South Africa’s Political System

The Republic of South Africa (RSA) is a parliamentary representative republic. The following section describes the constitutional theory of the major institutions of government and the Constitution itself.

The Parliament

The Parliament of South Africa is a bicameral legislature, consisting of the National Assembly and National Council of Provinces (NCOP). The Parliament sits in Cape Town.

Parliament Buildings of South Africa, Cape Town

The National Assembly, by far the most important house, is made up of 400 directly-elected members who serve a five-year term. According to Article 50 of the Constitution, the National Assembly may be dissolved by the President before the end of its term if a majority of its members have voted to dissolve and it has been three years since the last election. The Acting President may dissolve the National Assembly if there is no sitting President and the National Assembly has failed to elect a new President within 30 days after the vacancy occurred. The National Assembly has never been dissolved before the end of its term.

The National Assembly is elected by closed-list proportional representation. Theoretically, 200 seats are filled from regional (provincial) lists while the remaining half is filled from national lists. However, parties choose whether they wish to submit both regional lists and a national list or only regional lists. In any case, these lists may not have more candidates than there are seats in the National Assembly.

For voters, voting is simple: they are given a ballot, which lists all the parties (with a picture of their logo) and they vote for the party list of their choice. The allocation is more complicated and takes place in two stages. In the first stage, the seats in each province are apportioned according to the largest remainder method. In each region, a quota of votes per seat is determined by dividing the total number of votes cast in the region by the number of regional seats, plus one (the Electoral Commission of South Africa determines the number of seats allocated to each province before the election). The result plus one, disregarding fractions, becomes the quota of votes per seat for the region. To determine how many seats each party will receive in the region, its total number of votes is divided by the quota of votes per seat. This will produce a whole number, which is the number of seats initially allocated to the party, and a surplus. Once this calculation is performed, the sum of allocated seats is obtained. If this total is smaller than the number of regional seats, unallocated seats are awarded to the parties according to the descending order of their remainders. The seat distributions from all provinces are aggregated at the national level, to obtain the number of regional list seats allocated to each party.

The second stage begins with the proportional distribution of all 400 seats in the National Assembly. A quota of votes per seat is determined by dividing the total number of votes cast across the nation by the number of seats in the National Assembly, plus one. The result plus one, disregarding fractions, becomes the quota of votes per seat. To determine the number of seats each party will receive, its total number of votes is divided by the quota of votes per seat. This will produce a whole number, which is the number of seats initially allocated to the party, and a surplus. Once this calculation is performed for all parties, the sum of allocated seats is obtained. If this total is smaller than the number of seats in the National Assembly, unallocated seats are awarded to the parties according to the descending order of their remainders, up to a maximum of five seats. Any remaining seats are awarded to the parties following the descending order of their average number of votes per allocated seats.

The regional list seats are then subtracted from the total number of seats allocated to that party’s list, and the remaining seats are filled by the candidates on the national list in the order determined before the election. In the event a party does not present a national list, the seats allocated to it at the national level are filled from its regional lists.

The Electoral Commission of South Africa (IEC) is a chapter nine independent state institution responsible for management of all elections, declaring the results of such elections and compilation and maintenance of a voters’ roll. The IEC’s members are appointed by the President on the recommendation of the National Assembly, which in turn must recommend persons nominated by a committee of the Assembly and approved by a majority of MPs.

Registration and voting is voluntary. All South African citizens over the age of 16 with a valid identity document may register to vote, although only registered voters above the age of 18 are eligible to vote. All registered voters may be elected to the National Assembly, except anyone appointed or in the service of the state, members of other legislative bodies, ‘unrehabilitated insolvents’, ‘anyone declared to be of unsound mind by a court of the Republic’ or anyone convicted of an offence and sentenced to more than 12 months imprisonment. Starting this year, South African citizens living abroad will be allowed to vote.

Section 42.3 of the Constitution defines the National Assembly’s powers and responsibilities as follows:

The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.

When voting on amendments or a bill (unless otherwise specified in the Constitution), a majority of members must be present and the vote is carried with a majority of votes cast.

The leader of the largest opposition party in the Assembly is recognized by the Constitution and legislation as Leader of the Opposition.

