assembly and to prorogue [Parliament] the House of Assembly;”.

Amendment of section 8 of Act 32 of 1961, as amended by section 1 of Act 9 of 1967 and section 8 of Act 33 of 1974.

3. Section 8 of the principal Act is hereby amended―

(a)		by the substitution for subsection (1) of the following subsection: “(1) The State President shall be elected by an electoral college consisting of the members of [the Senate and] the House of Assembly, at a meeting to be called in accordance with the provisions of this section and presided over by the Chief Justice of South Africa or a judge of appeal designated by him.”; and
(b)		by the substitution for subsection (4) of the following subsection: “(4) No person may be elected or serve as State President unless he is qualified to be nominated or elected and to take his seat as a member of the [Senate] House of Assembly.”.

Amendment of section 10 of Act 32 of 1961.

4. Section 10 of the principal Act is hereby amended―

(a)

by the substitution for paragraph (b) of subsection (1) of the following paragraph:

“(b)

He shall cease to hold office on a resolution passed by the [Senate and by the] House of Assembly [during the same session] declaring him to be removed from office on the ground of misconduct or inability to perform efficiently the duties of his office.”;

(b)

by the substitution for paragraph (a) of subsection (2) of the following paragraph:

“(a)

No resolution shall be taken under paragraph (b) of subsection (1), except after consideration of a report of a [joint] committee of the [Senate and the] House of Assembly appointed in pursuance of a resolution of the House of Assembly [which has been concurred in by the Senate].”; and

(c)

by the substitution for paragraph (c) of subsection (2) of the following paragraph:

“(c)

In connection with any resolution contemplated in paragraph (b) no debate shall be allowed [either in the Senate or] in the House of Assembly.”.

Insertion of section 10A in Act 32 of 1961.

5. The following section is hereby inserted in the principal Act after section 10:

“Vice State President.

10A. (1) There shall be a Vice State President. (2) The provisions of sections 8, 9 and 10 apply mutatis mutandis in respect of the election, qualifications, period of office and removal from office of the Vice State President. (3) The Vice State President shall be the chairman of the President’s Council: Provided that he shall not act as chairman of the said council while he serves as Acting State President.”.

Substitution of section 11 of Act 32 of 1961.

6. The following section is hereby substituted for section 11 of the principal Act:

“Acting State President

11. Whenever the office of State President is vacant or the State President is for any reason unable to perform the duties of his office, the [President of the Senate] Vice State President shall serve as Acting State President, and if the office of [President of the Senate] Vice State President is vacant or the holder of that office is unable to act, the Speaker of the House of Assembly or, if his office is vacant or he is unable to act, a person appointed by the Executive Council shall serve as Acting State President.”.

Substitution of section 12 of Act 32 of 1961, as amended by section 2 of Act 9 of 1967.

7. The following section is hereby substituted for section 12 of the principal Act:

“Oath of office by State President, Vice State President and Acting State President.

12. The State President, the Vice State President and any Acting State President who does not occupy the office of Vice State President shall before assuming office make and subscribe an oath of office in the following form before the Chief Justice of South Africa or a Judge of the Supreme Court of South Africa: In the presence of Almighty God and in full realization of the high calling I assume as State President/Vice State President/Acting State President in the service of my people, I, A.B., do swear to be faithful to the Republic of South Africa and do solemnly and sincerely promise at all times to promote that which will advance it, to oppose all that may harm it and to dedicate myself to the welfare of its inhabitants, to obey, observe, uphold and maintain the Constitution and all other Law of the Republic, to discharge my duties with all my strength and talents to the best of my knowledge and ability and true to the dictates of my conscience, to do justice unto all and to devote myself to the well-being of my people. May the Almighty by His grace guide and sustain me in keeping this oath with honour and dignity. So help me God.”.

Substitution of section 13 of Act 32 of 1961.

8. The following section is hereby substituted for section 13 of the principal Act:

“Protection of dignity and reputation of State President, Vice State President and Acting State President.

13. Any person who commits any act which is calculated to violate the dignity or injure the reputation of the State President, the Vice State President or an Acting State President, shall be guilty of an offence and liable on conviction to a fine not exceeding two thousand rand or imprisonment for a period not exceeding five years.”.

Substitution of section 14 of Act 32 of 1961, as substituted by section 1 of Act 48 of 1974.

9. The following section is hereby substituted for section 14 of the principal Act:

“Salary of State President and Vice State President.

14. (1) There shall be paid to the State President and the Vice State President out of and as a charge on the State Revenue Fund, in addition to any allowances appropriated from time to time by Parliament, and apart from any privileges which [he] they may enjoy, each a salary determined, subject to the provisions of subsection [(3)] (2), by resolution of [the Senate and] the House of Assembly from time to time. [(2) The salary payable to the State President immediately prior to the commencement of this Act, shall be deemed to have been determined under subsection (1).] [(3)] (2) The salary of the State President or the Vice State President shall not be reduced during his term of office.”.

Insertion of section 15A in Act 32 of 1961.

10. The following section is hereby inserted in the principal Act after section 15:

“Pension to be payable to Vice State President and his widow.

15A. The provisions of section 15 (1) and (2) apply mutatis mutandis in respect of a person who occupied the office of Vice State President and his widow.”.

Amendment of section 20 of Act 32 of 1961, as amended by section 2 of Act 9 of 1967 and section 1 of Act 70 of 1980.

11. Section 20 of the principal Act is hereby amended―

(a)		by the substitution for subsection (1) of the following subsection: “(1) The State President may appoint persons not exceeding [eighteen] twenty in number to administer such departments of State of the Republic as the State President may establish.”; and
(b)		by the substitution for subsection (3) of the following subsection: “(3) No Minister shall hold office for a longer period than twelve months unless he is or becomes a member of the [Senate or the] House of Assembly, and a person who was a Minister without being a member of the [Senate or the] House of Assembly shall not again be appointed as a Minister unless he is such a member.”

Amendment of section 21 of Act 32 of 1961, as amended by section 1 of Act 65 of 1962.

12. Section 21 of the principal Act is hereby amended by the substitution for subsection (3) of the following subsection:

“(3) No person appointed under this section shall hold office for a longer period than three months unless he is or becomes a member of the [Senate or the] House of Assembly.”

Substitution of section 24 of Act 32 of 1961.

13. The following section is hereby substituted for section 24 of the principal Act:

“Legislative power.

24. The legislative power of the Republic is vested in the Parliament of the Republic, which consists of the State President and a House of Assembly.”.

Substitution of section 25 of Act 32 of 1961.

14. The following section is hereby substituted for section 25 of the principal Act:

“Sessions of House of Assembly.

25. The State President may appoint such times for holding the sessions of the House of Assembly as he thinks fit, and may also from time to time, by proclamation in the Gazette or otherwise, prorogue the House of Assembly.”.

Substitution of section 26 of Act 32 of 1961.

15. The following section is hereby substituted for section 26 of 20 the principal Act:

“Annual session of House of Assembly.

26. There shall be a session of the House of Assembly at least once in every year, so that a period of 12 months shall not intervene between the last sitting of the House of Assembly in one session and its first sitting in the next session.”.

Repeal of heading before section 28 and of sections 28 to 31 and 33 to 39 of Act 32 of 1961.

16. The heading before section 28, and sections 28, 29, 30, 31, 33, 34, 35, 36, 37, 38 and 39, of the principal Act are hereby repealed.

Amendment of section 40 of Act 32 of 1961, as amended by section 1 of Act 83 of 1965, section 4 of Act 50 of 1968, section 81 of Act 79 of 1973 and Proclamation No. R.249 of 1977.

17. Section 40 of the principal Act is hereby amended―

(a)

by the substitution for subsection (1) of the following subsection:

“(1) The House of Assembly shall be composed of―

“(a)		165 members, each of whom shall be directly elected by the persons entitled to vote at an election of such a member in an electoral division delimited as provided in section 43;
(b)		four members nominated by the State President, of whom one shall be nominated from each province;
(c)		eight members elected by the members contemplated in paragraph (a) according to the principle of proportional representation, each voter having one transferable vote.”; and

(b)

by the insertion after the said subsection (1) of the following subsections:

“(1A) The State President may make regulations in regard to the election of members in terms of subsection (1) (c), including regulations prescribing the method of voting and of transferring and counting votes and the duties of returning officers in connection with such election of members.

(1B) A casual vacancy in the seat of a member nominated or elected in terms of subsection (1) (b) or (c) shall be filled by the nomination or election of a member for the unexpired portion of the period of office of the member in whose stead he is nominated or elected, and in the same manner in which the last-mentioned member was nominated or elected.”.

Deletion of heading preceding section 52 of Act 32 of 1961.

18. The heading “Both Senate and House of Assembly” immediately preceding section 52 of the principal Act is hereby deleted.

Substitution of section 52 of Act 32 of 1961, as amended by section 2 of Act 9 of 1967.

19. The following section is hereby substituted for section 52 of the principal Act:

“Oath.

