As distributed in Committee on 05/08/2005.

DRAFT 1

(05/08/2005)



REPUBLIC OF SOUTH AFRICA

PORTFOLIO COMMITTEE AMENDMENTS TO CONSTITUTIONAL MATTERS AMENDMENT BILL

[B 22—2005]

(As agreed to by the Portfolio Committee on Justice and Constitutional Development (National

Assembly))

[B 22A—-2005]

AMENDMENTS AGREED TO

CONSTITUTIONAL MATTERS AMENDMENT BILL

[B 22—2005]


CLAUSE 2

Clause rejected.

NEW CLAUSE


1. That the following be a new Clause:

Amendment of section 5 of Act 103 of 1997


2. Section 5 of the Funding Act is hereby amended—

(a) by the substitution in subsection (1)(a) for the words preceding subparagraph (i) of the following words:


"[Every] Subject to this Act, every political party is entitled to be allocated moneys from the Fund for any financial year that it is represented—";

(b) by the substitution for subsection (4) of the following subsection:


OPTION 1 (IFP) 1

"(4) (a) [The] Subject to subsections (6) and (7), the The allocation of moneys from the Fund to a political party will end when a party ceases qualifying therefor in terms of subsection (1)(a). [Within] Subject to paragraph (b), a political party must, within 21 days after the date on which [a political party] it has so ceased to qualify, it must] repay to the Commission the unspent balances, as at that date, of all moneys that had been allocated to it in terms of this section.

(b) A political party which immediately prior to the period referred to in item 4(1)(a) or (b) of Schedule 6A to the Constitution qualified for the allocation of moneys from the Fund in terms of subsection (1)(a) {as a result of its representation in a legislature} does not have to repay to the Commission the unspent balances of all moneys that had been allocated to it in terms of this section if it ceases to qualify for the allocation of moneys from the Fund in terms of subsection (1)(a) as a result of its-

  1. Only member becoming a member contemplated in item 2(1);
  2. Merger with another political party in terms of item 3(1)(a); or
  3. Subdivision in a manner contemplated in item 3(1)(b),

    4. of Schedule 6A of the Constitution." And

    Option 2 (COMMITTEE)
    "(4) (a) [The] Subject to subsections (6) and (7), the The allocation of moneys from the Fund to a political party will end when a party ceases qualifying therefor in terms of subsection (1)(a). Within 21 days after the date on which a political party has so ceased to qualify, it must repay the unspent balances, as at that date, of all moneys that had been allocated to it in terms of this section.


    b) A political party which immediately prior to the period referred to in item 4(1)(a) or (b) of Schedule 6A to the Constitution qualified for the allocation of moneys from the Fund in terms of subsection (1)(a) {as a result of its representation in a legislature} does not have to repay to the Commission the unspent balances of all moneys that had been allocated to it in terms of this section if it ceases to qualify for the allocation of moneys from the Fund in terms of subsection (1)(a) as a result of its-

  4. Only member becoming a member contemplated in item 2(1);
  5. Merger with another political party in terms of item 3(1)(a); or
  6. Subdivision in a manner contemplated in item 3(1)(b),

    7. of Schedule 6A of the Constitution." and

    OPTION 3 (COMMITTEE)

    "(4) (a) [The] Subject to subsections (6) and (7), the The allocation of moneys from the Fund to a political party will end when a party ceases qualifying therefor in terms of subsection (1)(a). Within 21 days after the date on which a A political party that has so ceased to qualify, [it] must, in accordance with section 6A, repay to the Commission the unspent balances, [as at that date,] of all moneys that had been allocated to it in terms of this section.


    b) A political party which immediately prior to the period referred to in item 4(1)(a) or (b) of Schedule 6A to the Constitution qualified for the allocation of moneys from the Fund in terms of subsection (1)(a) {as a result of its representation in a legislature} does not have to repay to the Commission the unspent balances of all moneys that had been allocated to it in terms of this section if it ceases to qualify for the allocation of moneys from the Fund in terms of subsection (1)(a) as a result of its-

  7. Only member becoming a member contemplated in item 2(1);
  8. Merger with another political party in terms of item 3(1)(a); or
  9. Subdivision in a manner contemplated in item 3(1)(b),

of Schedule 6A of the Constitution." and

OPTION 4 (ALTERNATIVE)

"(4) [The] Subject to subsections (6) and (7), the The allocation of moneys from the Fund to a political party will end when a party ceases qualifying therefor in terms of subsection (1)(a). Within 21 days after the date on which a political party has so ceased to qualify, it must repay the unspent balances, as at that date, of all moneys that had been allocated to it in terms of this section." and


(c) by the addition of the following subsections:

option 1


"(5) If a member of a legislature becomes a member contemplated I item 2(1) of Schedule 6A to the Constitution, the nominating party contemplated in that item does not have to repay to the Commmission the unspent balances of all moneys that had been allocated to it in terms of this section in respect of the seat held by the member concerned.