Under the proportional representation system, MPs automatically lose their seats when they cease to be a member of the party that nominated them. This has not always been the case: the Tenth Amendment (2003) allowed for members to cross the floor to another party (and retain their seats) during a scheduled 15-day window in the second and fourth year of the Parliament’s term. However, members could only cross the floor if a tenth of his/her caucus did likewise – a clause which effectively barred MPs from crossing the floor from a large party (such as the ruling party which had a huge majority) but allowed MPs from minor parties to cross the floor very easily. There were three floor-crossing windows: in 2003, 2005 and 2007.

Floor-crossing was an extremely contentious issue, with commentators arguing in doing so, politicians were ‘reallocating’ votes and disrespecting the will of voters, who voted for a party list rather than individual MPs. Floor crossing was repealed by the Fourteenth and Fifteenth Amendments in 2009.

The National Council of Provinces, or NCOP, is South Africa’s upper house. The NCOP is made up of 90 members, with each of South Africa’s nine provinces sending a single delegation made up of ten members.

Six of the ten delegates are ‘permanent delegates’ elected by the provincial legislatures, proportionally in accordance to the strength of the parties represented in the provincial legislature, according to a formula detailed in Part B of Schedule 3 of the Constitution. Permanent delegates serve for the duration of the provincial legislature. The other four delegates are ‘special delegates’ – the provincial Premier, and three other special delegates elected by the provincial legislature, again proportionally to each party’s strength. The special delegates rotate based on the matter being discussed by the NCOP.

Section 42.4 of the Constitution defines the NCOP’s powers and responsibilities as follows:

The National Council of Provinces represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this mainly by participating in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces.

Except where the Constitution provides otherwise, the NCOP’s members vote as delegations, with each province having one vote and the vote is carried with five provinces voting in favour. The Mandating Procedures of Provinces Act, 2008 states that delegations must vote in accordance with a mandate approved by the provincial legislature it represents. On ordinary bills not affecting the provinces (Section 75, see immediately below), the NCOP votes individually, each delegate having one vote.

Lawmaking process: the constitutional theory

Diagram of the South African lawmaking process under Sections 75 and 76 of the Constitution (source: Parliament of South Africa)

The National Assembly has full legislative powers on most matters. Under Section 73 of the Constitution, any bill may be introduced in the National Assembly – either by individual members, committee, Deputy Ministers and Ministers, although money bills or bills dealing with the appropriation of revenue to provincial/local governments may only be introduced by the responsible Minister. Individual members of the NCOP may only introduce bills relating to Section 76.3 (see below).

In practice, most legislation before Parliament is introduced by a minister. For example, of the 116 most recent bills before Parliament, two were introduced by individual members and three by committees.

The NCOP’s role, as mentioned above, is limited to matters dealing with the provinces. On ordinary bills not affecting the provinces (Section 75), the bill is referred to the NCOP which approves it, approves it with amendments or rejects it. However, the National Assembly reconsiders the bill in cases of amendments of rejection, and it can pass the bill again with a regular majority (majority of members in attendance, majority of votes cast) either with or without amendments.

Amending Chapter 1 of the Constitution (founding provisions, definition of RSA as a democratic constitutional republic), the Bill of Rights (Chapter 2) and any amendments relating to the NCOP, provincial boundaries, powers, functions or institutions or a provision that deals specifically with a provincial matter must be passed by both the National Assembly and NCOP with a supermajority. Amendments to Chapter 1 would requires a three-fourths majority in the National Assembly and the support of six out of nine provinces in the NCOP, the other amendments would require a two-thirds majority in the National Assembly and a 6/9 in the NCOP. In these cases, the approval of both houses is mandatory.

The NCOP also has more powers on ordinary bills affecting provinces (Section 76). There are three sorts of Section 76 bills, defined in subsections 3, 4 and 5 of said section of the Constitution. Subsection 3 bills, which is the only kind of legislation which may originate in the NCOP, includes bills falling under functional areas listed in Schedule 4 (concurrent national and provincial powers) and five sections of the constitution. Subsection 4 bills includes Chapter 13 (Finance) provisions affecting the financial interests of the provinces, and passing – under constitutionally-defined circumstances – legislation on Schedule 5 (exclusive provincial powers) functional areas. A subsection 5 bill would be an amendment to Section 42.6, which sets Cape Town as the seat of Parliament.

