Crossing the Floor legislation: voting

Meeting report

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

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

Documents handed out:
Final version of [B16-2002] (Appendix 1)
Final Version of Local Government: Municipal Structures Amendment Bill [B22-2002] (Appendix 2)
Final Version of [B17-2002] (Appendix 3)
Loss or Retention of Membership of National and Provincial Legislatures Bill [B42-2002] (Appendix 4)
Municipal Structures Amendment Bill Report to Parliament (Appendix 5)

SUMMARY
Justice and Provincial and Local Government Portfolio Committees reviewed the final drafts of the four "crossing the floor" bills in order to polish the bills before voting on them. The Committees made several changes to the bills, but all of the changes were technical in nature and uncontroversial.

The DP attempted to amend the bills to alter the threshold to 10% of the party or not less that 1% of the total number of seats of that legislature, whichever is less, but the Committee rejected this proposal.

After an item by item appraisal, the Committees passed the four bills. The ANC and the NNP voted for the bills, the IFP and the ACDP voted against the bills, and the DP abstained.

MINUTES
Constitution of the Republic of South Africa Amendment Bill [B16-2002]
The committees first reviewed the Constitution of the Republic of South Africa Amendment Bill. At Item 2(1)(b) and Item 3(1)(b) it states that a member can cross the floor only if "10 per cent of the total number of seats held by the original party" crosses. Dr. Delport (DP) requested a vote to amend the Items to read, "10 per cent of the total number of seats held by the original party in respect of that council or not less that 1% of the number of seats on the council, whichever is lower." The DP voted for the amendment and the other parties either voted against it or abstained; therefore, the amendment was overwhelming rejected.

The Committee carried on making minor corrections until it reached Item 6. In that item Chairman de Lange and Chairman Carrim discussed the effects of that item on type A and B Councils versus type C councils. Both agreed that in its current state the item might not allow type C councils the full 30 day period to reconstitute itself if it had made new appointments early than 15 days. They asked Dr. Bouwer to quickly redraft the item. (Refer to Appendix 1) The committee unanimously agreed that Dr. Bouwer's rewrite should solve the problem.

In Item 7, Ms. Camerer (NNP) found a grammatical problem with subitem (1)(c). After a long discussion over whether the wording should read "party" or "parties" on the issue of subdivision, and after initially disagreeing with Ms. Camerer's belief that the wording should include more than one party, Draftsman de Lange finally changed the wording to satisfy Mr. Camerer's challenge.

After making final alterations to the bill, Adv. Schmidt (DP) asked a hypothetical question concerning what happens if A makes his intention to join B known and B agrees to accept A's seat, and then 10% of A's original party does not cross. Chairman de Lange responded that A's seat would be retained by A's original party and that the ramifications of A's attempt to leave the party would be up to the original party. However, Chairman de Lange stated that the time for these sort of questions had passed and he did not want to waste time entertaining hypotheticals when they had bills to finish and vote on. All agreed to move to the next bill.

Constititution of the Republic of South Africa Second Amendment Bill [B17-2002]
On the Constitution of the Republic of South Africa Second Amendment Bill, the Committee only made minor technical changes. The Committee voted on this Bill first. The ANC and the NNP voted for the bill, the IFP and the ACDP voted against the bill, and the DP abstained. The Chair allowed parties an opportunity to make comments after the passage of the bill to elucidate their reasons for voting as they did. Dr. Delport explained that the DP felt very strongly that the 10% threshold did not treat parties equally and that bigger parties were favoured. However, the DP agreed that crossing the floor should be allowed but that a one percent threshold of the total members of the forum was a better test for allowing members to cross. The DP would consider their official position further in caucus and abstained on all 4 bills at this point.

Mr. Smith (IFP) stated his party's opposition to all 4 bills. The IFP felt that the concept of crossing the floor contradicted the proportional system of democracy that the Constitution continued to uphold. If Parliament wanted to allow members to cross the floor, then the entire system should be changed. An Electoral Task Team had been formed to review and address the electoral system, and the IFP believed Parliament should wait until it heard that body's findings before changes like this were made. Furthermore, Mr. Smith implied that the motivation for this legislation was purely political by noting that if the source of the crossing the floor litigation was a truly "democratic principle", as the bill's supporters claim it is, then the threshold for the transitional crossing and future crossings should be the same.

