Crossing the Floor legislation: deliberations

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE; PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE: JOINT MEETING
6 June 2002
CROSSING THE FLOOR: FINAL DELIBERATIONS

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

Documents handed out:
Version as after 6/6 of B16 (Appendix 1)
Version as after 6/6 of B22 (Appendix 2)
Loss or Retention of Membership of National and Provincial Legislatures Bill [B -2002] (Appendix 3)
Municipal Structures Amendment Bill - third draft

SUMMARY
The Committees deliberated on the four Bills relating to 'crossing of the floor', beginning with the Constitutional Amendment relating to municipal councils. Most amendments made to the Bill were technical. The DA announced that they would move to include, in addition to the 10% threshold, a threshold of 1% of the total number of seats - whichever was the lower.
Item 5A, reflecting the requirements of the notice to be issued by the IEC, would be inserted into national legislation, rather than the Constitution itself. Concerned was voiced over the implication of Item 6: district councils would have to be re-elected every time crossing occurred at municipal level.

When the meeting was adjourned late in the evening the Committee had completed the following. The constitutional amendments on local government were completed and only two outstanding issues remained. Item 6 needs to be redrafted because it seemed contradictory. The second issue is that the equivalent of subsection 12 has to be cleared with the ANC caucus.

In respect of the NCOP, everything has been done; the amendments merely have to be revisited.

With respect to the Loss or Retention of Members of National and Provincial Legislature Bill, certain sections were moved around. The Committee has said that the provisions on subdivision must be added under the transitional arrangements and the issues of parties must be rewritten.

MINUTES
Adv De Lange (The Chair) stated that the position of the ANC was that the Bills be passed as a package with the thresholds not applying for the first 15 days after the Bills come into operation. The NCOP had also made an application to fast-track the process and they would still vote on the 14 June, although he indicated that it may occur at a later date.

Constitutional Amendment Bill (municipal councils)
The Chair stated that the Committee would look at the Long Title of the Bill after the provisions had been discussed. No changes were made to the preamble. He explained that the possibility of mentioning the transitional arrangement in the preamble had been rejected because it had been thought wrong to mix up the different concepts. No changes had been made to the first clause of the Bill. 

Schedule 6A
Item 1: Loss or retention of Council membership
The Chair noted that the heading of item 1 had changed and that sub(2) had been divided into two subparts to reflect the different options.

Mr Carrim felt that the phrase "a councillor not representing a ward" could be replaced by "councillor elected from a party list". The Chair explained that the wording could not work because if a person crossed for the second time during a term, he would not have been on the party list of the party to which he had originally crossed.

Item 2: Retention of Council Membership in event of change of party membership
The Chair noted that the heading and body of item 2 remained the same. The only change was to sub(3), which allows for a ward represented by a councillor to be allocated to a party or acquired by that councillor. No changes to principle had been made to the rest of the item.

Item 3: Retention of Council membership in the event of crossing
The Chair remarked that the heading of the item had changed. Technical amendments made were that "the new" had been replaced with "that" and "joined and now represent" replace with "subdivided into".

Dr Delport (DP) referring to the 10% threshold in sub(1)(b), announced that at an appropriate time the DP would move to include "or not less that 1% of the number of seats on the council, whichever is lower" in both Constitutional Amendments. It was felt that the bigger parties were advantaged by the system so that, for example, if one of the 20 people required to move in a big party chose not to do so, the entire crossing would fail. He felt that the provision as it stood favoured the big parties and was therefore not even handed in its application. He felt that the requirement of either 10% of the members of a party or 1% of the total number of seats would be appropriate.

The Chair asked if the requirement would apply only to future crossings and Dr Delport replied that it would. The Chair said that he would allow the amendment to be moved and voted on the following day.

Mr Jeffrey  was of the opinion that effectively the amendment would mean that there was no threshold in a legislature as any body consisting of 100 member or less would only therefore require one person to move. Aside from the metro councils most councils consisted of only 80 members. He also felt that it was quite late for an amendment of this nature.

Mr Carrim felt that 10% was not an insurmountable threshold and that in practice a lot of parties in municipal councils consisted of only one member.