Subsection 3 bills introduced in the NCOP (Section 76.2) are referred to the National Assembly, which passes it, passes it with amendments or rejects it. The NCOP may pass a bill amended by the National Assembly; in cases of disagreements (Assembly rejection, NCOP rejection of Assembly amendments) the matter is sent to a Mediation Committee made up of nine members of the National Assembly (with the ‘representation of parties in substantially the same proportion that the parties are represented in the Assembly’) and one delegate from each NCOP provincial delegation. The Mediation Committee may pass the NCOP’s bill, the Assembly’s amended bill or another version; in the first two cases, the other house must approve it (or it lapses) and in the latter case, both houses must adopt the Mediation Committee’s version.

Subsection 3, 4 and 5 bills introduced in the National Assembly are referred to the NCOP and the procedure is the same as above (Section 76.1). However, in this case, the National Assembly has the power to override NCOP opposition. If the Mediation Committee is unable to agree on anything within 30 days, the bill lapses but the National Assembly may pass its version with a two-thirds majority. If the NCOP rejects the Mediation Committee’s version, the National Assembly may pass the bill with a two-thirds majority; the National Assembly may also pass, with a two-thirds majority, its original bill if it rejects the Mediation Committee’s version.

All bills passed by Parliament require presidential assent. If the President has reservations about the constitutionality of the bill, he refers it back to the National Assembly for reconsideration (the NCOP must participate in the reconsideration of Section 74 constitutional amendments or Section 76 bills, or on procedural matters relating to the NCOP). If, after reconsideration, a bill fully accommodates the President’s reservations, the President must sign it or refer it to the Constitutional Court for a decision on its constitutionality. The President must sign all bills which the Constitutional Court has found to be constitutional.

One third of the members of the National Assembly may ask the Constitutional Court for a decision on bills (or parts thereof) within 30 days of presidential assent.

The President and the Cabinet

Union Buildings, seat of the executive and presidency of South Africa, in Pretoria

The President is the head of state and government, constitutionally responsible to “uphold, defend and respect the Constitution as the supreme law of the Republic” and to promote “the unity of the nation and that which will advance the Republic.”

The President is elected by the National Assembly at its first sitting or when a vacancy arises (to be filled within 30 days). The President may not serve more than two terms, although the period between a vacancy (when applicable) and the regular election of the President is not regarded as a term. Section 89 provides for the removal of the President from office, with the support of two-thirds of the members of the National Assembly, only on the grounds of ‘a serious violation of the Constitution or the law’, ‘serious misconduct’ and ‘inability to perform the functions of office’. However, according to Section 102, the National Assembly may pass, with a regular majority, a motion of no confidence in the President. If carried, the entire cabinet and the President must resign.

The President is responsible for assenting to and signing bills; referring bills to the National Assembly for reconsideration; referring bills to the Constitutional Court; summoning any house or Parliament to an extraordinary sitting; make any appointments as required by the Constitution; appointing commissions of inquiry; calling a national referendum; pardoning or reprieving offenders and remitting any fines, penalties or forfeitures; conferring honours; and diplomatic matters (receiving and recognizing foreign diplomats, appointing ambassadors and other diplomatic representatives). The President exercises the executive authority together with the cabinet by implementing national legislation unless otherwise specified; developing and implementing national policy; co-ordinating the functions of state departments and administrations; preparing and initiating legislation; and “performing any other executive function provided for in the Constitution or in national legislation.”

The cabinet, made up of the President (head of cabinet), a Deputy President and Ministers, is appointed by the President. No more than two Ministers may be selected from outside the National Assembly, and the Deputy President must be a member of the National Assembly. Members of cabinet are accountable collectively and individually to Parliament.

The President may appoint Deputy Ministers, of which no more than two may be selected from outside the National Assembly, to to assist the members of the cabinet. In Canada, Deputy Ministers are the senior civil servants in their department, but in South Africa, the Deputy Minister is a politician. An appropriate equivalent in other countries may be a Junior Minister, Ministers of State (in Canada, although they sit in cabinet) or Secretaries of State (in France, Belgium, Portugal, Spain and Lusophone Africa).

The National Assembly may pass a motion of no confidence in cabinet excluding the President, forcing the President to reconstitute the cabinet.

The Judiciary

The independent judiciary is made up of the Constitutional Court, Supreme Court of Appeal, the High Court, the Magistrates’ Courts and other courts established by Acts of Parliament.

