Act
To provide for the dissolution of provincial councils and for the administration of provincial matters by administrators and the other members of executive committees appointed by the State President; and to provide for matters connected therewith.
(Afrikaans text signed by the State President.)
(Assented to 24 June 1986.)
as amended by
Be it enacted by the State President and the Parliament of the Republic of South Africa, as follows:―
1. In this Act, unless the context indicates otherwise―
| (i) | “administrator” means the person appointed as administrator under section 7 (1) (a), acting in consultation with the other members of the executive committee of which he is a member; | |
| (ii) | “Constitution Act” means the Republic of South Africa Constitution Act, 1983 (Act No. 110 of 1983); | |
| (iii) | “province” means a province mentioned in section 7 (1); | |
| (iv) | “self-governing territory” means an area declared under section 26 of the National States Constitution Act, 1971 (Act No. 21 of 1971), to be a self-governing territory within the Republic. |
Chapter I
The Provinces
2. At the commencement of this Act every provincial council established by the Provincial Government Act, 1961 (Act No. 32 of 1961), shall cease to exist, and every person who immediately prior to that commencement was a member of any such council shall cease to be such a member.
3. Any person who immediately prior to the commencement of this Act occupies the office of administrator or member of the executive committee of a province, shall vacate his office at that commencement, unless an administrator and executive committee have then not yet been appointed in terms of section 7, in which event such person shall retain his office and he shall be deemed to have been appointed in terms of the said section until such time as such appointment is made.
4. Any ordinance―
| (a) | made by a provincial council and in force in the province concerned immediately prior to the commencement of this Act; or | |
| (b) | mentioned in section 21 (2) and published after such commencement, |
and any proclamation, notice, regulation or rule in force thereunder shall as from such commencement and publication remain in force in and for the relevant province.
5. (1) The provinces of the Republic as they existed immediately prior to the commencement of this Act shall remain in existence: Provided that the State President may, after consultation with the administrator or administrators concerned, for the purposes of this Act, by proclamation in the Gazette―
| (a) | declare such portion of a province as he may determine, to be a new province; | |
| (b) | divide any province into two or more new provinces, and determine the borders of every such new province; | |
| (c) | combine any two or more provinces into one; | |
| (d) | include in any province any other territory or include any portion of a province in any other province; | |
| (e) | allocate a name and seat to every such province or change the name and seat thereof; and | |
| (f) | provide for transitional arrangements with regard to the disposal of any asset, liability, right or obligation and the legal force of provincial legislation in the new province. |
(2) The State President shall, when acting in terms of subsection (1), take into account―
| (a) | existing provincial and administrative boundaries; | |
| (b) | the community of interests between the inhabitants of the areas concerned; | |
| (c) | the natural and geographical features of such areas; | |
| (d) | the density and composition of the population in such areas; | |
| (e) | the size of such areas; | |
| (f) | cost-effectiveness and efficiency in the rendering of services in such areas; and | |
| (g) | the socio-economic development potential of such areas. |
(3) Before the State President issues a proclamation under subsection (1) he shall cause to be published in the Gazette a draft of the proposed proclamation together with a notice calling upon all interested persons to lodge any objections and representations in writing within a period of 21 days from the date of publication of the notice with the Secretary to Parliament for submission to a standing committee of Parliament contemplated in section 64 of the Constitution Act.
(4) A proclamation contemplated in subsection (1) shall be issued only on the advice of the standing committee contemplated in subsection (3).
6. Subject to the provisions of section 5, the seats of provincial governments shall be―
| For the Cape of Good Hope | Cape Town |
| For Natal | Pietermaritzburg |
| For the Orange Free State | Bloemfontein |
| For the Transvaal | Pretoria. |
Chapter II
Administrators and Executive Committees
7. (1) In respect of every province of the Republic―
| (a) | as it existed immediately prior to the commencement of this Act; and | |
| (b) | which comes into existence after that commencement by virtue of the provisions of section 5, |
the State President shall appoint―
| (i) | an administrator of the province; and | |
| (ii) | such number of other persons as he may determine from time to time, who together with and under the chairmanship of the said administrator shall constitute an executive committee for the province. |
(2) All executive acts relating to the affairs of every such province shall be performed in the name of the administrator of the province, who shall together with the other members of the executive committee of the province constitute the executive authority of the province and carry on the administration of provincial affairs relating to the province.
