Constitutional Matters Amendment Bill: Department briefing

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE AND SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
2 August 2005
CONSTITUTIONAL MATTERS AMENDMENT BILL: DEPARTMENT BRIEFING

Co-Chairpersons: Ms F Chohan-Kota (ANC) and Kgoshi L Mokoena (ANC)

Documents handed out:
Provisions relating to delegates in a provincial delegation
Constitutional Matters Amendment Bill [B22 - 2005]

SUMMARY
The Department of Justice briefed the two Committees on Clause 5 of the Constitutional Matters Amendment Bill that dealt with amending Section 2 of the Determination of Delegates Act, No 69 of 1998. Clause 5 makes provision for the determination of permanent and special delegates of a provincial legislature's delegation to the National Council of Provinces after floor crossing had occurred in the provincial legislature.
This would be on account of changes of party membership and mergers or subdivision of parties.

Clause 5 stemmed from the Constitution of the Republic of South Africa Amendment Act, 2003 (Act No. 2 of 2003) which had resulted from the Constitutional Court judgment in the United Democratic Movement v President of the Republic of South Africa and Others (No. 2) 2003 (1) SA 495 (CC). The principal object of that Act was to re-enact the provisions of the Membership Act in a procedurally correct manner. However, when the provisions of the Membership Act were re-enacted, the amendments to the Determination of Delegates (National Council of Provinces) Act, 1998, as contained in section 2 of the Membership Act, were not re-enacted.

There was lengthy discussion by the Committee. Some members believed that treating floor crossing as if it were an election was incorrect and that one needed to reassess the principle that allowed parties which had not fought in elections to be represented in the legislature.

MINUTES
The Department legal drafter, Mr J Labuschagne, briefed the Committee on the provisions of the Constitution that dealt with delegates in a provincial delegation, namely Sections 60, 61(1) and (2) (a) and (b), Part B of Schedule 3 to the Constitution and Section 2 of the Determination of Delegates (National Council of Provinces) Act, 1998.

Section 60 of the Constitution referred to the composition of the National Council of Provinces in which a single delegation from each province consisted of ten delegates. The ten delegates were broken down into four special delegates and six permanent delegates according to the provisions of Section 61(2) of the Constitution.

Section 61(1) refers to the formula which stipulates the number of delegates each party represented in a provincial legislature is entitled to in the Province’s delegation.

Part B of Schedule 3 to the Constitution sets out the formula referred to in Section 61(1) as the number of seats the party holds in the provincial legislature multiplied by 10 and divided by the number of seats in the legislature, plus one. It also provides for the means of dealing with surplus delegates that arise from applying the formula.

Section 61(2)(a) of the Constitution stipulated the timeframe within which a provincial legislature would determine which members of the party’s delegates would be permanent or special members and also appoint the permanent delegates according to the nominations of the parties.

Section 6(1)(2)(b) of the Constitution set out the conditions and timeframe under which a change in the composition of the provincial legislature maybe carried out.

Section 2(1) of the Determination of Delegates (National Council of Provinces) Act 1998 provides for the smallest number of permanent delegates to which every party represented in a provincial legislature was entitled.

Section 2(2) set out the formula for determining the number of permanent delegates to which a party entitled to more than one delegate, should have.

Section 2(3) and (4) dealt with the creation of special delegates and the conditions under which they were created.

Discussion
Ms Chohan-Kota asked Mr Labuschagne for an example of the formula using a party with ten members and a legislature of fifty. Mr Labuschagne responded that it would be ten multiplied by ten, and then divided by fifty plus one.

The Chairperson said that answer derived from the formula just given would give the percentage that a party holds in the Legislature

Mr Labuschagne responded that the result derived from applying the formula was an indication of the number of delegates. In the Constitutional Matters Amendment Bill, the formula was not changed but a situation was provided for "after-crossing".

The Chairperson asked if such a situation warranted a re-application of the formula.