The Constitutional Court, composed of Chief Justice, the Deputy Chief Justice and nine other judges, is the highest court of the Republic and may decide only constitutional matters, and issues connected with decisions on constitutional matters. According to the Constitution, only the Constitutional Court may decide disputes between organs of state (nationally or provincially), decide on the constitutionality of any parliamentary or provincial bill if the President or Premier (or National Assembly or provincial legislature) request a decision, decide on the constitutionality of constitutional amendments, decide that Parliament or the President has failed to fulfil a constitutional obligation and certify a provincial constitution.

The Supreme Court of Appeal is the highest appeal court except in constitutional matters, holding exercises final jurisdiction in non-constitutional cases. The High Court, currently divided into seven provincial divisions (with two new ones set to be created), is a superior court of law with each division having general jurisdiction over its geographical area. The High Court usually hear serious criminal cases and civil matters involving more than 100,000 rand. Magistrates’ Courts are courts of first instance for most criminal cases and civil matters for claims under 100,000 rand. Regional courts group magisterial districts and hear serious cases.

There are also specialist high courts (Electoral Court, Tax Court etc), military courts, small claims courts, equality courts, traditional courts and pilot project community courts. More information is provided here.

The Judicial Service Commission, established in the Constitution to “advise the national government on any matter relating to the judiciary or the administration of justice”, is a body composed of the Chief Justice, the President of the Supreme Court of Appeal, one one Judge President from the High Court, the Minister of Justice, two advocates, two attorneys, one law professor, six members of the National Assembly (including three opposition members), four permanent delegates to the NCOP and four presidential appointees. The Judicial Service Commission is notably responsible for advising the President on the appointment of judges. The Chief Justice of the Constitutional Court is appointed by the President after consulting the Judicial Service Commission and party leaders and the President of the Supreme Court of Appeal is appointed after consulting the Judicial Service Commission. According to the Constitution, “the President must appoint the judges of all other courts on the advice of the Judicial Service Commission.”

Following the Seventeenth Amendment (2013), the Chief Justice is the head of the judiciary. The amendment also allowed the Constitutional Court to hear “any other matter” if it grants leave to appeal “on the grounds that the matter raises an arguable point of law of general public importance”

The Judicial Service Commission may remove a judge from office if it finds “the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct” and the National Assembly calls for that judge to be removed through a resolution backed by two-thirds of members.

The National Prosecuting Authority (NPA) is responsible for instituting criminal proceedings on behalf of the state. It is headed by a National Director of Public Prosecutions, appointed by the President.

Other governmental institutions

Chapter nine institutions are independent institutions created by the Constitution to “strengthen constitutional democracy.” The institutions are the Public Protector, the South African Human Rights Commission (SAHRC), the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission), the Commission for Gender Equality (CGE), the Auditor-General and the Electoral Commission (IEC).

The Public Protector is an ombudsman with the power to investigate, on its own initiative or on the basis of complaints, any level of government, report and take remedial action. The Auditor-General must audit and report on the accounts and financial management of all levels of government and institutions funded by governments or receiving money for a public purpose. The heads of all these institutions are appointed by the President on the basis of nominations by a National Assembly committee and approved by a majority of the members of the whole body (or a three-fifths majority for the Public Protector or the Auditor-General).

The National Assembly may remove the heads of these institutions from office on certain grounds detailed in the Constitution.

Provincial government

South Africa is not a federal state, but significant powers are devolved to the provincial governments. The provinces’ names and boundaries are set out in the Constitution, therefore any change to the name or the boundaries of a province requires a constitutional amendment approved with the appropriate majorities in Parliament.

Provinces of South Africa (source: embassyworld.com)

There are nine provinces: the Eastern Cape (EC), the Free State (FS), Gauteng (GT), KwaZulu-Natal (KZN), Limpopo (LP), Mpumalanga (MP), the Northern Cape (NC), the North West (NW) and the Western Cape (WC).

The structure of provincial governments is set out by the Constitution (Chapter 6), although the Constitution also allows provinces to pass their own constitutions subject to the approval of the Constitutional Court. Only one province, the Western Cape, has passed its own provincial constitution.