(6) A political party which immediately prior to the period referred to in item 4(1)(a) or (b) of Schedule 6a to the Constitution qualified for the allocation of moneys from the Fund in terms of subsection (1)(a) as a result of its representation in a legislature must, within 28 days after the expiry of the period referred to in item 5(3) of Schedule 6A to the Constitution, repay to the Commission the unspent balances, as at 1 September of the financial year in question, of all moneys that had been allocated to it in terms of this section if it-

  1. ceases to qualify for the allocation of moneys from the Fund in terms of subsection (1)(a) as a result of its merger with another political party which did not immediately prior to the period referred to in item 4(1)(a) or (b) of Schedule 6a to the Constitution qualify for the allocation of moneys from the Fund in terms of subsection (1)(a) as a result of the other party not being represented in the legislature concerned; or
  2. subdivides in a manner contemplated in item 3(1)(b) of Schedule 6a to the Constitution, and no subdivision of that party continues to represent the party in the legislature concerned after the expiry of the period referred to in item 5(3) of Schedule 6a to the Constitution.


(7) (6) A political party which immediately prior to the period referred to in item 4(1)(a) or (b) of Schedule 6A to the Constitution qualified for the allocation of moneys from the Fund in terms of subsection (1)(a) {as a result of its representation in a legislature} does not have to repay to the Commission the unspent balances of all moneys that had been allocated to it in terms of this section if it:

(a) ceases to qualify for the allocation of moneys from the Fund in terms of subsection (1)(a) as a result of its merger with another political party in terms of item 3(1)(a) of Schedule 6A to the Constitution, but the other party

(i) qualified for the allocation of moneys from the Fund in terms of subsection (1)(a) immediately prior to the period referred to in item 4(1)(a0 or (b) of Schedule 6A to the Constitution as a result of its representation in the legislature concerned; and

(ii) continues to qualify for the allocation of moneys from the Fund in terms of subsection (1)(a) after the expiry of the period referred to in item 5(3) of Schedule 6A to the Constitution as a result of its representation in the legislature concerned; or

(b) subdivides in a manner contemplated in item 3(1)(b)of Schedule 6A to the Constitution, and any subdivision of that party continues to—

(i) (a) represent that party in the legislature concerned after the expiry of the period referred to in item 5(3) of

Schedule 6A to the Constitution: and

(ii) (b)qualify for the allocation of moneys from the Fund in terms of subsection (1)(a) {as a result of its representation in the legislature concerned},

whether the subdivision of that party has changed the name of that party or not.

(8) (7) The Commission must deal with any circumstances, other than those provided for in subsection 95), (6) and 97) this section, that arise during a period referred to in item 4(1)(a) or (b) of Schedule 6A to the Constitution in the manner it deems appropriate, taking into account the objectives and principles provided for in this Act.".

OPTION 2

Delete proposed subsections (5) to (7), present proposed subsection (8) becoming new proposed subsection (5).

"(8) (5) The Commission must deal with any circumstances, other than those provided for in subsections (5), (6) and (7) this section, that arise during a period referred to in item 4(1)(a) or (b) of Schedule 6A to the Constitution in the manner it deems appropriate, taking into account the objectives and principles provided for in this Act.".

OPTION 3

Delete proposed subsections (5) to (8).


NEW CLAUSE

1. That the following be a new Clause:


Insertion of section 6A in Act 103 of 1997

3. The following section is hereby inserted in the Funding Act after section 6:

OPTION 1

"Repayment of unspent balances

6A. (1) The person who last held the office of accounting officer of a political party contemplated in section 5(4)(b) must. within two months after the last day of September of the financial year in question, prepare a statement showing—

(a all amounts received by the party from the Fund during that financial year and its application of those moneys, as well as the purposes for which the various amounts have been applied:

(b) the unspent balances of the party, as at the last day of September of the financial year in question, of all moneys that had been allocated to it in terms of section 5(1)(a) and

(c) all the fixed financial commitments of the party until the end of the financial year in question,

whereafter that accounting officer must have that statement and the books and records of account kept in terms of section 6 audited by a public accountant and auditor registered and practising as such in terms of the Public Accountants' and Auditors' Act. 1991 (Act No. 80 of 1991).

