Constitution of the Western Cape

Constitution of the Western Cape, 1997
Citation	Act No. 1 of 1998 (Western Cape)
Territorial extent	Western Cape
Enacted by	Western Cape Provincial Legislature
Date assented to	15 January 1998
Date commenced	16 January 1998
Status: In force

The Constitution of the Western Cape is, subject to the Constitution of South Africa, the highest law regulating the structure and powers of the government of the Western Cape province of South Africa. It was enacted by the Western Cape Provincial Legislature in terms of Chapter 6 of the national constitution, and came into force on 16 January 1998. The Western Cape is the only South African province to have adopted a constitution.

The current nine provinces of South Africa were created by the Interim Constitution, which was drawn up during the negotiations to end apartheid. The Interim Constitution included provisions for a provincial legislature to adopt a provincial constitution by a two-thirds vote; but none were successfully adopted under its terms. (A proposed constitution for KwaZulu-Natal was rejected by the Constitutional Court in 1996.) The final (and current) national constitution includes similar provisions, which allow a provincial legislature to adopt a provincial constitution by the vote of two-thirds of its members.

The process of drawing up a provincial constitution for the Western Cape was initiated in July 1996 by then-Premier Hernus Kriel, while the final national constitution was still under negotiation. The bill to enact the new constitution was passed by the Provincial Legislature on 21 February 1997 and referred to the Constitutional Court, which had to determine whether it was consistent with the national constitution (which had come into effect on 4 February).

The Constitutional Court rejected a number of clauses, but the main objection was a provision that provided for members of the provincial parliament to be elected from multiple-member geographical constituencies, as opposed to the party-list proportional representation prescribed by the national constitution. The national constitution allows provincial constitutions to contain different "legislative or executive structures and procedures", but the court ruled that an electoral system was not a "legislative structure" and that the province did not have the power to vary the electoral system. The court also objected to provisions which placed the responsibility for administering provincial oaths of office on the Judge President of the Western Cape High Court rather than the President of the Constitutional Court; as judges are national officials, the provincial legislature did not have the power to alter their responsibilities.

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