JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE; PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE: JOINT MEETING
7 June 2002
CROSSING OF THE FLOOR LEGISLATION: VOTING

Co-chairpersons: Adv J H De Lange (ANC); Mr Y Carrim (ANC)

Documents handed out:
Version as after 6/6 of B16 (Appendix 1)
Further Amendment still to be added to final version (Appendix 2)
Version as after 6/6 of B17
Version as after 6/6 of B42 Loss or Retention of membership of National & Provincial Legislatures Bill
Version as after 6/6 of B22 (Appendix 3)

SUMMARY
The four bills were passed as amended.

The ANC and NNP voted for all four bills.

The DP abstained. It had tried unsuccessfully to have an amendment passed that would allow crossing with a threshhold of 10% of that party’s members or 1% of the entire legislative body - whichever is lower.

The IFP and the ACDP voted against.

[Detailed minutes of this meeting and the meeting of 6/6 here on 10 June 2002]

Appendix 1:
REPUBLIC OF SOUTH AFRICA

CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL

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(Draft)

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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B16 - 2002]

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REPUBLIEK VAN SUID-AFRIKA

WYSIGINGSWETSONTWERP OP DIE GRONDWET VAN DIE REPUBLIEK VAN SUID-AFRIKA

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(Konsep)

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(MINISTER VIR JUSTISIE EN STAATKUNDIGE ONTWIKKELING)

[W16 - 2002]

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GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

_________ Words underlined with a solid line indicate insertions in existing enactments.

___________________________________________________________________________

WHEREAS section 46(1)(d) of the Constitution of the Republic of South Africa, 1996 (the Constitution), requires an electoral system for the National Assembly that results, in general, in proportional representation;

AND WHEREAS section 47(3)(a) of the Constitution provides that a person loses membership of the National Assembly if that person ceases to be eligible on the grounds listed in section 47(1);

AND WHEREAS section 105(1)(d) of the Constitution requires an electoral system for provincial legislatures that results, in general, in proportional representation;

AND WHEREAS section 106(3)(a) of the Constitution provides that a person loses membership of a provincial legislature if that person ceases to be eligible on the grounds listed in section 106(1);

AND WHEREAS item 23A of Schedule 2 to the Constitution of the Republic of South Africa, 1993, provides that an Act of Parliament may, within a reasonable period after the Constitution took effect, be passed in accordance with section 76(1) of the new Constitution to amend that item and item 23 in order to provide for—

* the manner in which it will be possible for a member of a legislature who ceases to be a member of the party which nominated that member, to retain membership of such legislature; and

* any existing party to merge with another party, or any party to subdivide into more than one party, whilst allowing a member of a legislature affected by such changes, to retain membership of such legislature;

AND WHEREAS section 157 of the Constitution requires an electoral system for local government—

* comprising either proportional representation or proportional representation combined with a system of ward representation; and

* ensuring that the total number of members elected from each party reflects the total proportion of the votes recorded for those parties;

AND WHEREAS section 158 provides for certain criteria for eligibility for membership of a Municipal Council;

AND WHEREAS the Local Government: Municipal Structures Act, 1998, provides for an electoral system for local government comprising proportional representation combined with a system of ward representation;

AND WHEREAS no provision has been made in the Constitution in respect of local government for—

* a councillor to retain membership of a Municipal Council where such a councillor ceases to be a member of the party which nominated that councillor; and

* any party to merge with another party, or any party to subdivide into more than one party or any party to subdivide and any one of the subdivisions to merge with another party, whilst allowing a member of a Council affected by such changes, to retain membership of that Council;

AND WHEREAS section 27 of the Local Government: Municipal Structures Act, 1998, provides that a councillor—

* who was elected from a party list and ceases to be a member of that party; or

* who was elected to represent a ward and who was—

(i) nominated by a party as a candidate in the ward election and ceases to be a member of that party; or

(ii) not nominated by a party as a candidate in the ward election and becomes a member of a party,

ceases to be a member of the Municipal Council in question;

AND WHEREAS the need exists for uniformity within the three spheres of government regarding loss or retention of membership of any legislature or Municipal Council in the event of a change of party membership, or mergers or subdivision or subdivision and merger of parties,