Ms Borman (DP) said that it was the principal that was wanted in the Constitution.

The Chair said that although he understood the argument put forward, it was important to remember that government exists at three levels and the ANC was not necessarily the biggest party in all the legislatures.

Item 4: Period of application
The Chair explained that as Mr De Lange, legal drafter for the Justice Department, had found that the word "year" had different meanings in South Africa, sub(1)(b) had been included into the item to define it as "a period of 365 days". He noted that sub(2) and (3) had been subdivided to make the wording clearer.

Dr Delport asked, in practical application, how one would know who the "officer designated by the Electoral Commission" is.

The Chair responded that the IEC would definitely identify someone, but this was one of the issues that needed to be discussed with the IEC. He continued that sub(3)(c) had removed the reference to "party list".

Item 5: Composition of Council maintained until election or reconstitution
The Chair explained that item 5 had been changed to make the legal position clear. The clause had been drafted so that the publication of the notice would not have any legal status as the crossing would have a legally binding effect from the end of the 15 day window period. He noted that as the notice served no legal purpose, a suggestion had been made that the requirements pertaining to it (item 5A) be put in the Structures Act or the IEC Act. Item 5A referred to "the Gazette" rather than the Provincial Gazette because not all provinces had their own Gazettes.

Mr Jeffrey suggested that the word "party" be included in clause 5 so that the clause would read "the party composition of a Municipal Council". The Chair agreed.

Dr Bouwer, drafter: Department of Provincial & Local Government, felt that the item was well drafted because it provides a definition of recomposition within a Constitutional Amendment and enforces principles of the Structures Act.

Ms Borman inquired why councils needed to be "reconstituted".

The Chair responded that it was because when a person crossed the floor he took his seat with him thereby causing changes to the proportionality of the council. The clause was a trigger mechanism by which councils could reconstitute their various structures, e.g. replacing the mayor or Speaker where necessary. He emphasised that reconstitution would only occur in those councils were crossing had taken place.

Dr Delport did not feel that provision needed to be made for reconstitution as he felt that the effect would be dealt with by means of the rules usually governing the council.

The Chair felt that legally the provision was vital because it counters the element of proportionality. The law on elections remains but the clause was needed to "trump" the proportionality requirement in the Constitution. He stressed that it was important not to look at reconstitution on its own but to view it in light of items 2 and 3. The Committees agreed to item 5 as amended.

Dr Bouwer suggested inserting item 5A into the Constitution as he felt that it would be more strongly protected. The Chair rejected the argument as he felt that there was nothing in item 5A that required that level of protection.

Mr Carrim citing item 5A(b), referred to the phrase "name of, and party represented by" and inquired if it also referred to ward councillors as they also represented a party.

The Chair agreed and asked Mr De Lange to reword the item so that it did not duplicate what was contained in item5A(c).

Item 6: Structures and Committees of Councils must be reconstituted
Dr Bouwer explained that sub(a) requires all municipal councils concerned to be reconstituted while (b) provides clarity for the district councils to know who its members are and is not related to the internal structure as a councils own composition could never be considered a structure. Item 6(b) forces a local council to reappoint their delegation to the district council. The district council was prohibited from holding meetings related to crossing until reconstitution takes place.

Mr Carrim said that he did not realise that crossing would result in the re-election of the district council. He felt that this was a significant impact as the intention of the legislature had originally been to build up strong district councils over a period of 10 to 15 years. He strongly felt that the dilemma needed to be resolved.

The Chair responded that the issue could stand-over for discussion until the following day. He agreed that it was strange that the Act would work in that way and could not understand why it would have greater ramifications for a district council than a subcouncil.

Mr Carrim replied that there were substantial differences between a subcouncil and a district council and again stressed that the implications needed to be fully understood.

The Chair asked that the item continued to be drafted.

Item 7: Interim arrangement
The Chair inquired as to why the heading had been altered from "transitional arrangement" to "interim arrangement".

Mr De Lange answered that that a transitional change implied that something was going to happen to change the system, while an interim change was more of a momentary change.

