Crossing of the Floor: Municipal Structures Amendment Bill

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Justice and Correctional Services

03 June 2002
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE; PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE: JOINT MEETING
4 June 2002
CROSSING OF THE FLOOR: CONSTITUTION OF RSA AMENDMENT BILL

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

Documents handed out:
Municipal Structures Amendment Bill - second draft
Municipal Structures Amendment Bill - third draft [handed out on 5/6]
Constitution of the RSA Amendment Bill [B16-2002]: Working Draft (see Appendix)

SUMMARY
Each party represented at the meeting was allowed to state its official party opinion of the Constitution of the Republic of South Africa Amendment Bill [B16-2002]. Following the parties' statements, the joint committee read through the first three provisions of the Bill and discussed changes that had been made previously by the committees and other alterations to the Bill that still needed to take place.

The Committees deliberated on Clauses 4, 5 and 6 of the Constitutional Amendment Bill. Clause 4 now refers to the second year and fourth years of an election, and provides for a 15 day window period in September of those years during which crossing may take place.
The principle contained in clause 5 is that the notice issued by the IEC should contain a list of the members of parties and the proportionality of the parties. Clause 6 governs the reconstitution of parties and it was agreed that in law the date of reconstitution would be from the end of the 15 day window period while in actual fact it would only take place from the date of the notification.

MINUTES
Adv de Lange (the Chair) began the meeting by going over some of the issues with which the committees have been wrestling:
- He noted that there was no support to allow municipal restructuring every year because frequent restructuring could cause stability problems. Three options for window periods have been suggested:
1. Restructuring could occur once during a five-year term at the midway point in the term.
2. Restructuring may occur three times during the five-year term at year 2,3, and 4.
3. Restructuring may occur twice during the five-year term at year 2 and 4.
All parties agree that September would be the best month to schedule the restructuring because yearly budgets are completed and Spring seems like an appropriate time for positive change.

- The second main point of contention is the issue of whether there should be a threshold of members changing parties before a restructuring takes place. Levels of 0%, 10%, and 25% have been suggested. Furthermore, if the legislation does contain a threshold requirement, should that percentage include ward councils?

- In enacting this legislation, the committees have the option of making this an amendment to the Constitution or setting it up as a separate statute. If it is part of the Constitution then it will be more resilient against potential challenges to the legislation.

- Whereas restructuring would occur at specific intervals within the term, there is a feeling that a "first crossing" or special restructuring must be allowed upon enactment of this legislation. This special restructuring would not follow the normal rules of restructuring, and some have suggested that the first crossing not carry any threshold at all. This first crossing would take place in order to solve a political problem rather than being a crossing of principle.

The Chair then gave each party the opportunity to state its opinion of the amendment:

ANC
The ANC supports the Bill and feels that it should stand as an amendment to the Constitution. On the issue of the first crossing, the ANC is of the opinion that it should occur 15 days from being signed into law and that there should be no threshold as to the percentage of party members crossing.

Apart from the special crossing, the ANC believes that a 15 day window period for crossing should only be allowed in September during the 2nd and 4th year of the term. Furthermore, the party feels that the normal threshold for crossing or subdividing should be 10% and that the number should include ward councils.

The Constitution stipulates that a crossing must occur "into another party". Thus, the question arises as to what occurs when a person wants to cross into a party that does not exist in that legislature or that has not existed at all? It is clear that one person can be a party, and the IEC has reported that it takes about 90 days to certify a new party. Since the window period is only 15 days this appears to cause a problem. The ANC has not taken an official position on this problem yet, and the party intends to consider the issue further as a caucus before taking a stance.

If a person or a party challenges the notification of the crossing, then the ANC feels the IEC should make the first efforts at drawing a solution to the contest. However, should a party reject the IEC decision and refuse to abide by it, then it should be the responsibility of the courts to sort it out.