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:—

1. Section 157 of the Constitution of the Republic of South Africa, 1996, is hereby amended—

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

"(1) Subject to Schedule 6A, a Municipal Council consists of—

(a) members elected in accordance with subsections [(2), (3), (4) and (5)] (2) and (3); or

(b) if provided for by national legislation—

(i) members appointed by other Municipal Councils to represent those other Councils; or

(ii) both members elected in accordance with paragraph (a) and members appointed in accordance with subparagraph (i) of this paragraph."; and

(b) by the substitution for subsection (3) of the following subsection:

"(3) An electoral system in terms of subsection (2) must [ensure that the total number of members elected from each party reflects the total proportion of the votes recorded for those parties] result, in general, in proportional representation.".

2. The following Schedule is hereby inserted into the Constitution of the Republic of South Africa, 1996:

"Schedule 6A

(a) ceases to be a member of a part'. Which nominated that councillor as a candidate in the ward election: or

(b) was not nominated by any party as a candidate in ward election and becomes a member of a party.

Retention of Council membership in event of change of party membership

2. (1) Subject to item 4, a councillor—

(a) not representing a ward, who is a member of a party represented in that Council (the original party) and who becomes a member of another party (the new party), whether the new party had participated in an election or not, remains a councillor of the Municipal Council concerned; or

(b) who represents a ward in that Council, remains a councillor for that ward, if that councillor—

(i) was nominated by a party (the original party) as a candidate in the ward election and-
(aa) ceases to be a member of the original party and becomes a member of another party (the new party), whether the new party participated in an election or not, or
(bb) ceases to be a member of the original party and does not become a member of another party; or

(ii) was not nominated by a party as a candidate in the ward election and becomes a member of a party, whether that party had participated in an election or not,

(2) The seat held by a councillor referred to in subitem (1)(a) must be regarded as having been allocated to the new party of which that councillor has become a member.

(3) The ward represented by a councillor referred to in subitem (1)(b) must be regarded as having been—

(a) allocated to the party of which that councillor has become a member; or

(b) acquired by that councillor if such councillor has not become a member of another party.

3. (1) Subject to item 4, any political party (the original party) which is represented in a Municipal Council may—

(a) merge with another party, whether the new party had participated in an election or not; or

(b) subdivide into more than one party or subdivide and any one subdivision may merge with another party, whether that party participated in an election or not, if the members of a subdivision leaving the original party represent not less than 10 per cent of the total number of seats held by the original party in respect of that Council.

(2) If a party merges with another party or subdivides into more than one party or subdivides and merges with another party in terms of subitem (1), the councillors concerned remain members of that Municipal Council and the seats held by them must be regarded as having been allocated to the new party with which they have merged with or into which they have subdivided.

4. (1) The provisions of items 2 and 3 shall only apply—

(a) for a period of 15 days from the first to the fifteenth day of September in the second year following the date of an election of all Municipal Councils; and

(b) for a period of 15 days from the first to the fifteenth day of September in the fourth year following the date of an election of all Municipal Councils,

(2) During a period referred to in subitem (1)(a)(i) or (ii)—

(a) a councillor may only once-
(i) change membership of a party,
(ii) become a member of a party; or
(iii) cease to be a member of a party,
by informing an officer designated by the Electoral Commission therof in writing, if that councillor has changed membership of a party or has become a member of a party, by submitting to that officer written confirmation from the party in question that he or she has been accepted as a member of that party; and

(b) a party may only once-
(i) merge with another party;
(ii) subdivide into more than one party; or
(iii) subdivide and any one subdivision may merge with another party,
by informing an officer designated by the Electoral Commission thereof in writing, and by submitting to that officer written confirmation from the party—

(aa) of the names of all councillors involved in such merger or subdivision; and

(bb) that it has accepted such merger; and

(c) no party represented in a Municipal Council may—

(i) suspend or terminate the party membership of a councillor representing that party in that Council; or

(ii) perform any act whatsoever which may cause such a councillor to be disqualified from holding office as such a councillor in that Council,

5. After the expiry of a period referred to in item 4(l)(a). the composition of a Municipal Council. which has been reconstituted as a result of any conduct in terms of item 2 or 3. is maintained until the next election of all Municipal Councils or until the composition of that Municipal Council is reconstituted in accordance with item 2 or 3 or until a by-election is held in that Municipal Council.

(b) Within 30 days of the expiry of a period referred to in item 4(1)(a)(i) or (ii) all the structures and committees of a Municipal Council referred to in item 5, other than the appointments contemplated in paragraph (a), must be reconstituted in accordance with applicable law.

7. (1) During the first 15 days immediately following the date of the commencement of this Schedule—

(a) a councillor who was elected from the party list of a party represented in a Municipal Council (the original party) may become a member of another party (the new party), whether the new party participated in an election or not, whilst remaining a councillor of the Municipal Council concerned and the seat held by that councillor must be regarded as having been allocated to the new party of which that councillor has become a member;

(b) a councillor who was elected to represent a ward in a Municipal Council and who—

(i) was nominated by a party as a candidate in the ward election, may cease to be a member of the original party and become a member of the new party, whether the new party participated in an election or not, or cease to be a member of the original party and not become a member of another party; or

(ii) was not nominated by a party as a candidate in the ward election, may become a member of a party, whether that new party participated in an election or not,

(bb) acquired by that councillor, if such councillor has not become a member of another party; and

(c) any political party which is represented in a Municipal Council may -
(i) merge with another party, whether that party participated in an election or not, whilst the councillors concerned remain members of that Council and the seats held by them must be regarded as having been allocated to the party with which they have merged or into which they have subdivided.

(2) The provisions of items 4(2), 5 and 6 are also applicable in respect of subitem (1), and any reference therein to the period referred to in item 4(1)(a) (i) or (ii) must be construed as a reference to the period referred to in subitem (1).

8. Vacancies in a Municipal Council must be filled in terms of national legislation.".

Amendment of Schedule
9. This Schedule may be amended by an Act of Parliament passed in accordance with section 76(1)."

Short title

3. This Act is called the Constitution of the Republic of South Africa Amendment Act, 2002.

1. A Municipal Council referred to in item 5 which appoints members of another Municipal Council, as contemplated in section 157(1)(b), must within 15 days of the expiry of a period referred to in item 4(1)(a)(i) or (ii) apply against the procedure provided for in national registration for appointing such members to represent the appointing Council.
2. Within 30 days of the expiry of a period referred to in item 4(1)(a)(i) or (ii) all the structures and committees of -

1. a Category A and B municipality referred to in item 5 must be reconstituted in accordance with applicable law; and
2. a Category C municipality referred to in item 5 must be reconstituted in accordance with applicable law after all the appointments contemplated in paragraph (a) have been made in respect of that Category C municipality.

1. That the following Note be inserted on page 2 to precede the heading "BILL":

Words in bold type in square brackets indicate omissions from existing enactments.

_______ Words underlined with a solid line indicate insertions in existing enactments

LONG TITLE

1. That the Long Title be rejected.

NEW LONG TITLE

1. That the following be a new Long Title:

To amend the Local Government: Municipal Structures Act, 1998, in order to enable a member of a municipal council to become a member of another party whilst retaining membership of that council; 1:0 enable an existing party to merge with another party, or to subdivide into more than one party, or to subdivide and any one of the subdivisions to merge with another party, whilst allowing a member of a council affected by such changes to retain membership of that council; to provide for the convening of meetings after the composition of a municipal council has changed as a result of the provisions of Schedule 6A to the Constitution; to provide for the reconstitution of metropolitan subcouncils; to provide for special measures for the application of Schedule 6A to the Constitution; to further regulate the submission of lists of candidates; and to provide for matters connected therewith.

PREAMBLE

1. On page 2, in the nineteenth line, after "one party" to add the following:

, whilst allowing a member of a legislature affected by such changes, to retain membership of such legislature

2. On page 2, in the twentieth line, to omit the expression section 158A of the Constitution" and to substitute the expression "Schedule 6A to the Constitution".