Mr Labuschagne responded that formula should be re-applied and the number of delegates established before any change was made.

Mr Van der Merwe (IFP) asked Mr Labuschagne if the "floor crossing meant that the whole process was treated as if there had just been an election and the nominations of every party was recalculated? Mr Labuschagne agreed.

Mr Mzizi (IFP) asked if the crossing-over principle gave members of the NCOP the leeway to cross over to another party when the opportunity presented itself. Mr Labuschagne responded that NCOP members could not cross over.

The Chairperson said that although she understood how delegates were chosen at the level of the legislature, she did not understand the mechanism that has been set up for choosing permanent and special delegates. Understanding this mechanism would enable the Committee to understand what the crossing-over process entailed. As Mr Labuschagne had already said, he had not changed any existing principle but tried to take cognisance of what had happened in the provincial legislature and applied the same procedure and mechanisms to these developments.

Mr Van der Merwe (IFP) said that Section 60 made it clear that there were four special delegates and six permanent delegates. How did Mr Labuschagne conclude that there were four or fewer delegates? Did Section 60 provide for a fixed number?

Mr Swart (ACDP) said that the problem was with a number of provisos which nullified the prior sections in the Determination of Delegates Act, such as Section 1 and these had to be read carefully to understand. What affected the number of delegates in the long term was any change or movement at the provincial level. If there was a movement at the provincial level, how were the delegates allocated besides resorting to a merger?

Mr Labuschagne responded that the Constitution clearly stated that six permanent and four special delegates should be appointed when the formula was applied initially. When the formula in the Constitution was applied to determine the number of delegates to which each party was entitled, it should be determined how many of these delegates were permanent delegates, and how many were special delegates. This would arrive at the number of six and four stipulated in Section 60 of the Constitution. In this process, the Determination of Delegates (NCOP) Act 1998 had to be applied. Its Section 2 provided that every party represented in the provincial legislature in terms of Section 61 of the Constitution was entitled to at least one delegate which was determined according to conditions stipulated in the Constitution. For instance, if a party had five delegates in a delegation, at least one of those five delegates should be a permanent delegate.

The Chairperson asked if this process included every party in the legislation. Mr Labuschagne responded that it only applied to those that fell under the stipulations of Section 2(1) of the Determination of Delegates Act of 1998.

The Chairperson said that the first formula that was applied would determine whether a party was entitled to a permanent delegate or not. If the sum calculated resulted in a whole number then the particular party would be entitled to one delegate but if it resulted in a fraction, then the party would not be entitled to this one delegate.

Mr Labuschagne agreed that if the formula were applied, possibly not all the parties involved would have delegates. It depended on the number of seats available in the legislature.

Mr Swart said that Section 2(4) suggested that not every represented party automatically got a permanent seat as opposed to a special seat.

Mr Van der Merwe asked if the process of assigning delegates started with the election of ten delegates, after which it was determined which of them would be special or permanent.

The Chairperson asked what was the implication of the provision of Section 2(1) that stipulated that every party represented in the legislature was entitled to delegates in the delegation and should have at least one permanent delegate.

Mr Labuschagne responded that any party’s entitlement to delegates was dependent on meeting the condition set in Section 61(1) of the Constitution

The Chairperson asked if the Committee would have to change any of the principles stated in the Constitution regarding the determination of delegates.

Mr Labuschagne responded that the Committee did not have to change any of the principles but had to formulate a solution to deal with where one of the parties that was entitled to one delegate according to the provisions of the Constitution did not participate in the previous election.

The Chairperson said that if the particular party in question did not succeed in terms of the existing formula, the formula would have to be re-applied. Would a situation where there were more or fewer special delegates create a problem? Mr Labuschagne responded that such a situation would not create a problem.

The Chairperson said that if a party was a newly-formed party and was not merged into an existing party, there would be no votes cast for the new party.