(3) In the appointment of the administrator and the other members of an executive committee for a province, the State President shall as far as practicable give preference to persons resident in such province.
8. (1) The State President may from time to time appoint from among the members of the executive committee of a province an acting administrator to exercise and to perform the powers and duties of the administrator of the province whenever he is for any reason unable to do so or while the office of administrator is vacant.
(2) The State President may appoint any such acting administrator with retrospective effect.
9. (1) The administrator and every other member of the executive committee of a province shall before assuming his official duties make and subscribe before the judge-president or any other judge of the division of the Supreme Court within the area of jurisdiction of which the seat of the provincial government concerned is situate, an oath in the following form:
I, A.B., do hereby swear to be faithful to the Republic of South Africa, and undertake before God to abide by this allegiance; to hold my office as administrator/member of the executive committee of the province C.D. with honour and dignity; to respect and uphold the Constitution and all other law of the Republic; to be a true and faithful counsellor; not to divulge directly or indirectly any matters brought before the executive committee or entrusted to me to keep secret; and to perform the duties of my office conscientiously and to the best of my ability.
So help me God.
(2) The said administrator and other members of the executive committee may in lieu of the oath mentioned in subsection (1), make and subscribe a solemn affirmation in corresponding form.
10. (1) The salary and allowances (if any) of any administrator, acting administrator and member of an executive committee of any province shall be fixed by the State President.
(2) There shall be no differentiation as regards such salaries and allowances in respect of the various administrators, acting administrators and members of the executive committees of the different provinces.
11. (1) An administrator and the members of an executive committee of a province shall hold office during the State President’s pleasure, but not for longer than five years, and shall be eligible for reappointment.
(2) Any casual vacancy arising in the executive committee of a province shall be filled by the appointment by the State President, in accordance with subsection (1), of a person to hold office.
13. All decisions of an executive committee shall be taken by the administrator concerned.
14. (1) The administrator of a province shall attend to provincial matters, including such matters―
| (a) | as have been or are assigned to the provincial council concerned or the executive committee of the province by or under any Act of Parliament; or | |
| (b) | as are declared by the State President by proclamation in the Gazette to be of a provincial nature or of a regional, local or private nature in the province. |
(2) The administrator of a province may―
| (a) | subject to the provisions of section 16, by proclamation in the Official Gazette concerned―
Provided that such a proclamation shall only be issued after it has been approved by a joint committee of Parliament contemplated in section 64 of the Constitution Act; | |||||||
| (b) | perform any functions on behalf of any department of State; | |||||||
| (c) | recommend to a competent authority the passing of any law which in his opinion is essential or desirable for the province. |
(3) In regard to all matters in respect of which the executive committee of a province has no powers, the administrator shall act on behalf of the State President when required to do so, and in connection with such matters the administrator may act without reference to the other members of the executive committee.
(4) Where any law empowers an administrator or an administrator acting in consultation with the other members of the executive committee concerned to determine any rate, scale, tariff, fee or charge for the purposes of any revenue accruing to, or expenditure from, a provincial revenue fund, such determination shall as from 1 April 1987 be made by the administrator acting in consultation with the Minister of Finance, irrespective of the provisions of any law purporting to exempt the administrator from such requirement regarding consultation with the Minister of Finance.
15. (1) The State President may assign the administration of any provision in any law which entrusts to a Minister referred to in section 20 (b) or (c) of the Constitution Act any power, duty or function, to the administrator of any province―
| (a) | either specifically or by way of a general assignment of the administration of any law or of all laws entrusting powers, duties or functions to the said Minister; and | |
| (b) | either generally or in so far as such provision, law or laws relate to any matter mentioned in such assignment; and | |
| (c) | subject to such amendments, adaptations and modifications as the State President may deem fit. |
(2) The administrator of a province may in writing authorize―
| (a) | any member or members of the executive committee of that province; | |
| (b) | any member or members of such executive committee and the provincial secretary of that province jointly; | |
| (c) | the said provincial secretary; | |
| (d) | any person in the service of the provincial administration concerned, |
to exercise or perform in general or in a particular case or in cases of a particular nature, any power, duty or function conferred or imposed on the administrator by or in terms of this Act or any other Act of Parliament, except the power to issue proclamations or make regulations.