Following these two party statements, the Constitution of the Republic of South Africa Amendment Bill passed along the same party lines that the first bill was passed.

Local Government Municipal Structures Amendment Bill [B22-2002] & Loss or Retention of Membership of National and Provincial Legislatures Bill [B42-2002]
In the Municipal Structures Bill, Chairman de Lange questioned whether item 5 of the Bill created a mechanism that allowed one to override the by-law. Dr. Bouwer's explained that the problem should not arise because it is not one mechanism that would override the by-law but it is two mechanisms that relates only to size or allocation. In this way, the clause will allow for reconstitution, fairness and proportionality, and sub-councils without overriding the by-law.

The remainder of the changes in the bill were technical and without debate. The only further question about the bill concerned the method or allocating councillors elected from party lists to metropolitan sub-councils. Ms. Borman (DP) asked if the formula had been tested by Durban Metro. Chairman Carrim reported that it had been tested and that it worked. Ms. Borman stated that she was still sceptical.

While Mr. Bouwer made a few changes in the Municipal Structures Bill, the Committee discussed the Loss or Retention of Membership of National and Provincial Legislatures Bill (Membership Bill). Once again, Dr. Delport attempted to amend crossing threshold to 1% of the total legislative body threshold, and once again the amendment was rejected.

After checking the cross-referencing of the bill, Dr. Delport brought to the Chair de Lange's attention that the 2^nd and 4^th year sequence of crossing window periods had been calculated wrong. Chair de Lange had thought that September 2002 would fall in the 3^rd year, when in actuality this September will be the 4^th year of the term. Therefore, after this coming transitional crossing, the next crossing period for the National and Provincial governments will be in September 2006. A local crossing period will occur in September 2003.

After making a few cosmetic changes and changing the expiry period for registering a new party from three months to four months, the Committee voted on the bill. The bill passed. Once again the ANC and NNP voted for the bill, ACDP and IFP voted against it, and the DP abstained.

After the voting, Dr. Delport excused himself from the meeting because he had another meeting to attend. However, before he left, he stated that although not everyone agreed with the legislation he felt that the discussions had been politically effective and that the Chair had treated the DP with courtesy. Chairman de Lange thanked Dr. Delport and also Mr. Smith (IFP), who had sat patiently through the many Committee meetings although his party opposed the legislation throughout the process.

The Portfolio Committee on Provincial Government then passed the Municipal Structures Bill. The ANC and NNP voted for the bill, the ACDP voted against, the DP abstained, and the IFP representative on the Committee had left before the voting occurred.

The Portfolio Committee on Justice also passed the ICC and Insolvency Bills unanimously with no further changes.

The meeting was adjourned.

Appendix 1:
PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT (NATIONAL ASSEMBLY)
AMENDMENTS TO CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL

[B16 - 2002]

CLAUSE 1

1. On page 3, in line 8, to omit "section 158A," and to substitute "Schedule 6A".

CLAUSE 2

Clause rejected.

NEW CLAUSE

That the following be a new Clause:

Insertion of Schedule 6A in Act 108 of 1996

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

"Schedule 6A

Loss or retention of membership of Municipal Councils, after a change of party membership, mergers between parties, subdivision of parties and subdivision and merger of parties, and filling of vacancies

Loss or retention of Council membership

 

1. (1) A councillor not representing a ward ceases to be a member of a Municipal Council if that councillor, other than in accordance with item 2, 3 or 7, ceases to be a member of the party which nominated that councillor as a member of that Council.

(2) A councillor representing a ward in a Municipal Council ceases to be a member of that Council if that councillor, other than in accordance with item 2, 3 or 7—

(a) ceases to be a member of a party which nominated that councillor as a candidate in the ward election; or

(b) was not nominated by any party as a candidate in the 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—

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

(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 participated in an election or not,

if the councillor referred to in paragraphs (a) and (b)(i), whether by himself or herself or together with one or more other councillors who, during a period referred to in item 4(1)(a) (i) or (ii) ceased to be members of the original party, represent not less than 10 per cent of the total number of seats held by the original party in that Council.

(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.

 

Retention of Council membership in event of mergers, subdivision and subdivision and merger of parties

 

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 that party 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 which they represent pursuant to any merger, subdivision or subdivision and merger as contemplated in subitem (1).