Mr Labuschagne replied the new Bill tried to address situations of crossing-over from one party to another by reapplying the formula stipulated in the Constitution after the cross-over had taken place. In the process of reapplying this formula and a party which had not participated in an previous election became entitled to a delegate, the provisions which related to the highest and lowest vote would not be applied to that specific party.

The Chairperson said that Mr Labuschagne had still not answered the question regarding the votes. If a new party was formed and this party did not participate in the elections, how would the number of votes regarding that party be calculated?

Mr Labuschagne responded that due to the fact that the party had not participated in the election and because the party would have zero number of votes, provision was made for delegates to be elected from parties which were entitled to at least one delegate.

Mr Landers (ANC) said that it seemed that the issue under discussion was that parties which did not participate in elections could end up with representatives in the National Council of Provinces..

The Chairperson said that the representatives were in the provincial legislature and not in the NCOP. Although the parties had not participated in elections, it was presumed that they would have been elected as representatives.

Mr Landers said that these representatives would be representatives of another party and not of their own party.

However, the Chairperson responded that it signified the rationale behind the crossing-over principle.

Ms Camerer (DA) said that many people held the view that one needed to reassess the principle that allowed parties which had not fought in elections to be represented in the legislature.

The Chairperson pointed out that when people had joined the Democratic Alliance originally, she understood the scenario to be that the DA had never fought in the elections.

Mr Camerer said that she believed that Mr Landers had enunciated the view of the public about the piece of legislation under discussion.

Mr Van der Merwe asked what would happen when, for instance, a group joined the ANC. Would the subdivision which merged with ANC take over the seats for ANC?

Mr Mzizi asked that if there were five members in the legislature and those five members had two delegates. If three of these five members crossed over to another party, two members remained in the party while the other member formed his own party, what would be the status of the permanent delegates? Were they affected by the change?

Mr Labuschagne responded that he would have to take another look at the provisions. The principles under debate before the Committees were not new principles but if the members had problems with the provisions of the Bill, the drafters would have to review the crossing-over formula - even if that meant changing the principles that would equally mean an amendment to the Constitution. An example of an issue to deal with would be if a member who crossed over to another party took his seat or his vote to the new party.

Mr Van der Merwe said that he shared Mr Labuschagne’s concern that the Committees spent so much time reviewing the provisions under discussion and seemingly making things difficult but it was the task of the Committees to do so. If the Justice Department had not done its job properly, it would use the present opportunity to rectify past mistakes. If the Committee formed the opinion that the Constitution had to be amended, then it would do so.

Ms Johnson asked if Mr Labuschagne meant that on the 16 September when it became clear what sides people had taken in the provincial legislature, and a head count had been done, that the same logic would apply as if it were deemed to be an election result? Mr Labuschagne responded that the same logic would apply.

Ms Johnson stated that since the process was similar to dealing with a mini-election result, the same formula would apply to this situation and the votes would automatically follow.

The Chairperson said that part of the reason why the formula existed was to ensure that the end result equaled the number stated in Section 60 of the Constitution. Ms Johnson’s view was correct in her assumption that votes which were cast attached to the individual seats in principle, because ultimately it would not be possible to apply the formula.

Mr Van der Merwe said that if the same situation were achieved from floor crossing as from an election, then the Committee should make a one-clause pronouncement stating that the same provisions that applied after an election, would apply to a floor-crossing situation.

Mr Mzizi asked if it would be constitutional to do so.

Mr Landers asked if there was anything new in the provisions that were being dealt with as the Committees had dealt with these provisions previously.

The Chairperson explained that in the past the Committees had failed to re-enact the part of the Bill under discussion. The Committee had dealt with two points on the floor crossing legislation which were initially struck down based on the constitutional provision that said that legislation could be enacted after reasonable time had passed after the democratic elections. The Constitutional Court interpreted the reasonable time period to be a shorter period than the Committees did. It was procedurally incorrect for that provision to be used because a lot of time had passed, therefore the Committee had to re-enact the provision that had been passed originally but through a different process of Parliament which was the usual constitutional amendment type procedure. For some reason, the part that dealt with the NCOP had not been addressed, therefore the Committees were not trying to change anything but correct what it had done wrong initially.

