Constitution of RSA 3rd & 4th Amendment Bills: briefing by Departments of Justice & National Treasury; Explosives Bill: voting

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
26 February 2003
CONSTITUTION OF RSA THIRD & FOURTH AMENDMENT BILLS: BRIEFING BY DEPARTMENTS OF JUSTICE AND NATIONAL TREASURY; EXPLOSIVES BILL: VOTING

Chairperson: Kgoshi L Mokoena (ANC)[Limpopo]

Relevant documents
Explosives Bill [B43B-2002]
Presentation by National Treasury on Constitution Third Amendment Bill
Proposed Amendments to Explosives Bill - 24 February 2003 (Appendix 1)
Constitution of South Africa Third Amendment Bill [B33B-2002]
Constitution of South Africa Fourth Amendment Bill [B69B-2002]

SUMMARY
The Department of Safety and Security informed the Committee that both the Ministers of Safety and Security and Defence have concluded that ARMSCOR should not be granted an exemption from the Explosives Bill. During the discussions on the Explosives Bill Members clarified the presumptions in Clause 23 and tightened up the offences in Clause 28, especially with regard to the possession of an incendiary device. The Committee adopted the Explosives Bill, as amended.

The National Treasury indicated that the Constitution Third Amendment Bill seeks to allow the national and provincial government to intervene in the legislative affairs of municipalities, but only with regard to budgetary matters. Concern was raised by the NNP as to whether Clause 1 would not be allowing National Treasury to do away with the Section 76 Bill procedure. Members stated that the failure to include the NCOP Committees in the consultation process is deeply troubling, as this Bill does deal directly with the operations of those Committees.

The Department of Justice and Constitutional Development explained that the Constitution Fourth Amendment Bill repeals the Loss or Retention of Membership Act, which was held by the Constitutional Court to be unconstitutional. The Bill thus seeks to resolve this problem by effecting the Constitutional amendment via the ordinary Section 74 procedure.

MINUTES
Explosives Bill
The Chair requested Dr P Jacobs, Chief Manager: Legal Component Detective Services in SAPS, to inform the Committee of the outcome of the consultation between the Department of Safety and Security, the Department of Defence and ARMSCOR on the issue of the granting of an exemption to ARMSCOR.

Dr Jacobs informed Members that the Department of Safety and Security (the Department) did meet with the Ministers of Safety and Security and Defence to discuss the granting of an exemption to ARMSCOR. The Minister of Defence stated that enough can be done via the licences provided by the Bill, especially with regard to laboratory testing facilities. He stated that the main for which ARMSCOR requested the exemption is for conducting research on landmines, and it can apply for a licence to conduct such research. As far as ARMSCOR's export and import operations are concerned, here too it would have to apply for a licence on an ad hoc basis. The bottom line is that both these Ministers recommended that ARMSCOR not be exempted from applying for licences under the Act.

Discussion
The Chair stated that he had also discussed this matter with his counterparts Mr George, Ms Modise and Dr Cwele, and it was concluded that it was not necessary to grant the exemption to ARMSCOR. It was concluded that ARMSCOR could go through the normal channels for the application for licences to the Minister of Safety and Security in terms of Clause 2(3). The Chair informed Members that he was also able to get hold of the Ministers of Defence and Safety and Security, and they concluded that the exemption should not be granted.

Mr P Maloyi (ANC) [North-West] stated that the advice given by the Chairpersons and the two Ministers was appreciated, but it was now up to this Committee to decide whether or not it would accept this advice or not. Dr Jacobs was requested to explain whether the decisions of the Ministers not to grant the exemption was communicated to ARMSCOR and, if so, whether it agrees.

Dr Jacobs replied that the Department spoke to ARMSCOR after its meeting with the two Ministers and ARMSCOR's legal advisor, to whom the information was conveyed, said that he would pass the decision on to the ARMSCOR Board. ARMSCOR then indicated to the Department that its concerns could be accommodated in the licenses, but no final decision or statement to this effect has been communicated yet. The Department will be meeting with ARMSCOR on Tuesday 6 March 2003.

There was also the possibility that this matter could be taken up further when the ARMSCOR Act as discussed by Parliament. The legal advisor to the Minister of Defence was also a member of the ARMSCOR Board. It also had to be made clear that this was just an initial indication from ARMSCOR, and it had not yet communicated its final decision.

The Chair read the Motion of Desirability, and noted that Members agreed to it. He stated that the formal deliberations stage of the Bill would now commence.

Clause 1: Definitions
The Chair noted that Members agreed to this clause, as amended.

Clauses 2-21
The Chair noted that Members agreed to these clauses, as they currently appear in the Bill.

Clause 22: Endangering life or property
The Chair noted that Members agreed to this clause, as amended.

Clause 23: Presumption of possession of explosives under certain circumstances
Adv Gideon Hoon, State Law Advisor, stated that he had considered the concern raised by Mr L Lever (DP) [North-West] during the previous meeting with regard to this clause, and proposed that Clause 23(1)(a)(ii) now be deleted in toto because it is not necessary. Clause 23(1)(a)(i) is wide enough to cover all the necessary aspects here, and Clause 23(1)(a)(ii) is too problematic because it implies that a person who is merely in the possession of a lighter, for example, could be guilty of an offence in terms of this Bill. The phrase "and which can be used, or can be adapted" should thus be replaced with "which has been adapted".

Mr Lever stated that a definite problem is created by the inclusion of the words "or fire" at the end of Clause 23(1)(a)(i) and, as stated by Adv Hoon, could include a lighter. Mr Lever stated that he thought the words "or fire" should be removed from the amendment and Clause 28, and instead insert the phrase "which has been adapted" in Clause 23. This would show that an additional step has to be taken to modify the item to be used to ignite the fire and explosion. This differs from the current formulation of the presumption because it presumes that the person in possession of a lighter, for example, also has the explosives.

Dr Jacobs replied that the offence created by Clause 28 does in fact cover the question of the possession of an incendiary device, such as a lighter, and it is thus merely a question of whether this should be included in the presumptions as well. The Department is of the opinion that if the wording of Clauses 23 and 28 is the same, there would be no such inherent danger that a person in possession of a lighter could run the risk of prosecution.

Senior Superintendent Strydom, from the South African Police Services (SAPS), added that Clause 23(1)(a)(i) requires the device to be adapted here, and thus the mere possession of a lighter in one's pocket would not be considered an explosive device. This formulation is thus in line with Clause 28.

Mr Lever stated that there seems to be a misunderstanding between himself and SAPS, because Dr Jacobs and Senior Superintendent Strydom are now saying that the wording of Clause 23 would be the same as that in Clause 28 to include the positive aspect that the device has to be adapted to constitute an explosive device. Clause 23(1)(a)(ii) would then fall away.

The Chair noted that Members agreed that Clause 23(1)(a)(ii) has to be removed from Clause 23(1)(a). The Committee has thus agreed to Clause 23, as amended.

Clauses 24-27
The Chair noted that Members agreed to these clauses, as they currently appear in the Bill.

Clauses 28 and 29
The Chair noted that Members agreed to these clauses, as amended.

Clauses 30-35
The Chair noted that Members agreed to these clauses, as they currently appear in the Bill.

Schedule
The Chair noted that Members agreed to the Schedule to the Bill.

Mr Lever asked when Members will be provided with copies of the amended Bill. These would hopefully be made available before the debate on the Bill in the House.

Adv Hoon assured Mr Lever that the latest version of the Bill with the amendments proposed by this Committee could be made available to Members by the end of the day.

The Chair read the Committee Report on the Bill, to which all Members agreed. The Committee adopted the Bill.

Constitution of South Africa Third Amendment Bill
Mr Johan Labuschagne, Legal Drafter from the Department of Justice and Constitutional Affairs, informed Members that apart from Clause 3, which officially changes the name from the Northern Province to Limpopo, there are also other proposed amendments from the National Treasury. He stated that Mr Ismail Momoniat, Deputy Director-General: Intergovernmental Relations from the National Treasury, would be taking the Committee through those amendments, and would also be providing background information to the Bill.

Briefing by National Treasury
Mr Momoniat introduced his colleague, Mr V Kahla, Legal Advisor to the National Treasury, who would be assisting in the presentation. The crux of the Bill and the major policy issue is the proposed amendment to Section 139 of the Constitution which deals with the nature of the intervention by the provincial government into the financial affairs of the municipality. The Portfolio Committee on Finance is currently deliberating the Municipal Finance Management Bill, and it is also relevant here with regard to the financial matters of the municipality. Clause 2 merely contains a technical amendment to Section 100 of the Constitution by granting the NCOP greater flexibility in exercising its oversight function. Mr Momoniat stated that much of his input is contained in the Presentation (see document).

Clause 1: Amendment to section 76 of Act 108 of 1996
Mr Momoniat stated the NCOP currently has very little power over a Section 75 Bill, as the National Assembly would drive the processing of this Bill. The amendment in this clause essentially provides that if a Bill contains even one clause that affects the "financial interests of the province", it can be dealt with entirely as a Section 76 Bill. It thus allows greater flexibility to continue splitting the Bill, and is aimed primarily at mixed Bills.

Clause 4: Substitution of Section 139 of Act 108 of 1996
Mr Momoniat stated that this is the "very, very major clause" in the Bill as it allows one sphere of government to intervene in the affairs of another. The Portfolio Committee on Finance decided the intervention would be necessary because Section 139(1) currently provides for a discretionary intervention by the provincial structures, as evidenced by the words "may intervene. This discretionary intervention is problematic because the Constitution limits this intervention to executive matters alone, whereas the budget of the municipality is clearly a legislative function. Municipalities also differ from provincial government in that both the legislative and executive functions are vested in the municipal council, and it merely delegates these functions. There is thus no separation of powers at municipal level. The problem created under this dispensation is that in cases in which the municipal council fails to approve the budget the provincial government would not be allowed to intervene, because the budget is not an executive matter.

The MEC's have also expressed that they would be in favour of this important proposed amendment. There is thus a small amendment in Clause 4(1) via the insertion of the phrase "the Constitution", so as to make it consistent with Section 100 of the Constitution. A new Section 139(1)(c) has also now been inserted, and allows the provincial government to now dissolve the municipality in "exceptional circumstances" in which it fails to fulfil its executive obligation. This is a major change, and therefore specific resolutions have to be taken to dissolve a municipal council in the event of failure, and the provincial government cannot simply dissolve the municipal council administration on an hoc basis, as a set procedure has to be followed.

Section 139(2) currently provides that the provincial government has to provide notice of the intervention "within 14 days of the intervention", and the new Section 139(2)(a) provides that the notice has to be submitted to Cabinet instead of "tabled" because the notice has to be given to the NCOP as well, and "tabled" seems to refer to the National Assembly alone. The period has also been extended to "28 days", because it was felt that 14 days in too short a time period. Section 139(2)(b)(ii) has also been inserted to include a "180 days" period for the termination of the intervention.

Section 139(3) has now been inserted to deal with the written notice that has to be given by the provincial government, and provides that either the MEC or the Minister can stop the dissolution of the municipal council within "14 days from the date of receipt of the notice". It was decided that this provision has to be included because there are sufficient political mechanisms to ensure that a democratic structure such as the municipal council cannot be dissolved on the whim of the provincial government or Minister, but valid reasons have to be provided for this decision.

Section 139(4) marks the real change as the problem being experienced here is that the budget and financial affairs of the municipality are legislative and not executive functions, and presently intervention by the provincial government is only allowed with regard to executive matters. This proposed amendment now seeks to allow the MEC to intervene and impose an interim budget. It is interesting to note that this power was granted to provincial governments by the Interim Constitution of 1993, but it was then phased out by the final Constitution.

Section 139(5) allows for a change in the budget policy of the municipality in a state of "a crisis in its financial affairs". It was decided that this be included because if creditors lend finances to the municipality and its municipal council deliberately defaults, it will adversely affect every other municipality. One could feel sympathetic towards such municipalities, but the fact of the matter is that if it is allowed to default no investor will do business with it again. This will in turn negatively affect its infrastructure-building capacity and its level of service delivery. If this proposed mechanism is not introduced, the current situation would make it impossible for all other municipalities to borrow funds from creditors.

It has to be remembered that Section 139(5) is the ultimate scenario or situation of last resort, and it was felt that both the NCOP and National Assembly should use its monitoring and oversight functions to ensure that municipalities never reach this stage of financial crisis. Unfortunately, the reality of the matter is that, in several cases, politicians and MEC's alike look the other way, with the result that the situation actually becomes much worse for the struggling municipality.

The proposed Section 139(5)(a) provides that the MEC must impose a Financial Recovery Plan (FRP) which, it is hoped, the specific municipality would take ownership over in order to address the situation, as was the case with the Johannesburg municipality recently. In the event that the municipal council refuses to accept that there is a dire problem and also refuses to adopt and implement the FRP, the proposed Section 139(5)(b) allows the MEC to dissolve that municipal council and appoint an administrator who would implement the FRP until a new municipal council is elected.

Section 139(5)(b) is also important because it recognises that the municipality could have inherited real problems from the previous dispensation, but this provision is essentially dealing with blatant refusal and, for this reason, these strong provisions have been proposed. The Chairperson of the Portfolio Committee on Justice and Constitutional Development felt that it has to be a political body or figure that implements this intervention, such as the MEC, and the matter should not be addressed by a court of law because it may not have the necessary insight into the political workings at local government level.

Mr Kahla added that, in the event that the MEC fails to intervene when required to do so, the creditors of the municipality can apply to court and ask for an order compelling the MEC to act. The first port of call with regard to the intervention is the MEC though, because the court might very well no understand the political issues that brought the municipality into the crisis.

Mr Momoniat stated that the proposed Section 139(6) ensures that the written notice of the intervention is submitted both to the Minister and the NCOP. This is important because what is being dealt with here is essentially a mandamus, which obliges the relevant authority to act. The situation cannot be created in which the Minister or the MEC terminates the intervention when it should take place, and also ensures that objective factors are considered in the event of a clear failure here. Section 139(6) thus ensures that the MEC and the Minister are at least informed of the intervention, so that it cannot be set aside. If this were to be allowed the purpose of the inclusion of the "must" in Section 139(5) is negated.

Section 139(7) is the only instance in which the National Assembly is able to intervene directly into the affairs of local government, in cases in which the NCOP itself cannot act.

Mr Momoniat informed Members that the remainder of the slides in the Presentation provides background information on the provisions in the Bill.

Mr Kahla added that there was a need, when the 2001 Constitutional Amendment was effected to financial matters, to devise a framework for people who grant loans to municipalities that also bind future municipalities to the repayment of the debt. The problem here is that municipalities cannot provide real security, and thus have to give a commitment to a certain revenue stream level. This then deals with the situation in which the municipality is in a real financial crisis, and the Bill now provides for the implementation of a FRP.

In the 1999 Constitutional Court case of Fedsure Life Assurance Ltd and others v Greater Johannesburg TMC and others it was held that any decisions by a municipal council regarding its budget are legislative functions. The proposed amendment to Section 139 now allows intervention into the legislative functions of municipalities, but this is restricted to budgetary matters alone.

Discussion
Mr C Ackermann (NNP) [Western Cape] stated that he understood that Section 76 Bills, or money Bills, are difficult to handle, but the proposals made here amount to a procedure for the splitting into two Bills. This essentially granted the National Treasury the power to decide what exactly a money Bill would be, and the problem with this is that the National Treasury could very well choose the easy road and simply decide that all future Bills are to be dealt with as Section 75 Bills. Clarity is therefore needed as to how this is decided as well as who makes this decision, because the Section 76 Bill must not be lost.

Mr Momoniat replied that this is not a money Bill. Section 76(4) itself provides that it has to be dealt with as a Section 76 Bill, but National Treasury has continued with the Section 75 Bill process. Yet it can be made a whole Bill via the Section 7 process so that the NCOP can look at this Bill as a whole piece of legislation, so that those provisions relating specifically to the financial interests of provinces are not separated out into a separate Bill. The decision has thus been taken to treat it as a Section 76 Bill which is the harder route, but it does allow for greater consultation. Thus National Treasury does not have a choice to decide whether Bills should be dealt with via the Section 75 of 76 procedure.

Mr Kahla added that the opposite had happened in fact, because the proposed amendment provides that legislation which is normally dealt with via the Section 76 process and which did not deal with the "financial interests of the province", now allows for the Section 76 route to be triggered should any provision in the legislation be picked up that deals with such financial interests. The National Treasury did not have a choice as to whether a Bill should be governed by the Section 76 or 75 procedure because the preferred option was to deal with Bills that affect the financial interests of the provinces via the Section 76 procedure.

It had to be remembered that this was not a money Bill at all because that type of Bill was dealt with via the Section 77 procedure, and that provision stipulates that Section 77 Bills are to be dealt with via the Section 75 procedure.

Mr Momoniat added that the Constitution itself requires Section 76 Bills, which deals with issues such as taxes etc., to be dealt with via the Section 75 procedure.

There were problems in this regard, and a good example would be the position with regard to the Municipal Finance Management Bill. The intention of the National Treasury was to deal with it as a Section 76 Bill, yet the Constitution requires that it be dealt with as a Section 75 Bill. The National Treasury therefore has to abide by the dictates of the Constitution, as it is the supreme law of the land.

Mr Lever contended that the National Treasury had stated that the Bill contained primarily technical amendments, yet the Bill actually contains far-reaching consequences. It essentially diminishes the power or autonomy of the NCOP in these matters, because the new amendments to Sections 139(5) and (6) provided that the NCOP would only be notified of the intervention at this late stage of the intervention. The NCOP was not granted the power to review whether the intervention was done in good or bad faith, or whether it was done for a good or bad cause.

The proposed Section 139(2)(a) and the current Section 139(2)(c) had been turned on its head. The proposed amendments provide that in the event that either the Minister or the NCOP fails to approve the intervention within 14 days, it would not lapse but can now continue, and the municipality would have no recourse to ask the Minister or the NCOP to review the situation. It could be necessary to deal with this, but it appeared that here steps were being taken to legislate what was essentially a managerial problem. It is sometimes "not wise to use a heavy axe or an anvil" to deal with the core problem or capacity development and management.

Mr Momoniat responded that it had to be remembered that the question in Section 139 was whether municipalities should be allowed to borrow funds or not, and stated that he believed that the powers of the NCOP cannot be taken away, as this is in fact entrenched in Section 139(1), which extends the powers of the NCOP in fact and makes them explicit. It thus confirms that the NCOP must become involved here, and provides that the intervention can also be refused. Thus these amendments in fact step up the powers of the NCOP. There was even a possibility under the present dispensation that the NCOP could have been bypassed completely in this regard.

The NCOP and the Minister cannot stop the intervention in the event of a financial crises with the municipality, and these proposed amendments now seek to change the Constitution by providing that the NCOP must intervene when a provision such as the proposed Section 139 provides that the NCOP "must" intervene, it would then be a contradiction to allow other figures and authorities to reverse the decision to commence the intervention. This is the only reason why the NCOP has not been granted that pwoer.

Mr B Mkhalipi (ANC) [Mpumalanga] stated that this Bill does deal with very serious matters. The Memorandum to the Bill indicates those consulted on this Bill, and provides that only the Select Committee on Finance and the Portfolio Committees on Justice and Constitutional Development, Finance and Provincial and Local Government have been consulted. Yet neither this Committee nor the Select Committee on Provincial and Local Government was consulted, even though it shares some sort of responsibility with the NCOP. This is especially important as the NCOP is central in any intervention here, especially with regard to Section 139. The fact that the Select Committees have been excluded does leave ground for suspicion here.

Mr Momoniat replied that this does puzzle him because a very extensive consultation process was engaged in. When the Bill was introduced two years ago, this consultation process was engaged following the publication by Cabinet of a policy paper which could be made available to Members. The consultation process was extensive and included the South African Local Government Association (SALGA) and the Portfolio Committees on Justice and Constitutional Development, Finance and Provincial and Local Government were consulted. Mr Momoniat stated that he cannot say why the NCOP Committees were not included, but agreed with Mr Mkhalipi that this Committee and the Local Government Select Committee has to be involved here.

A broad consultative process with the NCOP is definitely welcomed, but a very extensive consultation process was engaged in. The NCOP has to be included here, because there is no intention here to "slip in" these proposed amendments.