 

Period of application of items 2 and 3 and further requirements

 

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

(i) 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

(ii) 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,

but do not apply during the year ending on 31 December 2002.

(b) For the purpose of paragraph (a) "year" means a period of 365 days.

(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 thereof in writing, and 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 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,

without the written consent of the councillor concerned.

 

Composition of Council maintained until election or by-election, or reconstitution in terms of Schedule

 

5. After the expiry of a period referred to in item 4(1)(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.

 

Reconstitution by Municipal Councils

 

6. (a) 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 again the procedure provided for in national legislation for appointing such members to represent the appointing 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—

(i) a Category A and a Category B municipality referred to in item 5 must be reconstituted in accordance with applicable law; and

(ii) 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.

Transitional arrangement in respect of retention of membership of Municipal Councils

in event of change of party membership, merger between parties, subdivision of parties and subdivision and merger of parties

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 party participated in an election or not,

and the ward represented by such a councillor must be regarded as having been—

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

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

(ii) subdivide into more than one party or subdivide and any one subdivision 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 which they represent pursuant to any merger, subdivision or subdivision and merger contemplated in this paragraph.

(2) The provisions of items 4(2), 5 and 6 are also applicable in respect of subitem (1), and any reference therein to a 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).

Filling of vacancies

 

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

 

Amendment of Schedule

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

Appendix 2:
LOCAL GOVERNMENT: MUNICIPAL STRUCTURES AMENDMENT BILL

[B22-2002]

PROPOSED AMENDMENTS

INSERTION OF NOTE

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

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

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; to 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 26^th 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 27^th line, to omit the words from "AND WHEREAS" up to the word "parties" in the 29^th 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:

Amendment of section 26 of Act 117 of 1998

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:

"(b) 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.".

Amendment of section 27 of Act 117 of 1998, as amended by section 93 of Act 27 of 2000 and section 121 of Act 32 of 2000

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

Amendment of section 29 of Act 117 of 1998

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

"(3) Where the composition of a municipal council has been changed as a result of the provisions of item 2, 3 or 7 of Schedule 6A to the Constitution, the speaker of that council must, subject to item 6(b) of Schedule 6A to the Constitution, convene council meetings for purposes of dealing, amongst others, with the consequences of such a change, the first of which meetings must -

(a) in the case of a metro council or a local council, take place 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; and

(b) in the case of a district council, take place within seven days after the completion of the appointments referred to in item 6(b)(ii) of Schedule 6A to the Constitution.".

Amendment of section 62 of Act 117 of 1998

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);".

Substitution of section 63 of Act 117 of 1998

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

"Composition

63. (1) Each metropolitan subcouncil consists of -

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

 

1. 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 established;

(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 established 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 that Act until -

(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.

 

1. 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 section 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.".

Substitution of section 66 of Act 117 of 1998

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

"Term of office of members

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.".

Insertion of new section after section 93 of Act 117 of 1998

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

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

93A. Where the provisions of item 6 of Schedule 6A to the Constitution apply, the requirement of prior notice referred to in sections 40, 53(1) and 58, respectively, does not apply to meetings of a municipal council during the period referred to in item 6(b) of Schedule 6A to the Constitution.

Publication of notice by Electoral Commission

93B. The Electoral Commission must, within seven days of the expiry of a period referred to in item 4(1)(a)(i) or (ii) of Schedule 6A to the Constitution, publish a notice in the Gazette in respect of each municipal council whose composition has changed as a result of any conduct in terms of item 2, 3 or 7 of that Schedule, which must reflect -

(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.".

 

Substitution of item 10 of Schedule 1 to Act 117 of 1998, as amended by section 93 of Act 27 of 2000

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

"Submission of lists of candidates

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.".

Substitution of item 4 of Schedule 2 to Act 117 of 1998, as amended by section 93 of Act 27 of 2000

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

"Submission of lists of candidates

4. (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.".

 

Substitution of Schedule 4 to Act 117 of 1998

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

"SCHEDULE 4

Part 1: Method of allocating councillors elected from party lists to metropolitan subcouncils

 

Allocating seats to parties

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) -

X C

Where -

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

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

C represents the total number of seats allocated to each party in the 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.