She continued that Mr Van der Merwe was correct in saying that the Committees had a duty to scrutinise the pieces of legislation before them and identify any problems that they might have. The Committees were not trying to re-enact floor crossing as a principle but there were also consequential things that had to be done. There was the issue of party funding being affected by the floor-crossing principle. The Committee had then requested that the issue of crossing be studied with a view to establishing a mechanism to deal with such consequences of crossing. This review had been done and therefore the task of the Committees was not to revisit issues that had already been dealt with.

Mr Mokoena (the Co-Chairperson) asked if the actual intention of Clause 5 of the Constitutional Matters Amendment Bill was not to address the concerns raised by members? When it was reduced to simple terms, it stated that after all the crossings in the legislature, the legislature could then do all the required calculations according to the provisions that dealt with parties being represented either as special or permanent delegates?

Ms Camerer said that though the provisions stated that the floor crossing should be treated as if it were an election, it was confusing dealing with permanent and special delegates crossing at the same time because crossing upset the balance that had previously existed. As a result of this, this whole floor crossing process could not be dealt with in the same way that an election would.

The Chairperson responded that the way the legislation under discussion had dealt with that problem was by providing that the legislature under those circumstances would have to nominate and vote for delegates to fill the positions created by the floor crossing, rather than applying the formula. However members were asking if the existing formula should not be applied with votes cast as if an election was fought. The question therefore arose of which option to follow. It could be done either way but she would suggest that provision should be made to indicate when crossing the floor occurred and not an election, with the legislature determining who the delegates would be. Some of the provisions strictly applied to election situations and therefore could not be applied to the crossing over principle because the crossing over had several more certainties and different consequences as with when an election was fought.

Mr Van der Merwe said that when there was an election, it meant that normally the position of the legislature would change and this was the same principle that applied to the process of floor crossing. The rule could be ignored if there was no crossing in one province, however there could be a new composition in another province. The new composition and a composition that was achieved after an election were the same thing and therefore the same rules that would be applicable as after an election would apply.

The Chairperson said that in the changes that had been made, the rules applied as much as possible except towards the last part which dealt with actual votes that were cast. It was rarely the case that the last two steps were applied, they only existed to take care of special kinds of contingencies. After an election, the number of votes could be determined by the number of ballots cast, however the floor crossing situation could be resolved by saying that if there was a brand new party which was entitled to certain number of seats according to the stipulated formula, the legislature would conduct some sort of election.

Ms Camerer believed that it would be artificial to say that someone crossed over with the number of votes that had been acquired two years previously.

The Chairperson said that the nature of the meeting being held, created space for some kind of election in the legislature under the prevailing circumstances. Therefore, even though some seats were earmarked for a particular party, the legislature of that party had to decide because it was dealing with a brand new party that had never faced elections. It was important to note that the delegates in question were not delegates of the party but of the province and therefore were representative of the legislature. Essentially, the formula had been adhered to and nothing had changed.

Mr Van der Merwe said that the unspent balance from the party funding monies issued quarterly, which had not previously been accounted for, should be made available to the public coffers.

The Chairperson asked Mr Labuschagne to note the point made by Mr Van der Merwe in the form of an option for inclusion into the Bill.

An objective mechanism should also be devised to determine what the unspent monies were. The power to devise this mechanism could be vested in the Independent Electoral Commission. Such unspent monies could be put in a financial pool and allocated in the next financial year when it would be shared.

Mr Mzizi and Mr van der Merwe reiterated that mechanisms for identifying unspent monies should be devised.

The Chairperson asked the drafter to incorporate the two options that had been mentioned into the Bill.

The meeting was adjourned.