52. Every [senator and every] member of the House of Assembly shall, before taking his seat, make and subscribe before the State President, or some person authorized by him, an oath in the following form: I, A.B., do swear to be faithful to the Republic of South Africa and solemnly promise to perform my duties as a member of the [Senate] House of Assembly to the best of my ability. So help me God.”.

Substitution of section 53 of Act 32 of 1961.

20. The following section is hereby substituted for section 53 of the principal Act:

“Effect of dissolution of House of Assembly.

53. Notwithstanding any dissolution of [the Senate or] the House of Assembly under this Act, whether by effluxion of time or otherwise―

(a)		every person who at the date of the dissolution is a member of the [body concerned] House of Assembly shall remain a member thereof;
(b)		the [said body] House of Assembly shall remain competent to perform its functions; and
(c)		the State President shall have power to summon [Parliament] the House of Assembly for the dispatch of business,

during the period following such dissolution up to and including the day immediately preceding the polling day for the election held in pursuance of such dissolution, in the same manner in all respects as if the dissolution had not occurred.”.

Substitution of section 54 of Act 32 of 1961, as amended by section 2 of Act 70 of 1980.

21. The following section is hereby substituted for section 54 of the principal Act:

“Vacating of seats by members and powers of Ministers in House of Assembly.

54. (1) A member of the [Senate] President’s Council who is elected or nominated as a member of the House of Assembly or a provincial council shall vacate his seat as a [senator] member of the President’s Council with effect from the date on which he becomes a member of the House of Assembly or such provincial council. (2) A member of the House of Assembly who is [elected or nominated] appointed as a member of the [Senate] President’s Council, shall vacate his seat as a member of the House of Assembly with effect from the date on which he becomes a member of the [Senate] President’s Council. (3) A member of the [Senate or the] House of Assembly who is elected as a member of a provincial council shall cease to be a member of the [Senate or the] House of Assembly with effect from the date upon which he becomes a member of that provincial council. [(4) A Minister who is a member of the Senate or the House of Assembly and a member of the Senate or the House of Assembly holding office as a deputy to any Minister, shall have the right to sit and speak in the Senate and in the House of Assembly, but shall vote only where he is a member.] [(5)] (4) A Minister who is not a member of the [Senate or the] House of Assembly shall have the right to sit and to speak in the [Senate and in the] House of Assembly, but shall not vote [in the Senate or the House of Assembly] therein.”.

Amendment of section 55 of Act 32 of 1961, as amended by section 20 of Act 101 of 1969, section 20 of Act 102 of 1972, section 22 of Act 62 of 1973 and section 1 of Act 99 of 1979.

22. Section 55 of the principal Act is hereby amended by the deletion of the words “Senate or the”, wherever they occur, and of the words “or the Senate and the House of Assembly”.

Substitution of section 56 of Act 32 of 1961.

23. The following section is hereby substituted for section 56 of the principal Act:

“Vacation of seats

56. A [senator or] member of the House of Assembly shall vacate his seat, if he―

(a)		becomes subject to any of the disabilities mentioned in section 55; or
(b)		ceases to be qualified as required by law; or
(c)		fails for a whole ordinary session to attend without the special leave of the [Senate or the] House of Assembly, [as the case may be,] unless his absence is due to his serving, while the Republic is at war, with the South African Defence Force or any other force or service established by or under the Defence Act, 1957 (Act No. 44 of 1957).”.

Amendment of section 57 of Act 32 of 1961.

24. Section 57 of the principal Act is hereby amended by the deletion of the words “senator or” and the words “Senate or the”.

Substitution of section 58 of Act 32 of 1961.

25. The following section is hereby substituted for section 58 of the principal Act:

“Rules of procedure.

58. The House of Assembly may make rules and orders with respect to the order and conduct of its business and proceedings.”.

Repeal of section 60 of Act 32 of 1961, as amended by section 2 of Act 60 of 1976.

26. Section 60 of the principal Act is hereby repealed.

Repeal of section 63 of Act 32 of 1961.

27. Section 63 of the principal Act is hereby repealed.

Amendment of section 64 of Act 32 of 1961.

28. Section 64 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection:

“(2) The State President may return to the [Senate or the] House of Assembly [in whichever it may have originated] any Bill so presented to him and may transmit therewith any amendments which he may recommend, and the [Senate or the] House of Assembly [as the case may be] may deal with the recommendation.”.

Amendment of section 66 of Act 32 of 1961, as amended by section 3 of Act 61 of 1972.

29. Section 66 of the principal Act is hereby amended by the deletion in subsection (3) of the words “to the Senate and”.