Part 2: Principles of allocating councillors elected from party lists to metropolitan subcouncils

Principles of allocating seats to parties

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.

Part 3: General principles

Designation of councillors for metropolitan subcouncils

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.

 

Councillors to serve on one metropolitan subcouncil only

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

Vacancies

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

Amendment of Table of Contents of Act 117 of 1998

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

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

"SCHEDULE 4

Part 1: Method of allocating councillors elected from party lists to metropolitan subcouncils

1. Allocating seats to parties

Part 2: Principles of allocating councillors elected from party lists to metropolitan subcouncils

2. Principles of allocating seats to parties

Part 3: General principles

3. Designation of councillors for metropolitan subcouncils

4. Councillors to serve on one metropolitan subcouncil only

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".

Registration of new parties for purposes of Schedule 6A to the Constitution

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 the 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 four months after the expiry of that 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 seats 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.

Transitional arrangement

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.

Short title and commencement

14. (1) This Act is called the Local Government: Municipal Structures Amendment Act, 2002, and with the exception of section 4, comes into operation on 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.

Appendix 3:
PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT (NATIONAL ASSEMBLY)

AMENDMENTS TO

 

CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA SECOND AMENDMENT BILL

[B17 - 2002]

___________________________________

PREAMBLE

1. On page 2, in the seventeenth line, after "party," to insert:

or to subdivide and any one of the subdivisions to merge with another party,

2. On page 2, in the twentieth line, after the second "parties" to insert:

or subdivision and merger of parties

CLAUSE 1

1. Clause rejected.

NEW CLAUSES

That the following be new Clauses:

Amendment of section 61 of Act 108 of 1996

1. Section 61 of the Constitution of the Republic of South Africa, 1996, is hereby amended by the substitution for subsections (2) and (3) of the following subsections respectively:

"(2) (a) A provincial legislature must, within 30 days after the result of an election of [a provincial] that legislature is declared [the legislature must]—

[(a)] (i) determine, in accordance with national legislation, how many of each party's delegates are to be permanent delegates and how many are to be special delegates; and

[(b)] (ii) appoint the permanent delegates in accordance with the nominations of the parties.

(b) If the composition of a provincial legislature is changed on account of changes of party membership, mergers between parties, subdivision of parties or subdivision and merger of parties within that legislature, it must within 30 days after such change—

(i) determine, in accordance with the national legislation referred to in paragraph (a), how many of each party's delegates are to be permanent delegates and how many are to be special delegates; and

(ii) appoint the permanent delegates in accordance with the nominations of the parties.".

 

Amendment of section 62 of Act 108 of 1996

2. Section 62 of the Constitution of the Republic of South Africa, 1996, is hereby amended by the substitution for subsection (3) of the following subsection:

"(3) Permanent delegates are appointed for a term that expires—

(a) immediately before the first sitting of a provincial legislature after its next election; or

(b) on the day before the appointment of permanent delegates in accordance with section 61(2)(b)(ii) takes effect.".

LONG TITLE

1. On page 2, to omit all the words from the second to the fourth line and to substitute the following:

To amend the Constitution of the Republic of South Africa, 1996, in order to regulate the allocation of delegates to the National Council of Provinces in the event of changes of party membership, mergers between parties, subdivision of parties or subdivision and merger of parties within a provincial legislature; and to provide for matters connected therewith.

Appendix 4:
REPUBLIC OF SOUTH AFRICA

LOSS OR RETENTION OF MEMBERSHIP OF NATIONAL AND PROVINCIAL LEGISLATURES BILL

--------------------------------

 

(As introduced by the Portfolio Committee on Justice and Constitutional Development. Permission for introduction granted by the National Assembly on 13 November 2001 in terms of Rule 238(3) of the National Assembly.) (The English text is the official text of the Bill.)

---------------------------------

[B - 2002]

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.

___________________________________________________________________________

B I L L

To amend Schedule 2 to the Constitution of the Republic of South Africa, 1993, in order to enable a member of a legislature to become a member of another party whilst retaining membership of that legislature; to enable an existing party to merge with another party, or to subdivide into more than one party, or to subdivide and any one subdivision to merge with another party; and to provide for matters connected therewith.