The Chair stated that these responses scared him, because they indicate a gradual pushing aside of the NCOP.

Mr Lever stated that his fears had not been alleviated but have in fact been aggravated. He stated that he is not an expert on local government issues, but it seemed that this Committee had been assured that the proposed Sections 139(4) and (5) would be situations of last resort. Yet the National Treasury seems to be saying that if the matter is not referred to the NCOP with the effect that it is unable to exercise its oversight function, the process for the NCOP would be easier. Instead it appears that this mechanism can in fact be used by the National Assembly as a first resort. A discussion is needed on this matter.

Mr Mkhalipi stated that the more he listens to the responses offered by the National Treasury the more his feelers are triggered. This legislation does not seem to act in the best interests of the NCOP, because it does not involve the NCOP in the process.

Ms E Lubidla (ANC) [Northern Cape] stated that she does not trust this legislation, because "it does not digest easily".

The Chair stated that, with regard to Mr Mkhalipi's question earlier regarding the extent of the consultation process, the NCOP cannot agree to it, and if it should agree then the Speaker of the NCOP would not.

Mr Kahla responded that Mr Mkhalipi's proposal regarding the consultation process with the NCOP also has to be considered here both with the Chairperson of this Committee and with the Chairperson of the NCOP. There is no intention to side-step anyone here.

Ms B Dlulane (ANC) [Eastern Cape] stated that she is lost because she is uncertain as to the purpose of this meeting. She stated that she was under the impression that Members would be briefed by the National Treasury in order to equip Members when they return to their respective provinces to receive negotiating mandates on the Bill. What precisely is expected of Members here? Surely it was not expected of the Committee to finalise the Bill during this meeting.

Mr Kahla replied that Ms Dlulane was correct in stating that this is a briefing on the Bill that is aimed at informing Members of the contents and workings of the Bill, so that they are better able to inform their constituencies. The briefing to the Portfolio Committee on Justice and Constitutional Development to a long time, and Members are not expected to immediately be fully familiar with this package of legislation which introduces a new regulatory regime. The Bill does deal with difficult issues, and perhaps another meeting should be scheduled to brief Members before they return to their provinces.

Mr Momoniat agreed and proposed that a joint sitting be arranged with the other Portfolio and Select Committees involved here. Legal advice could also be sought to indicate that the powers and recognition of the NCOP has in fact been stepped up by this legislation.

The Chair stated that he wishes to place on record that neither this Committee nor the Select Committee on Local Government and Administration was consulted.

Mr Maloyi requested additional clarity on Clause 2(2)(a).

Mr Kahla responded that he regrets the misunderstanding here and assured Members that government is acting in nothing but good faith in this matter. There is thus no mischief intended here. In fact National Treasury wanted that process to be followed up, especially in terms of consultation. National Treasury has consulted the requisite organs within the executive, proceeded under the impression that Members would be guiding this process to be followed in this regard. In the National Assembly the process was led by the Portfolio Committee on Justice and Constitutional Development, and the Portfolio Committees of Finance and Provincial and Local Government were asked to participate because the proposed amendments affect their operations. This is one of the matters that can be looked into.

Constitution of South Africa Fourth Amendment Bill
Briefing by Department of Justice and Constitutional Development
Mr Johan de Lange, Legal Drafter from the Department, stated that the Constitutional Court held that although the "Crossing-of-the-Floor Legislation" is Constitutional in principle, it was not the Court's task to consider the desirability or that legislation or whether it is a good or bad piece of legislation. The Court held that its sole mandate in the matter was to pronounce on whether the Constitution allows it, and consequently held that the mechanism on the Loss or Retention of Membership was in fact unconstitutional because a reasonable time period has elapsed since the introduction of the Interim Constitution Act 200 of 1993. This Bill now seeks to resolve the procedural problems created under the interim constitutional dispensation.