Amendment of section 70 of Act 32 of 1961.

30. Section 70 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection:

“(2) Any member of a provincial council who becomes a member of the [Senate] President’s Council or the House of Assembly, shall cease to be a member of such provincial council.”.

Amendment of section 71 of Act 32 of 1961, as amended by section 86 of Act 79 of 1973.

31. Section 71 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection:

“(2) The provisions of section 53 relating to the tenure of office of the members and the functioning of the [Senate or the] House of Assembly upon a dissolution thereof, and to the summoning of [Parliament] the House of Assembly after [the Senate or the House of Assembly] it has been dissolved, shall mutatis mutandis apply with reference to a dissolution and summoning of any provincial council.”.

Amendment of section 76 of Act 32 of 1961, as amended by section 1 of Act 22 of 1963 and section 2 of Act 64 of 1963.

32. Section 76 of the principal Act is hereby amended by the substitution for paragraphs (b) and (c) of subsection (4) of the following paragraphs:

“(b)		A member of the executive committee shall not be disqualified from being elected or nominated as a member of [the Senate] the House of Assembly or the provincial council.
(c)		A member of the executive committee who becomes a member of the [Senate or the] House of Assembly shall cease to be a member of the executive committee with effect from the date on which he becomes a member of the [Senate or the] House of Assembly.”.

Amendment of section 84 of Act 32 of 1961, as amended by section 37 of Act 47 of 1963, section 36 of Act 61 of 1965, section 4 of Act 61 of 1972, section 1 of Act 30 of 1977 and section 60 of Act 63 of 1977.

33. Section 84 of the principal Act is hereby amended―

(a)		by the substitution in paragraph (b) of subsection (1) for the word “Parliament” of the words “the House of Assembly”;
(b)		by the substitution in paragraph (g) of the said subsection for the word “Parliament” of the words “the House of Assembly”; and
(c)		by the deletion of subsection (3).

Insertion of heading and sections 102 to 106 in Act 32 of 1961.

34. The following heading and sections are hereby inserted in the principal Act after section 101:

Part VIIIA.

President’s Council.

Establishment of President’s Council.

102. (1) There shall be a President’s Council consisting, in addition to the Vice State President, of members appointed by the State President.

(2) A member of the President’s Council, excluding the Vice State President, shall hold office for a period of five years.

(3) A casual vacancy in the President’s Council, excluding a vacancy in the office of Vice State President, shall be filled by the appointment of a member for the unexpired portion of the period of office of the member in whose stead he is appointed.

(4)  (a)		The members of the President’s Council, excluding the Vice State President, shall receive such remuneration and allowances as the State President may determine, as well as such other benefits as he may determine by proclamation in the Gazette.
(b)		Such remuneration, allowances or benefits may differ according to the offices held by such members in the council.

(5) The State President shall designate a member of the President’s Council as deputy chairman of the council, who shall serve as chairman thereof whenever the office of Vice State President is vacant or he is for any reason unable to serve as such.

(6) If neither the chairman nor the deputy chairman is able to act as chairman, the members of the President’s Council shall elect one from their number to act as acting chairman.

(7) A deficiency in the number of members of the President’s Council or a committee thereof shall not affect the powers of the said Council or the said committee.

Qualifications of members of President’s Council.

103. A person is not qualified to be a member of the President’s Council if he―

(a)		is not at least 30 years of age;
(b)		is not a member of the White, Coloured, Indian or Chinese population group;
(c)		is not a South African citizen;
(d)		is a member of any legislative body other than a local institution; or
(e)		holds an office of profit under the Republic, as contemplated in section 55.

Rules, procedure and committees.

104. (1) The President’s Council may make rules and orders in connection with the order and conduct of the business and proceedings of the council and a committee thereof, including provisions in regard to a quorum. (2) The State President shall divide the members of the President’s Council into a Constitutional Committee, a Committee for Economic Affairs, a Planning Committee, a Committee for Community Relations and so many other standing committees as he may from time to time deem fit. (3) Any such committee shall consist of such number of members as the State President may from time to time determine, and the State President shall designate one of the members of such a committee as the chairman thereof. (4) A member of the President’s Council may be a member of more than one committee. (5) If a chairman of a committee is for any reason unable to act as chairman, the other members of that committee shall from their number elect one to act as acting chairman.

Dissolution of President’s Council.

105. (1) The State President may by proclamation in the Gazette dissolve the President’s Council within a period of 90 days after a general election of members of the House of Assembly has taken place. (2) On the dissolution of the President’s Council the membership of all the members thereof, excluding the Vice State President, shall terminate.