(3) The said administrator may similarly authorize any institution or body contemplated in section 84 (1) (f) of the Provincial Government Act, 1961 (Act No. 32 of 1961), or approved by him, and any such institution or body so authorized may, with the approval of the administrator concerned, further so authorize any person in its employ.
(4) Whenever the administration of a law or a provision of a law referred to in subsection (1) has been assigned to the administrator of a province under the said subsection, the provisions of section 10 (5) and (5A) of the Interpretation Act, 1957 (Act No. 33 of 1957), shall apply mutatis mutandis as if that administrator, the provincial administration concerned, and an officer of that administration, were a Minister of State, the department of State controlled by him, and an officer in the public service, respectively.
16. The administrator of a province―
| (a) | may, if he considers it essential or desirable; and | |
| (b) | shall, before a proclamation referred to in section 14 (2) (a) is issued, |
cause to be published in a newspaper, in order to obtain the views of interested persons regarding any matter within the meaning of the said section, a notice―
| (i) | specifying particulars of the matter concerned, or stating the place where and the period within which such particulars will be available for inspection; and | |
| (ii) | stating that comment relating to the said matter may be lodged with the provincial secretary concerned before a date stated in the notice, which shall be not less than 28 days after the date on which the notice is so published. |
Chapter III
Arrangements for Co-operation
17. (1) The State President may on the recommendation in writing of an administrator and the Chief Minister of a self-governing territory (or the Chief Ministers of two or more self-governing territories) provide by proclamation in the Gazette for the joint or co-ordinated exercise of powers and performance of functions by the provincial executive authority concerned and the government or governments of the self-governing territory or territories concerned.
(2) The State President shall or may in the proclamation contemplated in subsection (1) regulate anything which in terms of any Act of Parliament that provides for the regulation of joint executive action by a provincial executive authority and the government of a self-governing territory shall or may be regulated.
18. The administrator of a province may, with the approval of the State President and after agreement or arrangement with―
| (a) | the government of a foreign state; | |
| (b) | the administrator of any other province; or | |
| (c) | the government of a territory in the Republic for which a legislative assembly has been established under the National States Constitution Act, 1971 (Act No. 21 of 1971), |
in accordance with the said agreement or arrangement, perform in the relevant state, province or territory, as the case may be, any function which he may perform in his province, and for the purpose of the performance of such function that state, province or territory shall be deemed to constitute part of his province.
Chapter IV
General
19. Unless it would in any particular case obviously be inappropriate, having regard to the objects of this Act, as from the commencement of this Act any reference in any law or elsewhere to―
| (a) | the administrator of a province appointed in terms of the Provincial Government Act, 1961 (Act No. 32 of 1961), shall be construed as a reference to an administrator appointed in terms of section 7 of this Act; | |||||||
| (b) | the executive committee of a province or its members, within the meaning of the Provincial Government Act, 1961, shall be construed as a reference to an executive committee or its members appointed in terms of section 7 of this Act; | |||||||
| (c) | the provincial auditor, or the auditor of local government, shall be construed as a reference to the Auditor-General as defined in section 1 of the Exchequer and Audit Act, 1975 (Act No. 66 of 1975); | |||||||
| (d) | a provincial council, in relation to―
| |||||||
| (e) | a provincial revenue fund, shall be construed as a reference to the appropriate account contemplated in section 82 (1) (c) of the Constitution Act. |
20. (1) Any person who―
| (a) | became a member of a provincial council by reason of his having been elected at any election of members of provincial councils held prior to or on 31 July 1982; | |
| (b) | remained such a member until the day immediately preceding the commencement of this Act; and | |
| (c) | subject to the provisions of subsection (4) on the day contemplated in paragraph (b) has insufficient pensionable service, as defined in any ordinance, to entitle him to the payment of pension benefits in terms of such ordinance, |
may, within a period of 90 days after such commencement by written notice to the administrator of the province in which his electoral division is situated, elect to be deemed to have eight years’ pensionable service, as so defined, and shall thereafter be entitled to pension benefits calculated in terms of such ordinance in respect of a period of pensionable service of eight years.
(2) There shall, in respect of the period deemed to form part of the pensionable service of the member by virtue of subsection (1), be paid by the relevant member to the relevant provincial revenue fund an amount calculated at 10 per cent of his pensionable salary immediately prior to the commencement of this Act, multiplied by the number of years and portion of a year which are so deemed to be pensionable service.