3. On page 2, in the 26th line, after one party to add the following:

or to subdivide and any one of the subdivisions to merge with another party, whilst allowing a member of a council affected by such changes to retain membership of that council

4. On page 2, from the 27th line, to omit the words from "AND WHEREAS" up to the word parties" in the 29th line, and to substitute the following:

AND WHEREAS the need exists for uniformity within the three spheres of government regarding loss or retention of membership of any legislature or municipal council in the event of a change of party membership, or mergers or subdivision or subdivision and merger of parties,

CLAUSE 1

1. That the Clause be rejected.

NEW CLAUSES

1. That the following be new clauses:

1. Section 26 of the Local Government: Municipal Structures Act, 1998 (hereinafter referred to as the Structures Act) is hereby amended by the substitution in subsection (1) for paragraph (b) of the following paragraph:

is appointed as a representative of a local council to a district council for a period ending when the next local council is declared elected, except that where such a person is replaced as a result of the. provisions of item 6(a) of Schedule 6A to the Constitution the newly appointed representative is appointed for the remainder of the replaced representative's term.".

2. Section 27 of the Structures Act is hereby amended by the deletion of paragraphs (c) and (f).

3. Section 29 of the Structures Act is hereby amended by the addition of the following subsection:

4. Section 62 of the Structures Act is hereby amended by the insertion in subsection (1) after paragraph (c) of the following paragraph:

"(cA) determines a mechanism that complies with Part 2 of Schedule 4 for the appointment of councillors in terms of section 63(2)(b)(ii);".

5. The following section is hereby substituted for section 63 of the Structures Act:

(a) the councillors representing the wards included in the subcouncil area' and

(b) an additional number of councillors [determined by the metro council so that the combined total of paragraph (a) and this paragraph is substantially in the same proportion to the total number of councillors in the council as the number of registered voters in the area of the subcouncil is in proportion to the total number of registered voters in the municipality allocated in terms of Part 1 of Schedule 4, except that where

(i) metropolitan subcouncils are establish

(ii) the areas of existing metropolitan subcouncils are changed; or (iii) the number of existing metropolitan subcouncils are changed, after the composition of a metro council has changed as a result of the provisions of item 2, 3 or 7 of Schedule 6A to the Constitution, the additional number of councillors is determined by the metro council so that the seats held by councillors referred to in subsection (2)(a) are as far as possible equally distributed amongst all the metropolitan subcouncils.

(1A) Where metropolitan subcouncils have been estabished before the commencement of the Local Government: Municipal Structures Amendment Act, 2002, subsection (1)(b) continues to apply as if it was not amended by

(a) the first election of all municipal councils after such commencement; or

(b) the areas or the number of existing metropolitan subcouncils are changed as provided for in subsection (1)(b)(ii) or(iii),

whichever occurs first.

(2) The councillors referred to in subsection (1)(b) must-

(a) consist of councillors elected to the metro council from party lists in accordance with Part 3 of Schedule 1; and

(b) be appointed to the metropolitan subcouncil - (i) in accordance with Part 1 of Schedule 4. or

(ii) where the composition of the metro council in question has changed as a result of the provisions of item 2, 3 or 7 of Schedule 6A to the Constitution in accordance with the mechanism referred to in sect or 62(1)(cA).

(3) Item 3 of the Code of Conduct for Councillors set out in Schedule 1 to the Local Government: Municipal Systems Act, 2000, does not apply to the speaker, executive mayor, a member of the mayoral committee or a member of the executive committee, as the case may be in respect of meetings of a metropolitan subcouncil of which such an office bearer is a member.".

6. The following section is hereby substituted for section 66 of the Structures

Act:

66. (1) The section 63(1)(b) members of a metropolitan subcouncil are

[elected] appointed for a term ending, subject to subsection (2) and section 67, when the next metro council is declared elected.

(2) Where a section 63(1)(b) member of a metropolitan subcouncil is replaced as a result of the provisions of item 6(b) of Schedule 6A to the Constitution, the newly appointed member is, subject to section 67, appointed for the remainder of the replaced member's term.".

7. The following sections are hereby inserted after section 93 of the Structures

Act:

(a) the number of seats allocated to each party represented in that council;

(b) the name of, and party represented by each councillor in the proportionally elected component of that council; and

(c) the wards and the names of and if applicable the party affiliation of, ward representatives in that council.".

8. The following item is hereby substituted for item 10 of Schedule 1 to the Structures Act:

10. (1) A list of candidates may be submitted only by a party.