The institutional design of provincial government is extremely similar to that of the national government, with one of the main differences being that provincial legislatures are unicameral bodies. The provincial legislatures, which consist of between 30 and 80 members – the exact number of seats, except for the Western Cape, is set by the IEC based on provincial populations, are elected by closed-list proportional representation (largest remainder method). The rules for membership, length of term, circumstances for early dissolutions, quorums for decisions, parliamentary leadership and general powers are broadly similar to that of the National Assembly. The lawmaking process, with the exception being that there are no upper houses, is the same.

Floor-crossing in provincial legislatures were allowed by the Tenth Amendment (2003) and repealed by the Fourteenth and Fifteenth Amendments (2009).

Since there have been no early national or provincial elections, all provincial elections have been held concurrently with national elections.

The provincial Premier is elected by the provincial legislature just like the President is elected by the National Assembly. Provincial cabinets are known as Executive Councils, and provincial ministers are known as Members of the Executive Council (MEC). There must be a minimum of five and a maximum of ten MECs, appointed by the Premier (all from the provincial legislature). Like the President, the Premier assents to and signs bills and has the same right to ask for the bill’s reconsiderations or, following reconsideration, refer the bill to the Constitutional Court. Similarly, the Premier may theoretically be removed from office through the same procedures as the President.

Provincial legislatures have legislative authority any matter over which a province has constitutional or national legislative authority over. The Constitution lists the powers of the provincial governments in Schedule 4 (Functional Areas of Concurrent National and Provincial Legislative Competence) and Schedule 5 (Functional Areas of Exclusive Provincial Legislative Competence). Concurrent powers include, among others, agriculture, environment, health services, housing, public transport, tourism and trade. Exclusive powers include local archives, libraries, museums, provincial planning, provincial cultural matters and provincial roads and traffic.

The provincial executives are responsible for implementing provincial and appropriate national legislation, administering national legislation, developing and implementing provincial policy and preparing and initiating provincial legislation.

Section 44.2 allows the Parliament to intervene in Schedule 5 functional areas (through Section 76.1) when it is necessary to maintain national security, economic unity, essential national standards, to establish minimum standards and to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole. Similarly, the national executive may intervene in provincial administration (for the aforementioned reasons) by issuing a directive to the provincial executive or assuming responsibility for a relevant obligation. It must advise the NCOP of its intervention within 14 days, and the intervention must end if the NCOP disapproves within 180 days or has not approved the intervention by the end of this period.

Section 146 lists the circumstances under which national laws override provincial laws in case of conflicts (or vice-versa).

Provincial constitutions, which must be consistent with the Constitution, may provide for “provincial legislative or executive structures and procedures that differ from those provided for [in the Chapter on provinces]” or “the institution, role, authority and status of a traditional monarch, where applicable.” As noted above, only the Western Cape adopted its own provincial constitution, in 1998. The document largely restates the Constitution’s relevant sections on provincial government and provides for inconsequential cosmetic changes: the provincial legislature is called the Provincial Parliament, the size of the parliament is fixed at 42 members whereas the size of other legislatures is determined by the IEC, the Executive Council is called a Provincial Cabinet and MECs are Provincial Ministers. The Constitutional Court disallowed the Western Cape from electing its provincial legislature using a different electoral system (multi-member geographical constituencies), ruling that different “legislative or executive structures and procedures” did not give provinces the power to vary their electoral systems.

Local government

Chapter 7 of the Constitution lays the theoretical foundations for local government in the RSA. Municipalities have “the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation” (Section 151.3) and the objects of local governments are to provide democratic and accountable government for local communities, to ensure the provision of services to communities in a sustainable manner, to promote social and economic development, to promote a safe and healthy environment and to encourage the involvement of communities and community organisations in the matters of local government.

Municipalities of South Africa as of 2011 (source: Wikipedia)

Municipalities have executive authority over local government matters listed in Parts B of Schedules 4 and 5 of the Constitution. These functional areas include, among others, child care facilities; electricity and gas reticulation; firefighting services; municipal planning; municipal health services; municipal public transport; municipal public works; local amenities; municipal parks and recreation; noise pollution and traffic. Section 229 of the Constitution allows municipalities to impose ‘rates on property and surcharges on fees for services provided by or on behalf of the municipality’ and other taxes and levies if authorized by national legislation.

The Constitution provides for the establishment of three categories of municipalities, which were legislated for by the Local Government Municipal Structures Act (1998) and are established by provincial governments.

The three categories are municipalities, as of 2014, are Metropolitan Municipalities (MM), Local Municipalities (LMs) and District Municipalities (DMs).