DP
The DP supports the amendment generally and is quite pleased with the direction the Bill is heading. Although the DP would prefer that only one restructuring occurs in a term, Dr. Delport believes the party could live with two even-handed, fixed window periods. The DP feels that larger parties have a privilege in regards to the 10% threshold for crossing over, so the DP recommends that crossing require 10% of that party's members or 1% of the entire legislative body.

In regards to crossing into a party not yet formed, the DP joked that perhaps it would be wise to register some extra parties to "shelf" for a later date. The DP then recommended that should a person want to cross into a not yet formed party, that person should at least show that an application for a new party has been placed with the IEC.

IFP
The IFP stated that they are fundamentally opposed to the legislation.

NNP
The NNP generally agreed with the ANC's proposal; however, it remains unsure as to whether the 10% threshold is reasonable and whether Ward Council should be included with other council in formulating a threshold percentage. The NNP also contended that a person wishing to cross the floor does so with forethought, so it is reasonable to expect that a person wishing to cross into an unformed party show a clear intention to form a new party via application to the IEC within the window period.

UDM
The UDM did not wish to add anything new.

ACDP
The ACDP still opposes the legislation.

UCDP
The UCDP also opposes the legislation, but this is the first time it makes its opposition known. The UCDP's rationale is that the legislation benefits dominant parties too much.

Following the pronouncement of party positions, the Chair moved to the current working draft of the Constitution of the Republic of South Africa Amendment Bill. The Committee read through the Preamble and the first three clauses.

Other than an objection by Mr Jeffery (ANC) concerning the formalistic language of the preamble, the preamble, as read, did not cause controversy amongst the members of the committees. The Chair pointed out that in Section 157 of the Constitution, only subsection 2 and 3 are being amended while 4 and 5 remain intact. This point had been misunderstood at a previous meeting, and had caused unnecessary confusion.

Clause 2 Insertion of Schedule 6A in Act 108 of 1996
Item 1 Termination of Council membership
The Chairperson felt that the heading "Termination of Council membership" was misleading and that the words "Loss or retention" would be more appropriate. Furthermore, he suggested that Item 1 acted as the principle whereas Item 2 was the mechanism for retention.

Item 2 Retention of Council membership in event of change of party membership
In Item 2(3), the committee noted an error. Instead of reading "in paragraph (a)(ii)" it should read "in subitem (1)(b)". Also, Mr Jeffery suggested that the word "allocated" be replaced with "occupied by" because a ward councillor's seat is won and not "allocated". The Chair asked the drafter, Mr de Lange, to review the wording.

Item 3 Retention of Council membership in event of mergers, subdivision, and subdivision and merger of parties
Discussion of this provision caused the liveliest debate between the committee persons. Mr Jeffery questioned whether or not Item 3 was truly necessary or if it could be fully contained within Item 2. This suggestion drew the ire of Mr Y Carrim, Co-chair, who reminded the Committees that this point had been debated at length and settled upon. He scolded Mr Jeffery that the time to question the necessity of this provision had passed and that to bring it up again only wasted time and derailed the process.

Mr Jeffery responded that due to time constraints he would support keeping Item 3, but that he still feels Item 2 covers the same ground. The Chair pointed out the small difference between the two provisions. Under Item 2, in order to cross the floor, within a 100-member party, at least 10 members would have to cross the floor; however, of the ten whom leave, they can all cross to different parties. Under Item 3, in the same situation, at least 10 members would have to cross to the same party; otherwise, they could not cross or subdivide. Although several members agreed with Mr. Jeffery's position that Item 2 covered Item 3, all agreed to let it stand as they wanted to pass the bill by Friday and spending time arguing about this provision could side track them.

Having committed to support keeping Item 3, Mr. Jeffery recommended that the last three words of the provision, "and now represent", be omitted. He reasoned that the words do not clarify the purpose of the subsection, but in fact the phrase confuses it. In the case that a member passes away during the process of crossing the floor the "and now represent" wording would cause confusion as to the proper claimant of the deceased member's seat. The committee agreed and the Chair requested the drafter to clarify the wording of that subsection.

