Constitutional Matters Amendment Bill: deliberations

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Justice and Correctional Services

02 August 2005
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE, SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE: JOINT MEETING
3 August 2005
Constitutional Matters Amendment Bill: DELIBERATIONS


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

Documents handed out:
Constitutional Matters Amendment Bill [B22 - 2005]
Regulation under section 10(1) of the Public Funding of Represented Political Parties Act, 1997
Amendment Regulations: Public Funding of Represented Political Parties Act, 1997 (Act No. 103 of 1997)

SUMMARY
The Committee continued its deliberations on the Constitutional Matters Amendment Bill and the Regulations in terms of the Public Funding of Represented Political Parties Act. The Department Legal Adviser explained the proposed amendments clause by clause as set out in the Bill.

MINUTES

Department briefing
Mr J Labuschagne, Department Legal Adviser, reported that the amendment regulations proposed an insertion of new sub-regulations that would empower the Independent Electoral Commission (IEC), after the floor crossing, to re-determine the amounts to which political parties were entitled. The proposed regulations sought to regulate the conduct of the IEC in respect of payment of unspent balances by political parties. Furthermore the parties would be required to submit a list of floor-crossing candidates to the Speaker of Parliament/ speakers of provincial legislatures, subsequently the Speaker should publish this list in the Government Gazette.

Clause 1
This clause dealt with the definition section of the Public Funding of Represented Political Act 69 of 1998 and served as the key to technical terms used in the Bill. Mr Labuschagne reckoned that it was desirable to include the definition of the Constitution in the clause in order to avoid repetition in other clauses of the Bill. The inclusion of the definition eliminates the necessity of mentioning the definition of the Constitution in every provision of the principal Act.

Mr N Swartz (ACDP) wanted to know if it was necessary to have the same definition in the regulations as in the principal Act. Mr Labuschagne replied that there was really no harm should the existing regulations be included in the principal Act. The regulations were in fact subject to the principal Act and caused no harm when such definition is mentioned again.

Clause 3
This clause dealt deletion of the words "of the Republic of South Africa, 1996 (Act No. 108 of 1996)" from section 9 of the principal Act. This was consequential to the insertion of the definition of "Constitution" in the principal Act. The current Constitution no longer contained such words and had to be deleted.

Clause 4
In terms of Section 10(1) of the principal Act, the President might make regulations regarding public funding of parties. This clause dealt with the powers of the President to make regulations governing the manner of payments from the Fund. Essentially Section 10(1) of the principal Act sought to empower the President to exercise the prerogative to make regulations. Accordingly, the unspent balances by the parties should be repaid into the public fund of represented political parties. The proposed amendment dealt with repayment to the Fund and sought to empower the President to make these regulations.

Clause 6
Ms Chohan-Kota said that the State Law Advisors had suggested that the Department should change the short title of the Bill.

Mr Labuschagne replied that the Advisors had not suggested an alternative title. The Advisors' view was that the Short Title of the Bill, Constitutional Matters Amendment Bill, created the impression that it was amending the Constitution itself. The Department had noted their concern but insisted that the short title was appropriate and would not be interpreted as amending the Constitution.

Briefing on the Regulations
It was noted that the regulations were meant to regulate the conduct of the Electoral Commission in its dealing with public funding for represented political parties.

in terms of the Regulations the IEC should publish in the Government Gazette the total amount of funds available for public funding of represented political parties. The financial year of the Fund is 1 April to 31 March. In terms of regulation 5(1) the allocations to which all political parties were entitled to should be paid to parties in four equal instalments. The first instalment was payable within 30 days of the beginning of the financial year. The financial year began on the 1st of April.

Amendment of Regulation 5 of the Regulations
Once crossing had taken place, the allocations to parties would have to be recalculated and the amounts the parties were entitled to would change. The last two instalments would not be equal to the initial instalments. The Department proposed the insertion of new subregulations 3(a) and (b). The Bill provided that when an existing party had merged with another party the existing party should repay its unspent balance to the IEC. The regulations provided that the existing party should provide the Commission with the name and particulars of the banking account of the new party. The IEC should pay the said money over to the new party within 14 days after the receipt of the monies.

This amendment dealt with recalculation of monies and repayment of unspent balances to the Electoral Commission by the parties. In terms of the proposed regulation the existing party should provide the Electoral Commission with the details of the new party.

The remaining two instalments (October and January) had to be paid within the first 15 days of both October and January. Members were surprised that the IEC had not raised any problem in relation to the reduction of days in which it had to make payments to political parties.

Mr Labuschagne noted that any unspent balances within the coffers of the Electoral Commission should be distributed equally amongst all political parties during the next financial year. He observed that the regulation had to be inserted in the principal Act to close this lacuna in regard to funds held by IEC

Schedule (6)(a) of the Constitution provided that the Speaker should publish the number of seats allocated to each party in the Government Gazette. The political parties were required to distribute the number of seats acquired through floor crossing to all political parties within ten days of their being submitted to the Speaker.

Mr Kgoshi Mokoena (ANC) wanted to know if the IEC would cope with the change in that they had to pay the parties their first instalments within fifteen days, as opposed to 30 days.

Mr Labuschagne explained that even the Chairperson of the IEC could not express an opinion on the matter. Furthermore an IEC official had indicated that he did not foresee any problem with changing from fifteen days to 30 days. However the Department would continue to consult with the IEC on the issue of the reduction.

Ms Chohan-Kota asked if during floor crossing the parties were required to submit the candidate list to the Speaker of Parliament after which the Speaker should publish the list in the Government Gazette.

Mr Labuschagne explained that the parties should submit such list to the Speaker but was unsure if the same was true with the Electoral Commission. He added that the candidate list comprises all Members who were crossing the floor to other parties.

Mr Labuschagne mentioned that in terms of the sub-regulations, instalments should be paid by the IEC to the political parties regularly within three months.

Ms Chohan-Kota wanted to know if the repayment in instalments included unspent balances. She submitted that the unspent balances should be transferred into the fund for the following financial year.

Mr Labuschagne responded that the unspent balances were not included in terms of this particular regulation. He noted that currently no provision was made for unspent balances in this regard.

The meeting was adjourned.

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