Metropolitan Municipalities are single-tier municipalities intended for conurbations, centres of economic activity with strong interdependent social and economic linkages in which ‘integrated development planning is desirable’. In effect, the eight largest cities/metro areas of South Africa are Metropolitan Municipalities: the City of Johannesburg, the City of Cape Town, eThekwini MM (Durban), Ekurhuleni MM (Germiston), City of Tshwane (Pretoria), Nelson Mandela Bay MM (Port Elizabeth), Buffalo City MM (East London) and Mangaung MM (Bloemfontein). MMs exercise all the functions of local government within their respective areas. South African Metropolitan Municipalities are comparable to England’s metropolitan boroughs (or unitary authorities, but South African MMs are only found in conurbations) or Ontario’s single-tier municipalities.

The rest of the country is divided into a two-tiered system with district municipalities and local municipalities. District Municipalities include several Local Municipalities, and both categories share jurisdiction over local government functions in their respective areas. DMs are usually responsible for integrated planning, the bulk supply of utilities and services/amenities serving the area of the DM as a whole.

The DM/LM two-tiered system is comparable to England’s county councils (divided into second-tier district councils) or the regional municipalities and counties in Ontario which are composed of lower-tier municipalities. Since the 2011 local government elections (LGEs), the entire area of the country is covered by either single-tier MMs or the two-tiered DM/LM system. Prior to 2011, some sparsely populated remote areas (national parks, nature reserves) were considered to be District Management Areas (DMA), in which the DM had all the municipal functions and powers.

There are 44 districts and 226 local municipalities.

The Third Amendment to the Constitution allowed for the creation of municipalities which crossed provincial boundaries, this was repealed in the Twelfth Amendment which altered the boundaries of seven of the nine provinces to remove cross-border municipalities.

Seat allocation for metropolitan and local councils (source: IEC)

Each category of municipality has its own municipal council. The municipal councils of metropolitan municipalities and local municipalities are made up, in equal proportion of councillors elected by closed party-list proportional representation in the area of the MM/LM as a whole and councillors elected by FPTP in single-member wards (rounded up in favour of ward councillors if the number of total seats is uneven).

Vacant ward seats are filled through by-elections.

Voters in Metropolitan Municipalities have two votes in LGEs: one vote for ward councillor, and one vote for a party list. For seat calculation purposes, the ward votes and list votes are added together (subtracting votes for independent ward candidates or parties without list candidates) and the quota is calculated using the total valid votes (excluding, as noted above, votes for independent ward candidates or parties without list candidates) and the total number of seats on council (subtracting wards won by independents or parties without lists), plus one. Each party’s total votes is divided by the quota, and the result – ignoring fractions – is the first seat allocation. Any unfilled seats are attributed to parties with the largest remainders. Once the allocation is final, the number of wards won by each respective party is subtracted from its final seat allocation. This last result determines the number of list seats for each party and the final distribution of seats on the council as a whole.

The size of each municipal council varies, although LMs may have no less than 3 seats and no more than 90 seats while MMs may have no more than 270 seats. The City of Johannesburg, the most populated municipality in South Africa, has 260 municipal councillors and 130 wards. Cape Town has 221 seats with 111 wards and eThekwini (Durban) has 205 with 103 wards. In comparison to other municipal councils in the world’s largest cities, South Africa’s municipal councils are huge: the Greater London Assembly has 25 seats for a population almost two times larger than that of Johannesburg, New York City has 51 members on its council, Los Angeles’ city council has only 15 members. Even the city-state of Berlin, whose population is roughly that of Cape Town, has ‘only’ 149 seats in its state legislature.

The Eight Amendment (2002) allowed members of municipal councils to cross the floor and retain their seats, this was repealed by the Fourteenth and Fifteenth Amendments (2009). Therefore, even ward councillors individually elected lose their seats once they are no longer members of the party they were elected under (or, if an independent councillor joins a party after the election).

Electoral wards in Cape Town, 2011-2016 (own map, adapted from Municipal Demarcation Board)

Municipal councils serve five-year terms, although they may be dissolved earlier in special circumstances either by the council itself with a two-thirds majority or by the provincial government under certain strict conditions. Local elections were last held in 2011, and prior to that in 2006 and 2000 (the 1995/1996 municipal elections were transitional, held prior to the final demarcation of new local government entities). Under this cycle, LGEs are held two years after national and provincial elections.

