Loss or Retention of Membership of National & Provincial Legislatures Bill: briefing

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
29 April 2002
"CROSSING THE FLOOR" LEGISLATION: BRIEFING

Relevant documents:
"Crossing the floor" legislation (as Certified) March 2002

This meeting was not minuted. Mr Johan De Lange, Director of Legislation in the Department of Justice, briefed the Committee on the proposed crossing of the floor legislation. An outline of his presentation at the meeting follows.

The principles contained in the Membership Bill will be brought in line with those proposed in the First Constitutional Amendment Bill during the parliamentary process.

Hearing and deliberations on the crossing of the floor legislation will be heard during the week of the 13^th of May 2002.


DEPARTMENT OF JUSTICE
DRAFT LEGISLATION PERTAINING TO CHANGES OF PARTY MEMBERSHIP, MERGERS AND SUBDIVISION OF PARTIES

A. LOSS OR RETENTION OF MEMBERSHIP OF NATIONAL AND PROVINCIAL LEGISLATURES BILL, 2001 ("MEMBERSHIP BILL")
A.1 In terms of item 23A of Schedule 2 to the Constitution of the Republic of South Africa, 1993, (Act No. 200 of 1993), an Act of Parliament may, within a reasonable period after the new (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—
- 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,

A.2 The Membership Bill aims to substitute the said items 23 and 23A in order to provide for the procedures referred to above. The mechanism proposed in the Bill entails that a member will be allowed to change party membership, or a party will be allowed to merge or to subdivide—
- only during a period determined by the President by proclamation in the Gazette; and
- only after the expiry of 12 months from the date of the last election in respect of the legislature.

A.3 The Membership Bill was initiated and published for comments by the Portfolio Committee on Justice and Constitutional Development (National Assembly) on 16 November 2001, and will be introduced as a Committee Bill. During the Parliamentary process the principles contained in the Bill will be aligned with those being proposed in the First Constitution Amendment Bill (pertaining to local government).

B. CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL [B16—2002]
("FIRST CONSTITUTION AMENDMENT BILL")

B.1 The First Constitution Amendment Bill aims to regulate changes of party membership and mergers/subdivision of parties at the level of local government. The provisions of the Bill are largely modelled on the principles contained in the Membership Bill. Provision is made for the following:

- Changes of party membership will only be allowed after the expiry of 12 months after the date of the previous election of all Municipal Councils.

- Similarly, such changes will not be allowed during the 12 months preceding the date of the next election of all Municipal Councils.

- A further requirement is added, namely that a change of party membership will only be allowed if the members wishing to leave a party represent not less than 10 per cent of the seats held by the party concerned. (New section 158A(2).)

- Similarly, mergers between or subdivisions of political parties will only be allowed after the expiry of 12 months after the date of the previous election of all Municipal Councils, and will not be allowed during the 12 months preceding the date of the next election of all Municipal Councils..

- In respect of subdivisions the further requirement is also added that the members leaving the original party must represent not less than 10 per cent of the seats held by the party concerned. (New section 158A(4).)

All of the above steps may only take place during limited periods as determined by the Bill.
- In the year 2002, such periods will be during the first fifteen days following the commencement of section 158A, and again from the first to the fifteenth day of September.
- In the years thereafter, such periods will last from the first to the fifteenth day of February, and from the first to the fifteenth day of September, of each year. (New section 158A(5).)

- The Bill also introduces a new principle (not being contained in the Membership Bill), in that provision is made that, during a period allowed for the above changes of membership, mergers or subdivision of parties, no party represented in a Municipal Council may—
- suspend or terminate the party membership of a councillor representing that party; or
- perform any act whatsoever which may cause such a councillor to be disqualified from holding office as such a councillor or change such councillor's position on a party list relating to the said Municipal Council. (new section 158A(5)(c)

- During a "window" allowed for crossing/mergers/subdivisions—
- a councillor is allowed to change party membership only once; and
- a party may merge/subdivide only once. (new section 158A(5)(b))

B.2 The First Constitution Amendment Bill must be dealt with in terms of section 74(3)(a) of the Constitution, that is, it must only be passed by the National Assembly.

C. CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA SECOND AMENDMENT BILL [B17—2002] ("SECOND CONSTITUTION AMENDMENT BILL")
C.1 The National Council of Provinces is composed of a single delegation, comprising four special delegates and six permanent delegates, from each province. Parties represented in a provincial legislature are entitled to delegates in the province's delegation in accordance with a formula set out in Schedule 3 of the Constitution. Each provincial legislature must, within 30 days after the result of an election is declared, determine the number of delegates of each party and appoint the permanent delegates of the parties. (Sections 60 and 61 of the Constitution.)

C.2 The provisions of the Membership Bill may lead to significant changes of party representation in a provincial legislature, which may, in turn, necessitate the redetermination of the composition of that legislature's delegation in the National Council of Provinces. As such changes would not result from an election, there is no mechanism in terms of which such a redetermination can take place. The Second Constitution Amendment Bill aims to amend the Constitution in order to provide that, after the composition of a provincial legislature had been changed in accordance with national legislation (the Membership Bill), that legislature must determine the number of delegates of each party to the National Council of Provinces. This is done by amending section 61 of the Constitution so as to provide that a provincial legislature must, within 30 days after the result of an election is declared or the composition of that legislature is changed in accordance with national legislation on account of changes of party membership, mergers between parties or subdivision of parties within that legislature—
- 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
- appoint the permanent delegates in accordance with the nominations of the parties.

C.3 The Second Constitution Amendment Bill must be dealt with in terms of section 74(3)(b) of the Constitution, that is, it must be passed by both the National Assembly and the National Council of Provinces.

D. LOCAL GOVERNMENT: MUNICIPAL STRUCTURES AMENDMENT BILL, 2002
("STRUCTURES AMENDMENT BILL")
D.1 The Structures Amendment Bill amends the Local Government: Municipal Structures Act, 1998, in order to harmonise its provisions relating to loss of council-membership with the provisions of the First Constitution Amendment Bill.

D.2 This Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution.