Third and Fourth Constitutional Amendment Bills, 2002: voting

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Justice and Correctional Services

18 February 2003
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Meeting report

JUSTICE & FINANCE PORTFOLIO COMMITTEES
19 February 2003

THIRD AND FOURTH CONSTITUTIONAL AMENDMENT BILLS, 2002: VOTING

Chairperson:
Mr J de Lange (ANC)

Relevant Documents:
Constitution of RSA Third Amendment Bill [B33-2002]
Proposed Committee Amendments to Constitution Third Amendment Bill: Draft 3
Final Committee amendments to Constitution Third Amendment Bill
Constitution of RSA Fourth Amendment Bill [B69-2002]
Constitution of RSA Fourth Amendment Bill: Portfolio Committee Amendments (Appendix 1)
Committee Resolution on Constitution Third Amendment Bill, 2002 (Appendix 2)
Memorandum on Constitution Third Amendment Bill, 2002 (Appendix 3)
Memorandum on Constitution Fourth Amendment Bill, 2002 (Appendix 4)

SUMMARY
Both the Third and Fourth Constitutional Amendment Bills of were passed with amendments. They will be renamed the First and Second Constitutional Amendment Acts of 2003.

MINUTES
Third Constitutional Amendment Bill, 2002: Voting
The Finance Portfolio Committee was present for voting on this Bill. The Chairperson reviewed the committee's proposed amendments. He then proposed voting clause by clause.

The results were:
Clause 1: 15 for; DP abstaining
Clause 2: 15 for; DP abstaining
Clause 3: 16 for
Clause 4: 14 for, IFP against; DP abstaining
Clause 5: 15 for; DP abstaining
Clause 6: 15 for; DP abstaining
The final vote on the Bill as a whole was 15 for; 1 against.

Fourth Constitutional Amendment Bill, 2002: Voting
The Chairperson reviewed the amendments as proposed by this committee. He then proposed voting

Dr Delport (DP) commented that he would like to see the window period shortened to seven days and he would be pushing for it in the future. He added however that he supports the Bill and will vote for it.

The final vote on the Bill as a whole was 13 for; 3 against.

Appendix 1:
PORTFOLIO COMMITTEE AMENDMENTS TO CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA FOURTH AMENDMENT BILL [B 69-2002]

(As agreed to by the Portfolio Committee or Justice and Constitutional Development (National Assembly)) [B 69A-2002j

CLAUSE 1
On page 4, in line 7, to omit "Schedule 6B" and to substitute "Schedule 6A".

CLAUSE 2
1. On page 4, in line 19, to omit '"Schedule 6B" and to substitute "Schedule 6A".

CLAUSE 3
1. On page 4, in line 23, to omit "Schedule 6B" and to substitute "Schedule 6A".

CLAUSE 4
On page 4, in line 34, to omit "Schedule 6B" and to substitute "Schedule 6A".

CLAUSE 6
1. On page 4, in line 38, to omit "Schedule 6B" and to substitute "Schedule 6A".
2. On page 4, in line 39, to omit "Schedule 6A" and to substitute:
Schedule 6, the existing Schedule 6A becoming Schedule 6B
3. On page 4. in line 40, to omit "Schedule 6B" and to substitute "Schedule 6A".
4. On page 6, in line 16, to omit "that member has joined" and (0 substitute "the member represents".
5. On page 6, in line 35, to omit "items 2" and to substitute "The provisions of items
2"
6. On page 8, in line 12, after "parties" to insert "is regarded as a party for the purposes of this Schedule, but such a party".
i. On page 8, in line 44, to omit "which that member has joined" and to substitute "of which that member has become a member".
8. On page 10, in line 1, to omit "Item 4(3)" and to substitute "The provisions of item 4(3)".
9. On page 10, from line 4, to omit subitem (3).

CLAUSE 7
1. On page 10, in line 26, to omit "Schedule 613" and to substitute "Schedule 6A".
"Schedule 6A".

 

NEW CLAUSE
1. That the following be a New Clause:

Amendment of other laws
9 The laws mentioned in column 2 of the Table are hereby amended to the extent indicated in column 3 of the Table:


Table

Act No

Short title

Extent Amendment

177 of 1998

Local Government : Municipal Structure Act , 1998

Amendment of sections 26,29,

63, 66, 93A, 9313, item 10 of
Schedule 1, item 4 of Schedule
2 and the Table of Contents by
the substitution for the words
"Schedule 6A to the Constitution", wherever they occur of the words "Schedule6B to the Constitution".

20 of 2002

Local Government: Municipal

Structures Amendment Act 2002

Amendment of section 12 by
the substitution for the words
Schedule 6A to the
Constitution", wherever they
occur, of the words "Schedule6B to the Constitution".


CLAUSE 9
1. On page 10, in line 43, to omit "Fourth".'
2 On page 10, in line 44, to omit "2002" and to substitute "2003".

Appendix 4:
Report of the Portfolio Committee on Justice and Constitutional Development on the Constitution of the Republic of South Africa Third Amendment Bill [B 33 20021 National Assembly sec 74), dated 19 February 2003:
The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Constitution of the Republic of South Africa Third Amendment Bill [B 33 -2002] (National Assembly sec 74), referred to it and classified by the Joint Tagging Mechanism as a section 74 Bill, endorses the classification of the Bill and reports the Bill with amendments [B 33A 2002].

The Committee wishes to report further as follows:
1.Section 1 39(3) of the Constitution presently grants the national executive a discretion to table national legislation regulating the process of intervention by a provincial executive in local Government in terms of section 139. The Committee. during its initial deliberations on the Bill. considered the possibility of amending section 1 39(3) 50 as to make the enactment of such national legislation compulsory. Having noted that the national legislation contemplated in section 139(3) has already been introduced in Parliament and that it is presently being considered by the Portfolio Committee on Finance. the Committee deemed it appropriate not to amend section 1393) as ori2inal Iv considered.

2. Section 100)3) of the Constitution contains provisions similar to that of section 1 39(3) in that it grants the national executive a discretion to table national legislation regulating the process of

intervention by the national executive in provincial administration. However, the Committee was informed that no legislation contemplated in section 100(3) has been drafted or is in the process of being drafted.

3. The Committee has, for purposes of consistency with section
139(3). decided not to amend section 100(3) so as to make the enactment of the national legislation contemplated in that section compulsory. However. the Committee would like to recommend that the Minister of Finance be requested to submit a report to the National Assembly, within three months of the adoption of this Report by the National Assembly-

(a) indicating all steps he has taken or will be taking in order to table the national legislation contemplated in section 100(3): or

(b) if he does not envisage tabling such legislation. providing motivation for this decision.

Report to be considered.

2. Report of the Portfolio Committee on Justice and Constitutional Development on the Constitution of the Republic of South Africa Fourth Amendment Bill [B 69-20021 (National Assembly-sec 74). dated 19 February 2003:
The Portfolio Committee on Justice and Constitutional Development, ha\'in2 considered the subject of the Constitution of the Republic of South Africa Fourth Amendment Bill [B 69-20021 (National Assembly-sec 74), referred to it and classified by the Joint Tagging Mechanism as a section 74 Bill, endorses the classification of the Bill and reports the Bill with amendments [B 69A-20021.

Appendix 3:
MEMORANDUM ON THE OBJECTS OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA THIRD AMENDMENT BILL, 2002

1. OBJECTS OF BILL

The objects of the Bill are—
(a) firstly, to amend the Constitution so as to—
* ensure that the procedures envisaged in section 76(1) of the Constitution
are followed in respect of all Bills referred to in section 76(4)(b) of the
Constitution which include even a single provision affecting the financial
interests of the provincial sphere of government, thus avoiding the
classification of such Bills as ''mixed'' Bills;
* simplify the process of review by the National Council of Provinces (the
''NCOP'') where national executive interventions in provincial affairs
have taken place;
* simplify the process of review by the NCOP where provincial executive
interventions in local affairs have taken place; and
* address financial crises in municipalities; and
(b) secondly, to change the name of the Northern Province to Limpopo Province.

2. PROVISIONS OF BILL

2.1 Clause 1

The proposed amendment of section 76(4)(b) seeks to avoid the splitting of a Bill
dealing with legislation contemplated in that section into sections 75 and 76 Bills, where
some of the provisions of such a Bill affect the financial interests of provinces and others
not. The effect of the proposed amendment would be that all Bills envisaged in Chapter
13 of the Constitution that contain even a single provision affecting the financial
interests of the provincial sphere of government, will in future have to be dealt with in
accordance with the procedure set out in section 76(1) of the Constitution. However, this
amendment does not affect the parliamentary procedure for money Bills which is
regulated by sections 76(6) and 77(2) of the Constitution.

2.2 Clause 2
The proposed amendment of section 100 seeks to simplify the review process by the
NCOP of an intervention by the national executive in a province in terms of that section.
The proposed amendment further relaxes the time frames within which such an
intervention lapses. It also seeks to grant the NCOP a discretion to review the
intervention on a regular basis.

2.3 Clause 3
Section 104(2) of the Constitution provides that the legislature of a province, by a
resolution adopted with a supporting vote of at least two thirds of its members, may
request Parliament to change the name of that province. On 12 February 2002 the
Legislature of the Northern Province resolved to request Parliament to change the name
of that Province from ''Northern Province'' to ''Limpopo Province''. A request to that
effect was subsequently made to Parliament in accordance with section 104(2) of the
Constitution. Clause 3 seeks to amend section 103 in order to give effect to that request.

2.4 Clause 4
2.4.1 The proposed amendment of section 139(1) seeks to empower a provincial
executive to intervene where a municipality fails to—
(a) fulfil an executive obligation in terms of legislation or the Constitution;
(b) approve a budget or revenue-raising measures giving effect to the budget; or
(c) fulfil any other obligation specified by an Act of Parliament where the serious
or persistent breach of such obligation threatens the health and safety of
residents of the municipality.
2.4.2.1 The proposed new section 139(1B) seeks to provide a missing piece in the
Government's overall strategy in dealing with municipal financial problems as
discussed in the ''Policy Framework for Municipal Borrowing and Financial Emergencies''
which was published in Government Gazette No. 21423 of 28 July 2000. The
intention of that policy framework is to provide a comprehensive approach to resolving
financial crises in municipalities. Financial recovery usually requires the adoption or
modification of municipal budgets, taxes and tariffs, which are regarded as being
legislative matters. In terms of the Constitution only a municipal council can act in such
legislative matters. However, there will be cases in practice where a municipal council
cannot or will not act, and it is therefore necessary to provide an alternative in order to
implement a financial recovery plan.
2.4.2.2 In terms of the new subsection (1B) a provincial executive must intervene
by taking effective steps if a municipality, as a result of a crisis in its financial affairs, is
in a serious or persistent breach of its obligations to provide basic services or to meet its
financial obligations. The steps may include the adoption of a recovery plan for the
restoration of the municipality to financial health. The municipality would be required to
implement the plan itself, but if it fails to do so, the provincial executive would assume
the responsibility for the implementation of the recovery plan. The recovery plan would
regulate and, to the extent necessary to resolve the crisis, limit the municipality's
executive and legislative powers over the budget and revenue-raising measures. If the
provincial executive fails to fulfil its obligation in terms of the new subsection (1B) the
national executive may, in accordance with section 100 of the Constitution, intervene by
issuing a directive to the province that it must act, or by assuming responsibility where
this is necessary.
2.4.3 The proposed amendment of section 139(2) seeks to simplify the review
process by the NCOP of an intervention by a provincial executive in a municipality in
terms of that section. The proposed review process is similar to that proposed in respect
of interventions in terms of section 100. The proposed amendment further extends the
period within which the Cabinet member responsible for local government affairs may
end an intervention.

3. CONSULTATION
3.1 The following persons, bodies and institutions were consulted on the proposed
amendments contained in clauses 1, 2 and 4 of the Bill:
* Members of the Executive Councils for Local Government
* Members of the Executive Councils for Finance
* South African Local Government Association (SALGA)
* Portfolio Committee on Justice and Constitutional Development
* Portfolio Committee on Provincial and Local Government
* Portfolio Committee on Finance
* Select Committee on Finance
3.2 The amendment contained in clause 3 was requested by the Provincial
Legislature of the Northern Province.
3.3 The Bill was also published for public comment in Gazette No. 23604 of 5 July
2002.