(2) An auditor who has performed an audit contemplated in subsection (\\ must in the auditor's report express an opinion—

(a) as to whether the allocated moneys were spent for purposes not authorised by this Act: and

(b) on the correctness of the information referred to in subsection (1)(b) and (c).

(3) The auditor's report and audited statement, as well as all statements for the financial year in question of the banking account of the political party kept in terms of section 6(1) (a) must be submitted to the Commission by that accounting officer within three months after the last day of September of the financial year in question.

(4) The Commission must within two months after receipt of the auditor's report and audited statement and statements of the banking account of the political party submitted to it in terms of subsection (3)—

(a) determine the percentage of the unspent balances of all moneys that had been allocated to the political party in terms of section 5 that must be repaid to the Commission, taking into account the information referred to in subsection (1)(c);

(b) determine the date on which that percentage of unspent balances of moneys must be repaid to the Commission: and

(c) inform the accounting officer of the political party of the percentage and date determined in terms of paragraphs (a) and (b).

(5) The Commission may for purposes of subsection (4)(a)—

(a) direct the accounting officer of the political party to provide it with the additional information that it may require; and

(b) appoint a public accountant and auditor registered and practising as such in terms of the Public Accountants' and Auditors' Act 1991 (Act No. 80 of 1991). to—
(i) verify the auditor's report and audited statement submitted to it in terms of subsection (3): or

(ii) audit the statement referred to in subsection (1) and the books and records of account kept in terms of

section 6.

(6) The accounting officer of the political party must repay to the Commission the percentage of the unspent balances of moneys on or before the date determined in terms of subsection (4)(a) and (b), respectively.

(7) Any unspent balances of moneys repaid in terms of subsection (6), will be credited to the Fund.".

OPTION 2

Still to be drafted. This Option, read with Option 3 under clause 2(b) and Option 2 under the proposed new clause 5, will regulate repayment of unspent balances where a political party ceases to qualify for the allocation of moneys from the Fund under normal circumstances, after a window for "floor crossing" or when Parliament and provincial legislatures are dissolved.

OPTION 3

Still to be drafted. This Option, read with Option 4 under clause 2(b) and Option 2 under the proposed new clause 5, will regulate repayment of unspent balances where a political party ceases to qualify for the allocation of moneys from the Fund under normal circumstances, after a window for "floor crossing" or when Parliament and provincial legislatures are dissolved.

NEW CLAUSE

1. That the following be a new Clause:

Amendment of section 8 of Act 103 of 1997

4. Section 8 of the Funding Act is hereby amended by the substitution in subsection (1)(b) for subparagraph (i) of the following subparagraph:

"(i) the amounts received by and accrued to the Fund, including the amounts of the unspent balances of money repaid to the Commission, if applicable, during that financial year;".

Clause 3
Clause rejected.

NEW CLAUSE

1. That the following be a new Clause:

Amendment of section 9 of the Funding Act

OPTION 1


5. Section 9 of the Funding Act is hereby amended-
(a) by the substitution for subsection (2) of the following subsection:

"(2) All moneys standing to the credit of the Fund at the end of any financial year will be carried forward to the next financial year a credit balance: Provided that any unspent balances of moneys repaid to the Commission in terms of section 6A (6), must be used in the prescribed manner."; and

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

"(a) If Parliament and every provincial legislature are dissolved in terms of the Constitution [of the Republic of South Africa, 1996 (Act No. 108 of 1996)], every political party that is represented in any or all of those legislative bodies must close its books and records of account kept in terms of section 6 not later than 21 days before the date set for the election of those legislative bodies and within 14 days thereafter submit an audited statement in respect of those books and records of account to the Commission.".

OPTION 2

5. Section 9 of the Funding Act is hereby amended-
(a) by the substitution for subsection (2) of the following subsection:

"(2) All moneys standing to the credit of the Fund at the end of any financial year will be carried forward to the next financial year a credit balance: Provided that any unspent balances of moneys repaid to the Commission in terms of section 6A (6), must be used in the prescribed manner."; and


(b) by the deletion of subsections 93) and 94).

NEW CLAUSE

1 That the following be a new Clause:

Insertion of section 9A in Act 103 of 1997

6. The following section is hereby inserted in the Funding Act after section 9:

"Offences and penalties

9A. Any person who contravenes or fails to comply with any provision of this Act is guilty of an offence and liable or conviction to a fine or to imprisonment for a period not exceeding six months.".

CLAUSE 4

OPTION I (IFP)

Clause rejected.

OPTION 2 (COMMITTEE)

Retain clause 4.