Afternoon session
Item 4 Period of application of Items
Adv De Lange (The Chair) said that those parts of the Bill that had referred to one year after an election and one year before an election had been removed and it was now legally spelled out when one can cross. Two clear periods had been spelled out and principle of this was contained in items 4(1)(a) and (b).

Mr Uys (NNP) asked for clarity on the "second year following the date" and asked if it referred to September of this year.

The Chair replied that it applied to the September following an election but that an exception had been made to allow it to happen this year.

Ms Camerer (NNP) questioned whether the clause should refer to a calendar year.

The Chair was of the opinion that it did not apply to a calendar year, in the sense of from the date of the election to that date the following year. He felt that it referred to the September of the year following an election.

Mr Jeffrey posed the possibility of a nine month gap occurring if, for example, the election took place in December and crossing was allowed in September of the following year.

The drafter for the Department of Justice answered that the intention was that 12 months must pass before crossing could take place.

Mr Jeffrey was not convinced that the intention was conveyed as expressed in the clause.

The Chair said that he wanted to look at how the dissolving of a legislature affected crossing. He said that he had looked at it and dissolving was treated the same way as a new election. Clarity in the wording may be required as to when the second year begins. However, the principle had been agreed to so all that was needed was for the wording to say that the second year only begins after the 12 months had elapsed.

Mr Jeffrey asked for clarity on the 12 months issue.

Dr Bouwer, drafter of the Municipal Structures Amendment Bill (Dept of Provincial & Local Affairs), suggested that a reference to the second September or the fourth September would be much simpler.

The Chair suggested the Department try to find a better wording.

Dr Bouwer commented on the word "shall". He felt that it was not plain language and did not fit in with the general wording of the Constitution and the legislation as a whole. He suggested the use of "must".

The drafter, Mr De Lange, agreed with Dr Bouwer and said that he had also had it in mind.

Mr Carrim asked if the effect of dissolving a legislature meant that you had a new legislature in place for five years.

The Chair answered that that was the case for the national legislature but was not sure about municipal legislatures.

Dr Bouwer said that at local government level they reconstituted only for the remainder of the five year period.

The Chair raised sub-clause (2).

Mr Jeffrey suggested substituting the phrase "before the expiry of that period" to "during that period" as it was much simpler. The Chair agreed. He further suggested separating the two concepts contained in the sub-clause, i.e. that crossing might only take place once and secondly, how it may be done.

The drafter, Mr De Lange, said that it could be done but that it would be complicated.

The Chair felt that since sub(b) dealt with a different issue, the two concepts of sub(a) would have to be separated into sub(a)(i) and (ii).

The drafter, Mr De Lange, cautioned that the paragraphs might become difficult to read if sub-paragraphs were added.

The Chair asked the department to see what could be done to keep the two concepts but make it simpler.

Mr Jeffrey asked if a ward councillor represented a party. He said that this clause, sub(3), originally applied to PR councillors. He asked what sub(ii) meant because he believed that once a party member was placed on a council, his position on the list became irrelevant.

The Chair asked if he was sure that a person's position on the list could not be changed during the 15 day period.

Mr Carrim thought that the effect of this would be to close every possible loophole.

Mr Jeffrey explained that the only way to remove a councillor was to remove his membership of the party.

Mr Carrim said that legally, that may be so but that the practical effect was being addressed here.

Dr Bouwer said that Mr Jeffrey was completely correct. Those who were on a party list were not members of a council and so the legislation did not apply to them.

The Chair asked if the members agreed that sub(ii) was not needed. Members agreed.

Mr Jeffrey asked if a ward councillor was also a member of a party.

The Chair replied that he definitely represented a party and Dr Bouwer agreed.

Item 5 Publication of notice by Electoral Commission
The Chair said that the provision was quite simple but was probably the most important clause because it regulated what the representative situation would be henceforth.

He explained that sub(a) states that the notice must show who the representatives are and the proportional representation of the different parties. He noted that the generic term "the composition" had been used but he was not sure whether that should be used or if the term "party and ward representation" would be better.