4. IMPLICATION FOR PROVINCES
As discussed in paragraphs 2.1, 2.2 and 2.4 above.

5. FINANCIAL IMPLICATIONS FOR STATE
Clauses 1, 2 and 4 will have no financial implications for the State. The provincial
authority of the Northern Province is satisfied that it would be able to carry the expenses
which it will incur as a result of the change of the name of that province.

6. PARLIAMENTARY PROCEDURE
The State Law Advisers and the Department of Justice and Constitutional
Development are of the opinion that the proposed amendments fall within the ambit of
section 74(3)(b) of the Constitution and consequently require the approval of both the
National Assembly and the National Council of Provinces.

Appendix 4:
MEMORANDUM ON THE OBJECTS OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA FOURTH AMENDMENT BILL, 2002

1. Background
1.1 During June 2002, Parliament passed four Acts that shared a common objective,
namely—
* to enable a member of a legislature or municipal council to become a member
of another party whilst retaining membership of that legislature or council;
and
* 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.
1.2 The four Acts in question are the—
* Constitution of the Republic of South Africa Amendment Act, 2002 (Act No.18
of 2002)
* Local Government: Municipal Structures Amendment Act, 2002 (Act No. 20
of 2002)
* Constitution of the Republic of South Africa Second Amendment Act, 2002
(Act No. 21 of 2002)
* Loss or Retention of Membership of National and Provincial Legislatures Act,
2002 (Act No. 22 of 2002).
1.3 The President assented to the Acts on 19 June 2002, and all four Acts were
published in the Gazette of 20 June 2002. However, as a result of a challenge being
brought in court against the constitutional validity of the Acts, the operation of all four
Acts was effectively suspended pending the verdict of the Constitutional Court.
1.4 On 4 October 2002, in the case of United Democratic Movement v President of the
Republic of South Africa and Others
(Case CCT 23/02), the Constitutional Court held
that ''floor-crossing'' legislation for national, provincial and local government is not as
such inconsistent with the Constitution. Regarding the Loss or Retention of Membership
of National and Provincial Legislatures Act
, 2002 (the Membership Act), however, the
Court held that Parliament did not have the power to effect the provisions contemplated
in that Act by means of an ordinary Act of Parliament, as opposed to an Act amending
the Constitution. As a result of this procedural defect, the Membership Act was found to
be inconsistent with the Constitution and invalid. The other three Acts were, however,
found to be consistent with the Constitution and valid.

2. Objects of Bill
2.1 The objects of the Bill are to amend the Constitution so as to enable a member of
the National Assembly or a provincial legislature to become a member of another party
whilst retaining membership of that legislature; and 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.
2.2 The provisions of the Bill are modelled largely on the amendments effected to the
Constitution by the Constitution of the Republic of South Africa Amendment Act, 2002,
that inserted the provisions related to the ''crossing of the floor'' in the local government
sphere in the Constitution. By adhering to the principles embodied in those provisions,
the Bill will give effect to the Legislature's clearly stated objective, as stated in the
Preambles to the Acts in question, of ensuring that uniformity exists within the three
spheres of government regarding loss or retention of membership of the National
Assembly, any provincial legislature or any municipal council in the event of a change
of party membership, or mergers or subdivision or subdivision and merger of parties.
2.3 The provisions of the Bill are applicable to members of, and parties represented in,
the National Assembly and provincial legislatures. The mechanism contained in the Bill
provides that a member of a legislature will be allowed to change party membership, and
allows a party to merge or to subdivide, or to subdivide and merge, only during the first
15 days following the commencement of the legislation, and thereafter—
* only during 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
* during 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.

3. Departments/persons/bodies consulted
The Bill was published for public comment in the Gazette.

4. Implications for provinces
As discussed in paragraph 2 above.

5. Financial implications for State
None.

6. Parliamentary procedure
The State Law Advisers and the Department of Justice and Constitutional
Development are of the opinion that the Bill must be dealt with in accordance with the
procedure established by section 74(3) of the Constitution since it amends provisions of
the Constitution other than section 1, section 74(1) or Chapter 2.
14

 

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