(2) A party that has gained representation in a municipality as a result of the provisions of item 2, 3 or 7 of Schedule 6A to the Constitution,. may submit a list of candidates within seven days after the expiry of a period. referred to in item 4(1)(a)(i) or (ii) of schedule 6A to the Constitution.".

9. The following item is hereby substituted for item 4 of Schedule 2 to the Structures Act:

4. (1) A list of candidates may be submitted only by a party.

10. The following Schedule is hereby substitute for Schedule 4 to the Structures Act:

1. (1) The seats in the section 63(1)(b) component of a metropolitan subcouncil are allocated to each party in accordance with the following formula (fractions to be disregarded) -

A X C

B

Where -
A represents the total number of valid votes cast for each party vote in the area of the metropolitan subcouncil

B represents the total number of valid votes cast for each party vote in the area of the metro council; and

C represents the total number of seats allocated to each metro council in accordance with Part 3 of Schedule 1

(2) If all the seats held by councillors elected to the metro council from party lists in accordance with Part 3 of Schedule 1 have not been allocated in terms of subitem (1), the remaining number of seats are allocated to the parties represented in the metro council in accordance with the following formula:

A - B=C

Where -
A represents the total number of seats allocated to a party in the metro council in accordance with Part 3 of Schedule 1;

B represents the total number of seats allocated to a party in terms of subitem (1); and

C represents a positive number.

(3) (a) The number of seats allocated to a party in terms of subitem (2) are distributed amongst the metropolitan subcouncils in sequence of the highest fractions obtained by that party for the respective subcouncils during the calculations in terms of subitem (1).

(b) If the fraction for two or more subcouncils is equal, and the number of seats still to be distributed are less than the number of subcouncils to which the equal fractions apply, the party must elect to which of those subcouncils such seats are to be distributed.

2. The seats in the section 63(1)(b) component of a metropolitan subcouncil must be allocated to parties represented in the metro council in a manner that will allow parties and interests reflected in the metro council to be fairly represented in the metropolitan subcouncil in a manner consistent with democracy, taking into account the parties and interests reflected in the section 63(1)(a) component of that metropolitan subcouncil.

3. Each party represented in a metro council must designate from among the councillors not representing wards, its representatives to each metropolitan subcouncil in the municipality with regard to which seats were allocated to it in accordance with Part 1 or the principles set out in item 2.

3. No councillor may serve on more than one metropolitan subcouncil.

5. Parties must fill vacancies as they occur.".

11. The Table of Contents of the Structures Act 5 hereby amended -

(a) by the substitution for the reference to Schedule 4 of the following reference:

5. Vacancies"; and

(b) by the insertion after the reference to section 93 of the following references"

"93A. Special measures for the application of item 6 of Schedule 6A to the Constitution

93B. Publication of notice by Electoral Commission".

12. (1) A party which has not been registered in terms of any law applicable

to the registration of political parties will be regarded as a party for purposes of item 7 of Schedule 6A to the Constitution, but such a party must apply for registration as a party in accordance with applicable law within the period referred to In item 7 of Schedule 6A to the Constitution. If the party is not registered accordingly within three months after the expiry of such a period, it is regarded as having ceased to exist as a party, and the seats in question must be allocated to the remaining parties, with the necessary changes, as if such seat5 were forfeited seats in terms of applicable law.

(2) For the purposes of items 2 and 3 of Schedule 6A to the Constitution, party" means a party duly registered as a political party in accordance with applicable law, including a party so registered during a period referred to in item 4(1)(a)(i) or (ii) of Schedule 6A to the Constitution.

13. Despite section 14(2), a metro council may determine the mechanism referred to in section 62(1)(cA) of the Local Government: Municipal Structures Act, 1998, by way of resolution until a period of 30 days following the period referred to in item 7 of Schedule 6A to the Constitution, has expired.

14. (1) This Act is called the Local Government: Municipal Structures Amendment Act, 2002, and with the exception of section 4, comes into operation or the date that the Constitution of the Republic of South Africa Amendment Act, 2002 comes into operation.

(2) Section 4 comes into operation after a period of 30 days following the period of 15 days referred to in item 7 of Schedule 6A to the Constitution, has expired.

CLAUSE 2

1. That the Clause be rejected.