Ms Chohan-Kota (ANC) felt that it was more of a transitional arrangement than an interim change because a new system would exist afterwards.

The Chair decided to use the word "transitional" and explained that option (c), relating to subdivision, would be included.

Evening session
Mr Carrim stated that the only remaining issue concerned the reconstitution of subcouncils. The ANC supported the formula of A over B times C. Whichever formula was chosen would be implemented by means of a mechanism put into a by-law. All the amendments were required to ensure was that the mechanism used would be consistent with the Constitutional principles of fairness and democracy.

Option one, in the amendments, provides for a mechanism to be implemented by means of a by-law, and consistent with the two principles mentioned, that will shape the composition of the subcouncil. The second option, utilised at the time that general elections for local government are held, makes use of a relatively objective formula in deciding how to constitute the subcouncils. However, if crossing were to take place, the original formula could not be used because it had been based on voting results at the time of the general election and furthermore, because a new party may exist after the crossing that did not exist at the time of the election. He summarised the two options: option one lets the by-law decide while option two allows the formula to decide with the by-law only operating when crossing occurs. The ANC decided to opt for option 2.

He pointed out that a structure is different from a committee. Option one cannot be chosen because the subcouncil would be reduced to just another a committee of the council. The distinction between a committee and a subcouncil should be retained. It should also be noted that option 2 might not be viable, in which case option one would be opted for.

Option two sets out the formula applied when general elections held - similar to the formula contained in the Municipal Structures Act 1998. However, following a decision by the Cape Town and Durban metropolitan councils to set up subcouncils it was found, during their efforts to set up the subcouncils that the formula was inadequate. To avoid the problems encountered, the formula has been adjusted to the one contained in the Amendment and the is the same as the one that has been gazetted. The formula, to his understanding, has worked in Durban and Cape Town.

Dr Bouwer explained the principles. The first principle has to be contrasted with the existing system. The size of the subcouncil is determined upfront. Thereafter it is known how many seats to allocate to the parties. The system proposed by the amendments disregards the determination of the size of the council and allocates PR seats first.

Ms Borman (DP) stated that the DP would prefer to go with the second option. However, she wanted to introduce a new option. Having constituted the subcouncil after a general election, was it not possible to consider, after the crossing, for there not to be any reallocation? Rather, allow all the changes to happen and then allow the subcouncil the option of reappointing chairpersons and such.

Mr Carrim clarified the DP's position in that they agreed to the formula but did not want it to be put in the by-law. Instead they wanted, when crossing occurred, for the subcouncil not to be tampered with except that the person having crossed would now be sitting with another party. He asked for responses to that.

Mr Swart (ACDP) had no problem with that in principle but the reality was that a council could simply change boundaries and dissolve the council if given the discretion to do so. Putting the mechanism in place obliges them to follow the mechanism.

Mr Uys asked for greater clarity on Ms Borman's proposition.

Ms Borman explained that initially a formula would be applied and the subcouncils would be put in place. Crossing then takes place and the subcouncil stays the same. The only change would be a "swing in the parties".

Mr Carrim asked for motivation of the option.

Dr Delport (DP) replied that it was because one could not foresee what would happen during the crossing. The proposition was that it a person crossed at council level, the crossing would then be reflected at subcouncil level.

Adv De Lange felt that in terms of practicalities it was an easy solution. He felt that the subcouncil was a link in that it reflected the voting that had taken place in a particular area and he was concerned that that principle would be eroded and that the subcouncil may end up being ineffective. He felt that a formula obliging the council to act in terms of democracy would force the council to look at the issues of representation because of the uncertainty regarding crossing. The council would have to apply their minds to give effect to the principles.

Mr Carrim turned to Option 2 in the third draft of the proposed amendments. He explained that it talks of a method or a mechanism for the appointment of councillors referred to in Section 63(1)(b) that complies with Part 2 of Schedule 4.  Part 2 refers to the objective formula that applies when there is a general election for local government. He asked if there were any problems with the formula.

Mr Swart (ACDP) felt that the designation of councillors for metropolitan councils was a general principle that should apply to Part 1 as well as Part 2.