(3) Any provision in any law which provides for the payment of a pension or other benefit to the widow of a member of a provincial council shall apply mutatis mutandis to the payment of a pension or other benefit to the widower of a member of a provincial council.
(4) Any period of service which a member of a provincial council has completed as a member of Parliament and in respect of which he has received no Parliamentary pension, may be recognized for the purpose of determining his pension benefits as a member of the provincial council, provided he requests in writing the administrator of the province in which his provincial electoral division is situated, within 90 days after the commencement of this Act, that such period be so recognized.
(5) There shall, in respect of the period recognized in terms of subsection (4) as pensionable service of the member, be paid by the relevant member to the relevant provincial revenue fund, an amount calculated at 10 per cent of his pensionable salary immediately prior to the commencement of this Act, multiplied by the number of years and portion of a year which are so recognized as pensionable service.
(6) The provisions of subsections (3) and (4) shall be deemed to have come into operation on 1 July 1984.
21. (1) The duration of the provincial councils shall be deemed to have been extended to 30 June 1986.
(2) Any ordinance which was passed by a provincial council prior to the commencement of this Act but which at such commencement has not yet been dealt with in terms of sections 89 and 90 of the Provincial Government Act, 1961 (Act No. 32 of 1961), may, notwithstanding the repeal of those sections by this Act, be dealt with in terms of those sections after that commencement as if this Act had not been passed.
| (3) (a) | The assets, rights, debts or liabilities of the provincial revenue funds contemplated in section 88 of the Provincial Government Act, 1961, shall as from 1 April 1987 be vested in the Accounts for Provincial Services as contemplated in section 2 (1) (c) of the Exchequer and Audit Act, 1975 (Act No. 66 of 1975): Provided that, if any moneys are to be set aside or earmarked for particular purposes or are by law to be transferred to a specific account, such moneys shall be utilized only for such purposes or be transferred only to such account, as the case may be. | |
| (b) | Any adjustment in favour of or as a charge against a provincial revenue fund after 1 April 1987, shall be deemed to be an adjustment for the appropriate Account for Provincial Services as contemplated in section 2 (1) (c) of the Exchequer and Audit Act, 1975. | |
| (c) | Notwithstanding the provisions of section 5 (3) of the Provincial Finance and Audit Act, 1972 (Act No. 18 of 1972), the Minister of Finance may, in a form determined by him, submit to Parliament an additional estimate of expenditure for the 1986/87 financial year, which shall be defrayed from the provincial revenue funds of the provinces of the Cape of Good Hope, the Transvaal, the Orange Free State and Natal. | |
| (d) | Notwithstanding the provisions of section 22 of this Act, the Minister of Finance may, in a form determined by him, for the purpose of section 4 (1) of the Exchequer and Audit Act, 1975, as amended by the Schedule to this Act, submit to Parliament a Part Appropriation Bill in which the appropriation of certain amounts of money to the Accounts for Provincial Services is proposed. |
| (4) (a) | The administrator of a province shall, subject to the provisions of this subsection but notwithstanding the provisions of any other law, transfer and appoint any person in the service of the provincial administration of the province in terms of an ordinance, to the Public Service, as from a date determined by him on the recommendation of the Commission for Administration. | |||||||||||||||||||
| (b) | Such persons shall be transferred and appointed on the conditions applicable to the employment of officers and employees in the Public Service, unless the Commission for Administration, notwithstanding the provisions of any other law, recommends otherwise: Provided that―
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| (c) | Any person employed in provincial service in terms of an ordinance the administration of which has been assigned in terms of section 98 (3) of the Constitution Act to a Minister, may be transferred and appointed by that Minister―
and the provisions of paragraphs (a) and (b) shall apply mutatis mutandis to such person. |
22. The laws mentioned in―
| (a) | Part 1 of the Schedule to this Act are hereby amended as set out in that Part: Provided that such amendment of section 82 of the Constitution Act and of Act No. 66 of 1975 shall come into operation on 1 April 1987; | |||||||
| (b) | Part 2 of that Schedule are hereby repealed to the extent indicated in the third column of that Part: Provided that such repeal―
