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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
19 August 2005
CONSTITUTIONAL MATTERS AMENDMENT BILL: VOTING
Chairperson: Ms F Chohan-Kota (ANC)
Documents handed out:
Committee Report of the Constitutional Matters Amendment Bill [B22-2005]
Constitutional Matters Amendment Bill (Draft 5: 18-08-20005)
Constitutional Matters Amendment Bill (Draft 4: 18-08-20005)
Constitutional Matters Amendment Bill [B22A-2005] - Portfolio Committee amendments
Constitutional Matters Amendment Bill [B22B-2005] as voted on
The Committee unanimously voted in favour of the Bill with amendments. In its Committee Report on the Bill, the Department was requested to investigate the possibility of aligning the different regimes that governed the repayment of unspent balances. The Committee could not make the offences and penalties provided in the Bill applicable to a party that had ceased to qualify for funding (as a result of losing an election or dissolution of Parliament). This was because the Act placed no obligation on anyone to repay the unspent balances. The Department was thus asked to look into the matter and effect any necessary changes.
The Committee met in order to finalise the Bill. Mr J Labuschagne (Departmental Drafter) took the Committee through Draft 4. Some of the amendments were only technical and did not change the basic principles as agreed in previous meetings. Draft 5 was the "clean" version of the Bill.
Clause 2: Amendment of section 5 of Act 103 of 1997
Mr Labuschagne said he had effected amendments to the proposed section 5(4). The Act provided that a party must repay the unspent balances within 21 days. The proposed section 6A provided a different date. Subsection (4) would apply subject to section 6A.
Clause 3: Amendment of section 6 of Act 103 of 1997
Mr Labuschagne proposed the substitution of section 6(3). The Act required the accounting officer to prepare financial statements within two months after end of the financial year. The auditor was required to submit the audit report three months after the end of the financial year. There was no deadline within which parties had to submit statements to the auditor. In terms of the amendment to subsection (3), the accounting officer would have to prepare and submit the financial statements to the auditor within two months after the end of the financial year.
Insertion of section 6A in Act 103 of 1997
Mr Labuschagne said that he had included the words "subject to subsection (3)" in subsection (1) because in terms of subsection (1) the nominating party did not have to repay its unspent balances in the event of its member crossing the floor. However, the situation was different under subsection (3). Subsection (3) provided that a party had to repay its unspent balances under certain circumstances. For instance, a party would have to repay its unspent balances should its only member (in the case of a one-member party) cross the floor. The general principle remained that a party did not have to repay its unspent balances if its member had crossed the floor.
Mr Labuschagne said that he had also effected an amendment to the proposed section 6A(2)(a) in order to clarify as to which time it was referring to. A party would not have to repay its unspent balance should it subdivide and any subdivision continue to represent that party in the legislature concerned after the date on which the Speaker of a legislature had published the notice contemplated in item 5(3) of Schedule 6A to the Constitution. This amendment was similar to an amendment that had been effected to the regulations. Item 5(3) of Schedule 6A to the Constitution referred to within seven days after the period referred to in item 4(1) (a) and (b). A view had been expressed that item 3 could be interpreted in different ways. In essence subsection (2) would not apply immediately after the crossing of the floor.
Ms Chohan-Kota asked why subsection (2) was not made applicable subject to subsection (3). Subsection (1) applied subject to subsection (3).
Mr Labuschagne replied that the reason was that subsection (2) already referred to a subdivision of a party.
He said that the words "becoming a member" in subsection (3) should be replaced by "changing membership". Subsection (4) contained a technical amendment. It also made it clear that the accounting officer should prepare and submit the financial statements within one month after the end of September.
Ms S Camerer (DA) said that the committee’s report on the Bill provided that a question had been raised whether the Electoral Commission’s power in terms of the new section 6A(8) should not be extended to instances where the Commission was dissatisfied with an auditor’s report and audited statement so submitted. She wondered if such powers should not be included under subsection 8. The Commission would not appoint auditors if it was not dissatisfied with the auditor’s report. The resolution provided for a sensible thing in so far as it related to other aspects of Funding Act.
The Chairperson asked if there was anything that prevented the Commission from exercising such powers. One could not have a general provision allowing the Commission to conduct another audit.
Mr Labuschagne said that said that subsection 8(a)(ii)(bb) should refer to subsection (4) (a). However, there was nothing wrong if it remained subsection (4). It was up to the committee to decide if any amendment was necessary. The committee agreed to the amendment. In terms of subsection (8)(b), subsection (5) would apply, with the necessary changes, to an auditor who had performed an audit contemplated in paragraph (a)(ii)(bb). The words "with the necessary changes" were added because subsection (5) referred to an audit contemplated in subsection 4(b).
Insertion of section 9A in Act 103 of 1997
Mr Labuschagne said that he had decided to remove reference to section 6(2), (3) or (5) in section 9A(a) after his discussion with the Independent Electoral Commission.
Mr S Swart (ACDP) asked if section 7 of the principal Act would still apply.
The Chairperson replied that the Bill was not changing anything included in section 7.
Substitution of the long title of Act 103 of 1997
Mr Labuschagne said the long title would include the regulation of the repayment of unspent balances to the Commission by parties as one of its purposes.
Mr Labuschagne then switched over to draft 5 of the Bill.
Amendment of section 2 of Act 69 of 1998
Mr Labuschagne said that the clause dealt with the allocation of special and permanent delegates to the National Council of Provinces.
Mr Swart asked at what point would a member who had crossed the floor cross with his or her votes.
The Chairperson replied that the only time that votes would move would be when two parties merge. One should be dealing with a clean merger and no person should continue to represent the original party.
Mr T Delport (DA) asked if unspent balances would have to be repaid in the event of a merger.
Mr Labuschagne replied that a party that had merged with another party would have to repay its unspent balance if it had ceased to qualify for funding.
The Chairperson said that any party that had merged with another party and had ceased to qualify for funding should repay its unspent balances. This was a change from the original principle that provided that a party that had merged with another did not have to repay its unspent balances. The Committee should not adopt a principle that said that money should follow members should their party merge with another party. If money followed members upon a merger, the question would be why it should not follow an individual member who had crossed the floor.
Mr Labuschagne said that he had effected some amendments to the memorandum of the Bill. He them switched over to draft one of the Bill. He had effected two changes to the memorandum. The objects of the Bill had incorrectly referred to the Commission as the "Independent Electoral Commission". It should refer to the Electoral Commission. Section 181(1)(f) of the Constitution referred to the "Electoral Commission" and not the "Independent Electoral Commission". The objects of the Bill as introduced also contained a brief explanation of each clause. The new memorandum did not include this. It gave a broad explanation of the Bill as a whole.
Imam G Solomon (ANC) said that the Bill dealt with the public funding of represented political parties in terms of the Funding Act. He asked why it was called the Constitutional Matters Amendment Bill.
The Chairperson replied that the Bill also contained provisions relating to delegates to the National Council of Provinces. It sought to amend two Acts that stemmed from principles contained in the Constitution. The Committee, Mr Labuschagne and the State Law Advisers could not find another suitable name for the Bill.
Committee Report of the Constitutional Matters Amendment Bill [B22-2005]
Mr Labuschagne said that paragraph 1(a) and (b) dealt with the scenarios under which unspent balances had to be repaid. These were after a party had lost an election, floor crossing and the dissolution of parliament. The Committee had not had time bring the dissolution of Parliament and losing an election in line with the floor-crossing regime. The Department was requested to investigate the possibility of aligning the different regimes.
He said that paragraph (3) dealt with the appointment of an auditor. The Department was thus asked to investigate the possibility of extending the powers given to the Electoral Commission in terms of section 6A(8) to instances where:
- the accounting officer of a political party, after the end of a financial year, had failed to have the books and records of account of the party audited by a public accountant and auditor and, subsequently, to submit an auditor’s report and audited statement to the Electoral Commission as required by section 6 of the Funding Act; or
- where the Electoral Commission is dissatisfied with an auditor’s report and audited statement so submitted.
Paragraph (4) dealt with offences and penalties. The Committee could not make the offences and penalties in terms of the Bill applicable to a party that had ceased to qualify for funding (as a result of losing an election or the dissolution of Parliament). This was because the Act placed no obligation on anyone to repay the unspent balances. The Department was being asked to look into the matter and effect necessary changes.
Ms Camerer said that a semi-colon should be added after the word "and" at the end of paragraph (1)(a). The word "investigate" in paragraph 5(a)(ii) should change to "investigating" and "contemplate" in paragraph 5(a)(iv) should change to "contemplating".
Imam Solomon said that the words "investigate the desirability of" at the beginning of paragraph 5(a)(ii).
The Committee reported the Bill with amendments. All members present voted in favour of the Bill and the Committee Report.
The meeting was adjourned.