Functions of President’s Council and its committees.

106. (1) The President’s Council―

(a)		shall at the request of the State President advise him on any matter referred to it by the State President for its advice and may, in its discretion, advise him on any matter (excluding draft legislation) which, in its opinion, is of public interest;
(b)		may, if any legislative body other than a local institution refers any draft legislation to it for its advice, advise such body thereon.

(2) Whenever a matter is referred to the President’s Council for its advice or when it is of opinion that a matter is of public interest, it may refer such matter to a committee contemplated in section 104 (2) for its advice.

(3) The President’s Council shall transmit to the State President any advice received by it in terms of subsection (2) (other than advice in connection with draft legislation referred to in subsection (1) (b)), whether with or without its comments thereon.

(4) The President’s Council or a committee thereof―

(a)		may, for the purposes of the performance of its functions and in its discretion, consult with any person or State institution on any matter and may for those purposes establish consultative committees consisting of members of the said council or such committee, as the case may be, and members of any council or board established by the State President in terms of any other law;
(b)		may in its discretion and for the said purposes, and shall when the State President requests the council that it be done for those purposes, consult with a council consisting of Black South African citizens and established under an Act of Parliament, or with any committee of such a council.

(5) Advice received by the State President in terms of this section shall be laid upon the Table in the House of Assembly within 14 days after receipt thereof if the House of Assembly is in session or within 14 days after the commencement of its next ensuing session if the House of Assembly is not in session.

(6) The chairman of the President’s Council may, for the purposes of a report to such council on any matter, appoint a committee from among the members of the council and may designate any member of such committee as chairman thereof.”.

Amendment of section 117 of Act 32 of 1961, as amended by section 10 of Act 33 of 1974.

35. Section 117 of the principal Act is hereby amended―

(a)

by the substitution for paragraph (a) of subsection (1) of the following paragraph:

“(a)

to any House or the Houses of Parliament, shall be construed as references to the [Senate or the] House of Assembly [or both the Senate and the House of Assembly, as the context may require];”; and

(b)

by the insertion after the said paragraph of the following paragraph:

“(aA)

to Parliament or the Senate or a member thereof or to the Senate and the House of Assembly or to both Houses of Parliament shall, unless inconsistent with the context, be construed as references to the House of Assembly or a member thereof, as the case may be;”.

Deletion of “Arrangement of Sections” in Act 32 of 1961.

36. The principal Act is hereby amended by the deletion of all the words following upon the Schedule.

Short title, commencement and transitional provisions.

37. (1) This Act shall be called the Republic of South Africa Constitution Fifth Amendment Act, 1980, and the provisions thereof, excluding the provisions of sections 1, 5, 6, 7, 8, 9, 10, 11 (a), 17 and 34 and of this section, shall come into operation on the first day of January 1981.

(2) The provisions of the said sections 1, 5, 6, 7, 8, 9, 10, 11 (a), 17 and 34 shall come into operation on a date fixed by the State President by proclamation in the Gazette, and he may so fix different dates in respect of different provisions.

(3) Any person nominated or elected as a member of the House of Assembly in terms of section 40 (1) (b) or (c) of the principal Act, shall hold office with effect from the date of his nomination or election, and from that date such person shall be required to comply with the requirements with which a person is required to comply who accepts a nomination to be elected as a member of the House of Assembly or who has been elected as such, and any consequences resulting from such nomination or election shall be applicable to such person.

(4) A person who has been nominated or elected as a member of the House of Assembly in terms of section 40 (1) (b) or (c) of the principal Act prior to the first dissolution of the House of Assembly after the commencement of the appropriate provision of the said section, shall, subject to the provisions of section 53 of the principal Act, vacate his seat on such dissolution.

(5) A person who prior to 1 January 1981 is appointed as a member of the President’s Council in terms of section 102 (1) of the principal Act while he is a member of the Senate or the House of Assembly or a provincial council, shall cease to be a member of the Senate or the House of Assembly or such provincial council, as the case may be, on the date of such appointment.

(6) The House of Assembly as constituted for the purposes of the principal Act immediately prior to the commencement of any provision of section 17, shall continue to exist, and a person who is then a member of the House of Assembly, shall continue to be a member thereof, until the House of Assembly is dissolved in terms of the principal Act, whether by effluxion of time or otherwise.

(7) The holder of the office of State President or Vice State President on 1 January 1981 shall be deemed to have been elected as such in terms of the provisions of the principal Act as amended by this Act.