|
23. This Act shall be called the Provincial Government Act, 1986, and shall come into operation on 1 July 1986.
Schedule
Part 1
A. Amendment of provisions of the Republic of South Africa Constitution Act, 1983 (Act No. 110 of 1983), as follows:―
1. Amendment of section 55 by the substitution for paragraph (b) of subsection (2) of the following paragraph:
| “(b) | is appointed to the office of administrator of a province or of member of the executive committee of a province, shall vacate his seat as a member of such House with effect from the date on which he assumes such office.”. |
2. Amendment of section 71 by the substitution for subparagraph (c) of subsection (3) of the following subparagraph:
| “(c) | if he becomes a member of a House or [of a provincial council] is appointed as administrator or member of an executive committee of a province in terms of the Provincial Government Act, 1986;”. |
3. Amendment of section 82―
| (a) | by the substitution for subsection (1) of the following subsection:
“(1) In respect of the State Revenue Fund there shall be―
| ||||
| (b) | by the addition to subsection (1) of the following paragraph:
| ||||
| (c) | by the addition of the following subsection:
“(3) Where a law provides that any revenue mentioned therein shall be paid into a provincial revenue fund or that expenditure so mentioned shall be defrayed from such fund, such revenue shall be paid into and such expenditure shall be defrayed from the appropriate account contemplated in subsection (1) (c).” |
4. Amendment of section 98 by the substitution in subsection (2) for the words “ordinance of a province” of the words “Act of Parliament”.
B. Amendment of the Interpretation Act, 1957 (Act No. 33 of 1957)―
| (a) | by the substitution in section 2 for the definition of “Administrator” of the following definition:
“‘administrator’, with reference to a province, means the person appointed as administrator in terms of section 7 of the Provincial Government Act, 1986, acting in consultation with the other members of the executive committee of which he is a member;”; and | |
| (b) | by the substitution for section 17 of the following section: |
| “List of certain proclamations and notices to be laid before Parliament. | 17. When the State President, [or] a Minister or the administrator of a province is by any law authorized to make rules or regulations for any purpose in such law stated, or when an administrator acts in terms of section 14 (2) (a) of the Provincial Government Act, 1986, notwithstanding the provisions of any law to the contrary, a list of the proclamations, [or] government notices and provincial notices under which such rules, [or] regulations or action were published in the Gazette during the period covered in the list, stating in each case the number, date and title of the proclamation, [or] government notice or provincial notice and the number and date of the Gazette in which it was published, shall be laid upon the Table in the [Senate or in the House of Assembly] House concerned or in Parliament, as the case may be, within fourteen days after the publication of the rules, [or] regulations or action in the Gazette, if Parliament is then in session, or if Parliament is not then in session, within fourteen days after the commencement of its next ensuing session.”. |
C. Amendment of the Exchequer and Audit Act, 1975 (Act No. 66 of 1975), as follows:―
1. Amendment of section 1 by the substitution in subsection (1) for the definition of “revenue” of the following definition:
“revenue” means all moneys received by way of taxes, imposts or duties and all casual and other receipts of the State, whatever the source, which may be appropriated by Parliament or the relevant House of Parliament, according to the circumstances, and includes moneys borrowed in terms of the provisions of this Act, but does not include the amount of any fine not exceeding R50 imposed upon any person by any court of law, in so far as such amount has not been paid, and revenue accruing to the South African Transport Services and the Post Office Fund [and a provincial revenue fund]”;
2. Amendment of section 2 by the insertion in subsection (1) of the following paragraph:
| “(c) | each of the accounts established by section 82 (1) (c) of the Constitution Act, to be called―
|
3. Amendment of section 4―
| (a) | by the substitution in subsection (1) for paragraph (a) of the following paragraph:
| ||||
| (b) | by the substitution in subsection (3) for subparagraph (i) of paragraph (a) of the following subparagraph:
|
4. Insertion of the following section after section 4:
| “Payment of difference between expenditure and revenue. | 4A. There shall annually be paid to the relative accounts referred to in section 2 (1) (c) as a direct charge on the State Revenue Account an amount equal to the difference between the expenditure authorized by a general law and the revenue accruing to such accounts.”. |
5. Amendment of section 15 by the addition to subsection (3) of the following paragraph:
| “(g) | a province mentioned in section 3 (1) of the Provincial Government Act, 1986, the provincial secretary appointed in terms of the Public Service Act, 1984 (Act No. 111 of 1984), for that province.”. |
Part 2