The wards’ boundaries are redistributed prior to each LGE by the Municipal Demarcation Board, an independent body which is also responsible for altering municipal boundaries. As of the last election (2011), there were 4,277 wards in South Africa.

The District Municipalities’ council is made up of appointed councillors from the local municipalities which make up the DM and by members directly elected by voters in the local municipalities through party-list proportional representation. 60% of the seats are appointed members from local municipalities, with each local municipality represented roughly in proportion to their population and the remaining 40% are directly elected by voters. Therefore, voters in local municipalities have three ballots: local municipality ward, local municipality PR and district municipality PR.

The Constitution and Bill of Rights

South Africa’s Constitution, adopted in 1996, is often acclaimed as one of the world’s most progressive constitution – in large part because of its Bill of Rights (Chapter 2).

The Bill of Rights guarantees equality to all individuals before the law, and the right to equal protection and benefit of the law. Section 9.3 states that:

The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

However, the same clause also states that discrimination on the above grounds “is unfair unless it is established that the discrimination is fair.”

The Bill of Rights guarantees the right to human dignity; the right to life; the right to freedom and security of the person; the right to freedom and security of the person; the right to privacy; the right to freedom of conscience, religion, thought, belief and opinion; the right to freedom of expression; the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions; the right to freedom of association; political rights (right to form parties, campaign for a cause, participating in political activities, right to free, fair and regular elections, right to vote for all adult citizens); the right to freedom of movement; the right to choose a trade, occupation or profession freely; the right to fair labour practices (right to strike, freedom to form and join unions, form and join employers organizations, right to engage in collective bargaining); the right to an environment that is not harmful to one’s health or well-being; the right to have the environment protected; the right to property; the right to housing; the right to access healthcare, food and social security; rights for children; the right to basic and further education; the right to use the language and to participate in the cultural life of one’s choice; access to information; the right to just administrative action; the right to access courts; and rights for arrested, detained or accused persons.

The right to property is not absolute, given that the Constitution allows for property to be expropriated, with compensation, “for a public purpose or in the public interest” – and the public interest includes “the nation’s commitment to land reform” and reforms to “bring about equitable access to all South Africa’s natural resources.” Furthermore, the Constitution provides that “a person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled […] either to restitution of that property or to equitable redress.” However, persons or communities whose land tenure is ‘legally insecure’ due to ‘past racially discriminatory laws or practices’ are also entitled to legally secured tenure or redress.

The official languages of South Africa (Section 6.1) are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. The Bill of Rights grants individuals the right to “receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable.”

Similar to other rights documents, such as Canada’s Charter of Rights and Freedoms, certain rights are not absolute and subject to specific limitation clauses (on equality, Section 9, or property). Section 36, similar to Section 1 of the Canadian Charter of Rights and Freedoms, states that “the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” Section 36 provides certain factors that must be taken into account by the courts when determining if a limitation is reasonable and justifiable: the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose and less restrictive means to achieve the purpose. Section 37 delineates non-derogable rights in a state of emergency.

The Constitutional Court has made, in the past, several landmark rulings based on Section 9 (Equality). In Minister of Home Affairs v Fourie (2005), the Constitutional Court unanimously ruled that same-sex couples were entitled to marry, on the basis of Section 9.1 (right to equal protection and benefit of the law) and the ban on discrimination on the basis of sexual orientation (Section 9.3). The Court gave Parliament one year to affect legislative changes to this effect, with the Civil Union Act (2006). South Africa is the only African country with same-sex marriage (or even any kind of recognition of same-sex unions).

In 1998, in Christian Lawyers Association v Minister of Health, a High Court in Gauteng ruled that the Choice on Termination of Pregnancy Act (1996), legalizing abortion on demand, did not violate Section 11 (Right to Life) because foetuses were not persons. Section 12.2 (Freedom and security of the person) of the Bill of Rights protects the right ‘to make decisions concerning reproduction’ and Section 27 (right to health) includes ‘reproductive health care’ in healthcare services. South Africa has one of the most liberal abortion laws in the world, legal on demand up to the thirteenth week and under broadly specified circumstances up to the twentieth week of pregnancy. Only the woman’s informed consent is required; no other person’s consent is legally required, including for girls under the age of 18.

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