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

AND WHEREAS section 47(3)(a) of the 1996-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 47(4) of the 1996-Constitution provides that vacancies in the National Assembly must be filled in terms of national legislation;

AND WHEREAS section 105(1)(d) of the 1996-Constitution requires an electoral system for provincial legislatures that results, in general, in proportional representation;

AND WHEREAS section 106(3)(a) of the 1996-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 section 106(4) of the 1996-Constitution provides that vacancies in a provincial legislature must be filled in terms of national legislation;

AND WHEREAS Schedule 6 to the 1996-Constitution inserted item 23A in Schedule 2 to the Constitution of the Republic of South Africa, 1993, in order to provide—

1. for an additional ground for the loss of membership of the National or provincial legislatures; and
2. that an Act of Parliament may, within a reasonable period after the 1996-Constitution took effect, be passed in accordance with section 76(1) of the 1996-Constitution to amend that item and item 23 in order to provide for the manner in which it will be possible for—
1. 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
2. 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 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:—

Amendment of Schedule 2 to Act 200 of 1993, as amended by section 12 of Act 2 of 1994, section 3 of Act 20 of 1995 and Schedule 6 to Act 108 of 1996

1. Schedule 2 to the Constitution of the Republic of South Africa, 1993, is hereby amended by the substitution for items 23 and 23A of the following items:

"Vacancies

23. (1) In the event of a vacancy in a legislature to which this Schedule applies, the party which [nominated] the vacating member represented shall fill the vacancy by nominating a person—

 

(a) whose name appears on the list of candidates—

(i) from which [the vacating member was] that party's members were originally nominated; or

(ii) where applicable, submitted by a party in terms of item 23A(8); and

 

(b) who is the next qualified and available person on the list.

(2) A nomination to fill a vacancy shall be submitted to the Speaker in writing.

(3) If a party represented in a legislature dissolves or ceases to exist and the members in question vacate their seats in consequence of item 23A(1), the seats in question shall be allocated to the remaining parties mutatis mutandis as if such seats were forfeited seats in terms of item 7 or 14, as the case may be.

Additional ground for loss of membership of legislature and retention of membership of legislature in event of member joining another party, mergers between parties, subdivision of parties or merger and subdivision of parties

23A. (1) A person who is a member of a legislature to which this Schedule applies and who, other than in accordance with subitem (2), (3) or (4), ceases to be a member of the party which nominated that person as a member of the legislature, ceases to be a member of that legislature.

(2) (a) Subject to subitem (5), a member of a legislature who becomes a member of a party (the new party) other than the party which nominated that person as a member (the nominating party), whether the new party participated in an election or not, remains a member of that legislature if that member, whether by himself or herself or together with one or more other members who, during a period referred to in subitem (5)(a)(i) or (ii), ceased to be members of the nominating party, represent not less than 10 per cent of the total number of seats held by the nominating party in that legislature.

(b) The seat held by a member referred to in paragraph (a) is regarded as having been allocated to the new party which the member represents.

(3) (a) Subject to subitem (5), any political party (the original party) which is represented in a legislature may—

(i) merge with another party, whether that party participated in an election or not; or

(ii) subdivide into more than one party or subdivide and any one subdivision 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 that legislature.

(b) If a party merges with another party or subdivides into more than one party or subdivides and merges with another party in terms of paragraph (a), the members concerned remain members of that legislature and the seats held by them are regarded as having been allocated to the party which they represent pursuant to any merger, subdivision or subdivision and merger contemplated in paragraph (a).

(4) During the first 15 days immediately following the date of the commencement of this item—

(a) a member of a legislature may become a member of another party (the new party), whether the new party participated in an election or not, whilst remaining a member of the legislature concerned and the seat held by that member must be regarded as having been allocated to the new party of which that member has become a member; and

(b) any political party which is represented in a legislature may—

(i) merge with another party, whether that party participated in an election or not; or

(ii) subdivide into more than one party or subdivide and any one subdivision merge with another party, whether that party participated in an election or not,

whilst the members concerned remain members of that legislature and the seats held by them must be regarded as having been allocated to the party which they represent pursuant to any merger, subdivision or subdivision and merger contemplated in this paragraph.

(5) (a) The provisions of subitems (2) and (3) only apply—

(i) 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 the legislature; and

(ii) 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 the legislature;

but do not apply during the year ending on 31 December 2002.