Mr Carrim suggested that it be included that the Minister must provide guidelines to assist with the mechanisms so that the mechanisms for each council would not be disparate. He asked if that could be included in the Schedule.

Mr Bouwer replied that since it was specifically stated that the mechanism was not binding, such a provision should be incorporated into the Structures Act.

Adv De Lange said that he did not have a problem with the concept that after an election Part 1 would be used while after crossing Part 2 would be used. However he was concerned about the way it was drafted. He felt that the amended clause 63(1)(b) should refer to subclause (2) rather than "Part 1 of Schedule 4 or the method/mechanism referred to in section 62(1)(cA), as the case may be" as sub(2) made the position very clear.

Mr Carrim asked why the by-law mechanism could not be used.

Dr Bouwer replied that the mechanism is for allocating the seats to parties, which presupposes that one knows how many seats there are to allocate. What is problematic is the situation regarding the existing councils and their current size. He had drafted a possible solution so that the original unamended section would apply until the following elections. As a result of the amendment the additional allocation of councillors must be done in terms of Part 1. The policy question lay in deciding whether to continue with the system as it stands or to reallocate the seats of the subcouncils.

Mr Carrim felt that it was a technical problem of finding the representation that was wanted. He asked Dr Bouwer for motivation for his third draft.

Dr Bouwer said that the major difference between the old system and the new concerned the formula that was used. The new formula has the effect of allocating all the PR councillors in a council to a subcouncil. If you do not have the number of seats, you do not know how many seats to allocate. If the old system was then built in, it would have the result of reducing the size of the subcouncils.

Mr Swart felt that there were a number of elements that had been lost in trying to find a formula that works. The first issue was whether metropolitan councillors should allocate all PR councillors to the subcouncils. The other issue was the determination of the number of PR councillors to the subcouncil - should that be left to the council or should the formula decide.

Mr Uys felt that the only solution was to allocate the seats equally but using Part 2 to allocate the different parties.

Mr Carrim agreed but felt that there was resistance from the Department. He said that the Committee would have to subdivide into smaller Committees and finalise the issues.
Moving on to the Long Title, he noted that it had changed. The preamble, he said, would change. Clause 1 had been rejected and replaced.

Dr Bouwer added that the clause would be subject to the reservations regarding reconstitution.

Mr Carrim asked if there were any comments concerning clause 2. There were not. Moving on to clause 3, he asked if there were any questions.

A Member asked if it was clear that the seven days referred to in clause3(3)(b) was meant to take place between days sixteen and thirty one and not during the fifteen day window period.

Mr Carrim felt that it was made clear by the inclusion of the phrase "expiry of the period". Dr Bouwer concurred.

Adv Masuta was concerned about the possibility of the speaker of a council resigning and there being no way of thereafter convening a meeting.

Adv De Lange asked Dr Bouwer who would take over the speaker's duties should the speaker be unavailable.

Dr Bouwer replied that the Act allows for an acting Speaker to be elected by the council.

Adv De Lange asked what would happen if that were not done.

Dr Bouwer responded that it would form part of the internal procedures regulated by the by-laws. He assumed that provision had been made for such an eventually because in terms of the same section, the Speaker is obliged to call a meeting when the majority of councillors request it. He felt that it was an internal matter and that was why it was left open. He reminded Adv Masuta that one of the problems experienced when the Act was still a Bill was the constitutionality of overly imposing on the dynamics of local government.

Adv Masuta suggested providing for the council and not the Speaker to convene the meeting so that none of the problems discussed could arise.

Mr Carrim did not feel that that was a practical solution. 
He raised clauses 6, 7 and 8 for discussion. There was no comment. He raised clause 9.

Ms Borman asked if the clause, relating to the submission of the list of candidates, did not necessarily replace what was in the Structures Act.

Adv De Lange said that the issue had been discussed already when item 5 of the Constitution had been discussed. The other point was that a clause must be included that would enable new parties in a municipality to hand in a list.

He pointed out an additional potential problem in 12(1), which provides for the registering of a party in a particular municipality. He was concerned that the party might have to register again at any other municipality that it becomes a part of.

