Section 61(1) of the Constitution:

Parties represented in a provincial legislature are entitled to delegates in the province's delegation in accordance with the formula set out in Part B of Schedule 3 to the Constitution.

Part B of Schedule 3 to the Constitution:

1. The number of delegates in a provincial delegation to the National Council of Provinces to which a party is entitled, must be determined by multiplying the number of seats the party holds in the provincial legislature by ten and dividing the result by the number of seats in the legislature plus one.

number of seats the party holds in the provincial legislature x 10

number of seats in the legislature +1

2. If a calculation in terms of item I yields a surplus not absorbed by the delegates allocated to a party in terms of that item, the surplus must compete with similar surpluses accruing to any other party or parties, and any undistributed delegates in the delegation must be allocated to the party or parties in the sequence of the highest surplus.

3. If the competing surpluses envisaged in item 2 are equal, the undistributed delegates in the delegation must be allocated to the party or parties, including any merged party as contemplated in section 61(2)(b), with the same surplus in sequence of votes recorded, starting with the party or merged party which recorded the highest number of votes, including combined votes in the case of a merged party, during the last election for the provincial legislature concerned, but if any of the parties with the same surplus- (a) came into existence on account of changes of party membership or subdivision of parties within that legislature as contemplated in section 61(2)(b); and (b) did not participate in the last election for the provincial legislature concerned, the legislature must allocate the undistributed delegates in the delegation to the party or parties with the same surplus in a manner which is consistent with democracy.

Section 61(2)(a) of the Constitution:

(a) A provincial legislature must, within 30 days after the result of an election of that legislature is declared-

1. 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
2. appoint the permanent delegates in accordance with the nominations of the parties.

Section 61(2)(b) of the Constitution:

(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-

1. 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
2. appoint the permanent delegates in accordance with the nominations of the parties.

Section 2 of the Determination of Delegates (National Council of Provinces) Act, 1998

Every party represented in a provincial legislature which in terms of section 61(1) of the Constitution is entitled to delegates in the delegation of the particular province, must have at least one permanent delegate.

Subsection (2):

The number of permanent delegates of a party which is entitled to more than one delegate is determined by multiplying the total number of delegates to which such a party is entitled by six and dividing the result by ten, disregarding any fraction of a number.

total number of delegates to which such a party is entitled x 6

Subsection 3:

The remaining number of the total number of delegates to which a party contemplated in subsection (2) is entitled, are the special delegates of that party: Provided that if the number of special delegates so determined is more than the number of permanent delegates of that party, the number of the special delegates must be reduced in favour of the number of permanent delegates so that the number of special delegates is equal to or less than the number of permanent delegates of that party.

Subsection 4: [Current position]

If the total number of special delegates determined in terms of subsection (3) in respect of a particular provincial legislature-

• is less than four, the delegates of the parties that are entitled to only one delegate in the delegation of the particular province must, despite subsection (1), become special delegates in the sequence from the lowest to the highest number of votes that have been recorded for those parties during the last election of the provincial legislature concerned, until four special delegates have been allocated to parties in the provincial delegation concerned.
• is more than four, the special delegates so determined must, despite subsections (2) and (3), become permanent delegates in the sequence from the highest to the lowest number of votes that have been recorded for the parties concerned during the last election of the provincial legislature concerned, until six permanent delegates have been allocated to parties in the provincial delegation concerned.