(b) For the purpose of paragraph (a) "year" means a period of 365 days.

(c) During a period referred to in subitem (4) or in paragraph (a)(i) or (ii)—

(i) a member of a legislature may only once change membership of a party, by informing the Speaker of the legislature thereof in writing and by submitting to the Speaker written confirmation from such other party that he or she has been accepted as a member of that party; and

(ii) a party may only once—

(aa) merge with another party;

(bb) subdivide into more than one party; or

(cc) subdivide and any one subdivision merge with another party,

by informing the Speaker of the legislature thereof in writing and by submitting to the Speaker written confirmation from the other party of the names of all members involved in the merger or subdivision, and that the party has accepted the merger; and

(iii) no party represented in a legislature may—

(aa) suspend or terminate the party membership of a member representing that party in that legislature; or

(bb) perform any act whatsoever which may cause such a member to be disqualified from holding office as such a member,

without the written consent of the member concerned.

(d) For the purposes of subitems (2) and (3), "party" means a party duly registered as a political party in accordance with applicable law, including a party so registered during the period referred to in paragraph (a)(i) or (ii).

(e) 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 the purposes of subitem (4), but such a party must apply for registration as a party in accordance with applicable law within the period referred to in subitem (4). If the party is not registered accordingly within four months after the expiry of that period, it is regarded as having ceased to exist as contemplated in item 23(3), and the seats in question shall be allocated to the remaining parties mutatis mutandis as if such seats were forfeited seats in terms of item 7 or 14, as the case may be.

(6) After the expiry of a period referred to in subitem (4) or (5)(a)(i) or (ii), the composition of a legislature which has been reconstituted as a result of any conduct in terms of subitem (2), (3) or (4) is maintained until the next election of that legislature or until the composition of the legislature is reconstituted in accordance with subitem (2) or (3).

(7) The Speaker of a legislature contemplated in subitem (6) must, within seven days after the expiry of a period referred to in subitem (4) or (5)(a)(i) or (ii), publish a notice in the Gazette which must reflect—

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

(b) the name of, and party represented by, each member.

(8) Within seven days after the expiry of a period referred to in subitem (4) or (5)(a)(i) or (ii), each party represented in a legislature contemplated in subitem (6) must submit a list of its candidates to the Secretary of the legislature.

(9) This item and item 23 may be amended by an Act of Parliament passed in accordance with section 76 (1) of the new Constitution.

(10) Any existing political party may at any time change its name.".

 

Short title

2. This Act is called the Loss or Retention of Membership of National and Provincial Legislatures Act, 2002.

Appendix 5
Municipal Structures Amendment Bill Report to Parliament
The Portfolio Committee on Provincial and Local Government, having considered the Municipal Structures Amendment Bill, 2002 [B22-2002], reports as follows:

1. The Municipal Structures Amendment Bill basically addresses the consequences of constitutional amendments providing for "crossing-the-floor" in the local government sphere.

2. The current electoral system in the Municipal Structures Act, 1998 (Act No.117 of 1998) is very closely linked to the model of local government. The model was significantly based on a prohibition of "floor-crossing". Both through the constitutional amendments and the amendment of the Municipal Structures Act in this Bill, there has been a concern to provide for "floor-crossing" in a way that does not erode the foundations of the new model of local government, especially the concepts of democracy underpinning it.

3. The Committee believes that the provisions of this Bill respond appropriately to the above concerns and they could serve to strengthen aspects of the new model of local government.

4. The provisions to allow for "crossing-the-floor" have consequences for the composition of district councils, metropolitan subcouncils and other municipal structures and committees. Among other matters, the Bill provides for the reconstitution of metropolitan subcouncils in terms of a new formula that makes provision for "floor-crossing". It is difficult at this stage to fully anticipate all the consequences that "crossing-the-floor" will have for district councils, metropolitan subcouncils and other municipal structures and committees. The Committee will closely monitor the process The Committee urges the Department of Provincial and Local Government to play a full and effective role in ensuring that all the practical consequences of "floor-crossing" are catered for through legislation, including regulations, and guidelines and other appropriate means.

5. The provisions on "crossing-the-floor" also confer additional responsibilities on the Electoral Commission. The Commission is urged to put the necessary infrastructure and procedures in place to attend to these responsibilities expeditiously.