Dr Bouwer suggested removing the word "particular", so that it would read " in respect of a municipality or municipalities".

Mr Jeffrey (ANC) questioned what would happen if the party were not able to meet the requirements of registration.

Dr Bouwer answered that if the precondition for the constitutional arrangement had not been complied with then they had not crossed the floor.

Loss or Retention of Membership Bill
Concerning subclauses (3) and (4), Adv De Lange suggested the inclusion of a provision requiring members to register new parties in terms of applicable law. In effect he said that clause 5 was creating a deeming provision, until they register within a certain period.

Dr Delport suggested including, under the requirements for crossing, some sort of certification that the member crossing has been accepted into the new party.

Adv De Lange summarised that subclauses(3) and (4) would provide for registering of a new party, in terms of applicable law. Since the clause would only be applicable to September of the following year, sufficient time was left in which to amend the law to provide for that.  Regarding sub(5), he said that it would be deemed that the party exists but that they may not participate in the next election in case of dissolution in the interim, and that in the period provided for in applicable legislation they must register as a party. He stressed that the legislation must be passed quite quickly to make that period short.

Adv de Lange said that he could not understand why subsection 11 is included here but moved on any way.

He said that subsection 12 was there already and there is no problem with it but asked members whether they objected to putting it in local government. He wanted to hear the opposition views before taking it to his party.

Dr Delport said that he had no objection because uniformity is needed.

Ms Camerer also had no objection.

Summarising what had been done Adv de Lange said that the constitutional amendments on local government had been gone through and there are only two outstanding issues. The first is that item 6 needs to be redrafted because it seemed contradictory. The second issue is that the equivalent of subsection 12 has to be cleared with the ANC caucus.

In respect of the NCOP, everything has been done. Just the amendments have to be revisited.

With respect to the Loss or Retention of Members of National and Provincial Legislature Bill, certain sections were moved around. The Committee has said that the provisions on subdivision must be added under the transitional arrangements and the issues of parties must be rewritten. Other than that there is nothing outstanding.

On local government Adv de Lange said that all the problems had been sorted out and that he would sit down with Mr Carrim and draft something.

Adv De Lange asked Mr de Lange what the situation was with the resolutions.

Mr de Langen replied that he had not started it yet.

Adv de Lange said that everything will be finalised tomorrow. The resolutions will be tried to be finished tomorrow but that the amendments are the priority. He added that strictly speaking the resolution was just for the ATC.

A Member asked if there were substantial issues in the resolutions.

Adv de Lange replied that the resolution does deal with substantial issues. The first is the regulations regarding money for parties that must be looked at. The second issue is that that political party legislation must be reviewed. Also there is a suggestion that the IEC should develop a form that needs to be filled in when members cross the floor. This is to have uniformity in crossing. He added that it was just a matter of someone sitting down and writing it up.

The Chair adjourned the meeting but asked the ANC to remain. He asked the ANC members if they had a problem with Ms Ghinwala's comment about including in local government what is contained in provincial and national government that a Section 76 bill can amend the schedule.

The ANC members did not have a problem with that.

The meeting was adjourned.

Appendix 1:
REPUBLIC OF SOUTH AFRICA

CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL

 (Draft)

(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B16   ‑ 2002]

_____________________________________________________________________

REPUBLIEK VAN SUID‑AFRIKA

WYSIGINGSWETSONTWERP OP DIE GRONDWET VAN DIE REPUBLIEK VAN SUID‑AFRIKA

 (Konsep)

(MINISTER VIR JUSTISIE EN STAATKUNDIGE ONTWIKKELING)

[W16   ‑ 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

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 at 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 part'. Which nominated that councillor as a candidate in the ward election: or

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

(a)        not representing a ward, who 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 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 election and-
(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 had participated in an election or not,

if the councillor referred to in subitems (1)(a) and (1)(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 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 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 with which they have merged with or into which they have subdivided.

 

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 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

(b)        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 of the commencement of this Schedule.
(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 therof in writing, 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 may 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-eIection or reconstitution in terms of Schedule

5.         After the expiry of a period referred to in item 4(l)(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(l)(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 a Municipal Council referred to in item 5, other than the appointments contemplated in paragraph (a), must be reconstituted in accordance with applicable law.