Dr Delport (NNP) added that he was also troubled by "the composition" and asked if it would not be better to use the term "the party composition" as it had to do with the party affiliation of a member.

Ms Camerer (NNP) felt that the clause was confused because different terms were used interchangeably. All that was necessary to say was that the reconstituted party, as reflected in the notice, would be maintained until the next election.

Dr Bouwer said that he would look at the words used in the Municipal Electoral Act. He said that if the word "composition" was used, he would be comfortable using it in the Bill. He suggested changing the emphasis of the phrase "shall be reconstituted from the date of notice" as it might be read to be given special meaning to the notice.

The Chair said that the clause was trying to provide that from the day of notice, that would be the new composition and that member would belong to that party from that day. However, if a person died during the window period, but they had completed all the documentation, then the seat would still belong to the party they had intended moving to.

Mr Carrim questioned whether the clause made it clear that what was meant was party representation and party representatives.

Mr Jeffrey asked if it was necessary to talk of the "Electoral Commission referred to…" when the clause was being inserted into the Constitution and it was clear that there was no other Electoral Commission. The Chair agreed.

Mr Cassim felt that there was confusion of the words "recomposition" and "reconstitution" and asked if it could be worded in a simpler way since there was so much confusion over it. He suggested use of the phrase "ward representative and ward representation" to make it clear. He felt it important to reword it so that it did not imply that a ward representative was not a party representative.

Mr Jeffrey suggested the use of "ward representatives and the parties they represent" to lessen the confusion.

Mr Uys (NNP) said that there were two aspects to Clause 5. One was to identify the party and the other was to identify the independent ward councillors. He felt that there was a need to distinguish between the two categories.

Mr De Lange, the drafter, suggested that the Committees think first about what they wanted to be on the notice and then reflect that in the clause.

Mr Carrim explained that the reason behind the clause was because of the mixed electoral system and because they were trying to imply that even though they had been elected as an individual, ward councillors were still members of a party and were subject to its rules.

Adv Masutha (ANC) cautioned against the use of new terms that had not been included in the Constitution before.

Item 6 Structures and Committees of Council must be reconstituted
The Chair felt that he preferred the day to start from the time when the period referred to in item 4(1) took place, i.e. the first option. He said that the Committees had broadly agreed that the timeframe for the municipal council to appoint other councils would be 15 days.

Mr Carrim asked what the practical effect would be if people decided to challenge the notification.

The Chair responded that if it were challenged legally, the reconstitution would stand until the court ruled otherwise. However, it may be found that a person asks for an interdict to stop the notification being put into effect.

Mr Carrim said that the IEC takes seven days to give their notification. He questioned what would happen if a municipal council met after two or three days to recompose itself but it was discovered on day seven that for technical or other reasons that the change made on day three was different from what it should be. He asked if there was not a contradiction between the text and the principle

The Chair responded that legally the change would be at the end of the 15 day window period and that is what they were trying to give effect to. His opinion was to instruct the IEC to give a separate notice to each municipality so that a challenge to one did not affect the others. He said that de jure the change would take place after the 15 days but de facto the it would happen when the notice goes out. He asked Adv De Lange to draft two options: one that starts from the end of the notice period for 40 days for the local and municipal councils and 20 days for the district councils; and a second one that starts from the notice period for 30 days and 15 days for the district council. The principle would remain the same for both but he urged members to consider the options.

Item 7
The Chair explained that the clause provides for individuals to move or for parties to merge and said that the Committees would discuss on the following day where to include the option of subdivision. He requested the drafter, Mr De Lange, to include the option of subdivision.

Meeting adjourned.

Appendix:
REPUBLIC OF SOUTH AFRICA

CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL

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

(Draft)

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

(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B16 - 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.

__________________________________________________________________________

 

BILL

To amend the Constitution of the Republic of South Africa, 1996, 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; and to provide for matters connected therewith.

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:—

 

Amendment of section 157 of Act 108 of 1996, as amended by section 2 of Act 87 of 1998

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.".