The result is that an ordinary Act of Parliament, in the form of this Bill, now has to be passed to amend the offending provisions of the Constitution, so that there can be no excuse to side-step Constitutional procedure. The route followed here mirrors that followed by Parliament with regard to the "Crossing-of-the-Floor Legislation" in terms of the local government sphere, via the insertion of the new Schedule 6A into the Constitution itself. The Bill now changes the current Schedule 6A to Schedule 6B and inserts a new Schedule 6A that deals crossing the floor at both national and provincial government level.

The substance of this Bill has not changed at all from Parliament's amendment legislation referred to above, apart from the fact that the Bill provides that within the first 15 days of the commencement of the Act there would essentially be "a free for all". During this period Members could cross the floor without having to comply with the 15% requirement, amongst others.

Discussion
Mr Maloyi asked Mr de Lange to explain whether this Bill contains anything new.

Mr de Lange responded that there is nothing new in the legislation, but it is unique in the sense that it repeals the Loss or Retention of Membership Bill. It also seeks to introduce the new Schedule 6A.

Mr Maloyi asked whether he understood correctly in hearing that there would be a "free for all" during the first window period, after which time the normal 10% threshold would apply.

Mr de Lange answered in the affirmative.

Mr Lever asked Mr de Lange to explain what specific amendment was made, as a result of the Constitutional Court case, to the Constitution to now render the legislation constitutional.

Mr de Lange replied that during 2002 an ordinary amendment Act of Parliament was passed in terms of Section 76 of the Constitution, and the Constitutional Court held that this was done via a special power granted by the Interim Constitution to provide for interim arrangements. The Constitutional Court held that it would instead be appropriate to amend the Constitution via the passing of an ordinary Act of Parliament, and not via the extraordinary power granted by the Interim Constitution.

Mr Maloyi stated that he understands that there are no changes at all, but requested Mr de Lange to explain very slowly the power granted by the Interim Constitution that had lapsed. This would allow Members to be clear on the position when they brief their provinces.

Mr de Lange responded that this is an important point because the whole Bill revolved around it. Normally when the Constitution is amendment this is done via the procedure set out in Section 74 of the Constitution, a Bill such as the one currently under discussion. During 2002 concerns were raised with regard to Parliament's intention to provide for cross-mergers and subdivisions of political parties, and it relied on a constitutional provision that exempted it from the ordinary Section 74 procedure mentioned above, and instead allowed it to effect the amendment via a Section 76 Bill.

A problem was however created here by the phrase "within a reasonable period" in the enabling provision in the Interim Constitution. During June 2002 the Constitutional Court held that five years had elapsed since the final Constitution Act 108 of 1996 came into operation in February 1997, and a "reasonable period" had thus elapsed. The Constitutional Court held that Parliament consequently was no longer able to use the extraordinary power granted by the Interim Constitution, and thus has to effect the amendment by passing an ordinary Act in terms of Section 74 of the Constitution.

It is ironic that this process engaged during 2002 actually surpassed the Constitutional requirements in terms of Section 74 and a greater majority than prescribed by the Constitution was attained, as all nine provinces and 80% of the National Assembly approved the amendment. These figures are much higher than the Constitutional requirements. The provincial legislatures have indicated that they have no objections with this Bill and approve of the Constitutional amendments.

Mr de Lange asked the Chair to indicate when this Bill will be debated in the House.

The Chair replied that he is not yet certain of the date, but assured Mr de Lange that he would be informed accordingly.

The meeting was adjourned.

Appendix 1: Proposed Amendments to Bill

AMENDMENTS PROPOSED
EXPLOSIVES BILL
[B 43B-2OO2]

CLAUSE I
1. On page 4, from line I0, to omit the definition of "explosion" and to substitute:

"explosion" means a chemical reaction involving the production of gases at such a speed. temperature and pressure as is likely to cause damage to the surroundings,

CLAUSE 22
1. On page 11, in line 32, to omit "discharges or detonates" and substitute "discharges, detonates or initiates".

CLAUSE 23
1. On page 12, in line 4, after "explosion" to insert "or fire".

CLAUSE 28
1. On page 14, after line 32, to insert the following subsection:

(5) (a) In the absence of evidence to the contrary which raises reasonable doubt, any person found in possession of explosives under such circumstances as to give rise to a reasonable suspicion that he or she intended to use the explosives for the purpose of injuring any person or damaging any property, is guilty of an offence.