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)            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 new 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 another 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, 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 with which they have merged or into which they have subdivided.

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

Short title

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


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; 1:0 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 ₂₆th 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 _{27th line}, to omit the words from "AND WHEREAS" up to the word parties" in the _29th 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:

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 (3(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 n 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

(b)        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 establish

(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 estabished 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.

(2)        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 sect or 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 GA 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 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 clays 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 substitute for Schedule 4 to the Structures Act:

"SCHEDULE 4

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

metropolitan sub councils

 

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) -

A X C
B

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

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

C            represents the total number of seats allocated to each 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

3.         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 1 998

11.        The Table of Contents of the Structures Act 5 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 GA 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 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 three months after the expiry of such a 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 seat5 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 or 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

REPUBLIC OF SOUTH AFRICA

LOSS OR RETENTION OF MEN4BERSHIP OF NATIONAL AND PROVINCIAL

LEGISLATURES BILL

Membership Bill 6/6/02

GENERAL EXPLANATORY NOTE:

I           I            Words in hold type in square brackets indicate omissions from existing

enactments

_______            Words underlined with a solid line indicate insertions in existing enactments.

BILL

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) or 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 item 23A of Schedule 2 to the Constitution of the Republic of South Africa, 1993, provides for an additional ground for the loss of membership of the National or provincial legislatures;

AND WHEREAS item 23A of Schedule 2 to the Constitution of the Republic of South Africa, 1993, furthermore provides 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-

- 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 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 membership₁ 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 or I 994,

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(9); 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 seat 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 U

legislature in event of member joining another party. mergers bet'veen parties.

subdivision of parties or merger and subdivision of parties

23A. (1) A person [loses membership] who is a member of a legislature to which this Schedule applies [if that person] and who, other than in accordance with subitem (3), (4) or (5), 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) [Despite subitem (1) any] Any existing political party may at any time change its name.

[(3) An Act of Parliament may, within a reasonable period after the new Constitution took effect, be passed in accordance with section 76(1) of the new Constitution to amend this item and item 23 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.

(4) An Act of Parliament referred to in subitem (3) may also provide for—

(a) any existing party to merge with another party; or

(b) any party to subdivide into more than one party.]

(3)  (a)            Subject to subitems (5) and (6), 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 had 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 (6)(a)(i) ceased to be a member 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.

(4) (a) Subject to subitem (5) and (6), 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 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 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 have merged with or subdivided into.

(5) During the first 15 days immediately following the date of 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 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 have merged with.

(6)  (a)      The provision of subitems (3) and (4) 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.

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

(c)            During a period referred to in subitem (5) 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)                 party may merge with another party, or, if applicable-

(aa)   subdivide into more than one party; or

(bb)       subdivide and any one subdivision may merge with another party only once 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, as well as that it 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.

(7)              The Speaker of a legislature whose composition has changed as a result of any conduct in terms of subitem (3), (4) or (5) must, within seven days after the expiry of a period referred to in subitem (5) or (6)(a)(i) or (ii), publish a notice in the Gazette which must reflect-

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

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

(8)              After the expiry of a period referred to in subitem (5)(a) or (6) (a) (i) or (ii), the composition of a legislature contemplated in subitem (6) is maintained until the next election of that legislature or until the composition of the legislature is reconstituted in accordance with subitem (3) or (4).

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

(10)            A party which has not been registered in terms in terms of any law applicable to the registration of political parties, will be regarded as a party for purposes of subitems (3), (4) and (5), but no party may participate in an election in respect of legislature to which this Schedule applies unless that party has registered as a political party in accordance with applicable law.

(11)            Until the legislation contemplated in-

(i)         section 47(4) of the new Constitution is enacted in respect of the National Assembly; and

(ii)         section 106(4) of the new Constitution is enacted in respect of the provincial legislatures,

the provisions of this item and item 23 shall apply in respect of vacancies, loss or retention of membership, mergers between parties or subdivision of parties or subdivision and mergers of parties in respect of a legislature to which this Schedule applies.

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

Short title

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