 

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

Termination of Council membership

 

1. A councillor who, 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 the Municipal Council concerned, ceases to be a member of that Council.

 

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 [was elected from the party list] 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 [was elected to] represents a ward in that Council, remains a councillor for that ward, if that councillor—

(i) was nominated by a party as a candidate in the ward election [used on the part of the ballot paper for wards the same distinguishing mark or symbol as a party which contested the election,] and ceases to be a member of the original party and becomes a member of the new party, whether the new party had participated in an election or not, or ceases to be a member of the original party and does not become a member of another party; or

(ii) [did not use on the part of the ballot paper for wards the same distinguishing mark or symbol as a party which contested the election] 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,

if the councillor referred to in subitems (1)(a) and (2)(b)(i) further, whether by himself or herself, or together with one or more other councillors who, during a period referred to in item 4(1)(a) or (b), ceased to be members of the original party, represents 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 paragraph (a)(ii) must be regarded as having been allocated to—

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

(b) that councillor if such councillor has not joined 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 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 the new party had participated in an election or not, if the members of a subdivision leaving the original party represents 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 have merged with or joined and now represent.

 

Period of application of items 2 and 3 and further requirements

 

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

(a) for a period of fifteen 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 fifteen 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 shall not apply during the year of the commencement of this Schedule.

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

(a) a councillor may change membership of a party, become a member of a party, or cease to be a member of a party, only once, before the expiry of that period, by informing an officer designated by the Electoral Commission referred to in section 181(1)(f), in writing, of his or her decision to join another party or to join a party or to cease to be a member of any party, and if that councillor has changed membership of a party or has become a member of a party, by submitting to the officer concerned written confirmation from the new party that he or she has been accepted as a member of that party; and

(b) a party may merge with another party or subdivide into more than one party or subdivide and any one subdivision may merge with another party, only once, before the expiry of the period referred to in subitem (1), by informing an officer designated by the Electoral Commission, in writing, that it has merged with another party or subdivided into more than one party or subdivided and merged with another party, and by submitting to the officer concerned written confirmation from the new party—

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

(ii) 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 Municipal Council;

(ii) change such councillor's position on a party list relating to that Municipal Council; or

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

without the written consent of the councillor concerned.

 

Publication of notice by Electoral Commission and reconstitution of Council

 

5. (1) The Electoral Commission referred to in section 181(1)(f) must, within seven days of the expiry of a period referred to in item 4(1), publish a notice in the Provincial Gazette concerned, which must reflect the new—

(a) party representation and party representatives; and

(b) ward representation,

in any Municipal Council whose composition has changed as a result of any conduct in terms of item 2 or 3.

(2) The composition (party and ward representation) of a Municipal Council, as reflected in a notice referred to in subitem (1), shall be reconstituted from the date of such notice and shall be 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.

 

Structures and Committees of Council must be reconstituted

 

6. Within 30 days of the expiry of a period referred to in item 4(1)—

Option: 6. Within 30 days of the publication of a notice referred to in item 5(1)—

(a) all the structures and committees of a Municipal Council referred to in item 5(1) must be reconstituted in accordance with applicable law; and

(b) a Municipal Council which appoints members of another Municipal Council, as contemplated in section 157(1)(b), must [appoint such members anew] reconstitute its representation in that other Council in [terms of] accordance with national legislation [to represent the appointing Council].

 

Transitional arrangement in respect of the 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

 

7. (1) [For a period of] During the first 15 days [from] 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 had 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) [used on the part of the ballot paper for wards the same distinguishing mark or symbol as a party which contested the] 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 had 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) [did not use on the part of the ballot paper for wards the same distinguishing mark or symbol as a party which contested the] was not nominated by a party as a candidate in the ward election, may become a member of a party, whether that new party had participated in an election or not,

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

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

(bb) that councillor, if such councillor has not joined a or another party; and

(c) any political party which is represented in a Municipal Council may merge with another party, whether that party had 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 merged party which they now represent.

(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) 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.".

 

Short title

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

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