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CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
6 August 1998
REMUNERATION OF PUBLIC OFFICE BEARERS; COUNCIL OF TRADITIONAL LEADERS; MUNICIPAL STRUCTURES; DETERMINATION OF DELEGATES BILLS: DISCUSSION
Remuneration Of Public Office Bearers Bill [B16E-98]
Council Of Traditional Leaders Amendment Bill [B54-98]
Local Government: Municipal Structures Bill [B68-98]
Determination Of Delegates Bill [B56-98]
Practical Implications of the Determination of Delegates Bill (see Appendix)
A subcommittee of the Committee will meet with the Director General to sort out the issues that are complicating progress on the Remuneration Of Public Office Bearers Bill and report back next Wednesday.
The Inkatha Freedom Party was asked to return by Monday with a more convincing motivation for the Council Of Traditional Leaders Act to be amended.
Remuneration of Public Office Bearers Bill
The provisions of Section 219 of the Constitution (Remuneration of persons holding public office) must be contained in a single Act of Parliament according to the state law advisor (the parliamentary law advisor differs on this intepretation). The complicating factor is that the Bill does not make the benefits (medical and pension) applicable to traditional leaders.
The Chairperson suggested that the committee should elect a subcommittee whose members will sit with the law advisors and discuss these issues. The composition of the elected members will include all the parties that are represented in the Constitutional Affairs Portfolio Committee. Those members should not only look at legal implications but also draft a report. The committee will meet next Wednesday to discuss it.
Council of Traditional Leaders Amendment Bill
The memorandum was read:
MEMORANDUM ON THE OBJECTS OF THE COUNCIL OF TRADITIONAL LEADERS AMENDMENT BILL, 1998
The Bill emanates from a legislative proposal that was submitted in terms of Rule 168 of the Standing Rules for the National Assembly. On 11 March 1998 the Portfolio Committee on Private Members' Legislative Proposals and Petitions recommended that the proposal be accepted.
The object of the Bill is to clarify any confusion that may result from the provincial institutions for traditional leadership being called "Houses of Traditional Leaders" and the national institution being called "Council of Traditional Leaders". Consequently, it is being proposed that the name of the national institution be changed to the "National House of Traditional Leaders".
The Chairperson asked whether the motivation for the amendment was sufficient. Another question was to what extent is the proposed amendment supported by the House of Traditional Leaders. Also asked was whether there is a special meaning attributed to "Council" as opposed to "House" as far as the Zulu Language is concerned or does this also apply to other Nguni languages as well. These questions were answered in this way:
The Council of Traditional Leaders has approved the Bill. Secondly there is no special meaning to council or house in the Zulu language; the provinces have accepted the move from "house" to "council".
The committee members were still not convinced by these replies because they still felt that there is a lack of motivation for the amendment bill.
The committee asked whether a constitutional amendment is necessary to proceed with this Bill? The Department said that a constitutional amendment would be necessary because section 212 (b) of the constitution , when referring to council, does not use "c" as a capital letter and there should be a reason for this legally speaking. Furthermore a difference in meaning is intended and there is a difference in meaning between council and house. A council is a small body without representatives and a house is usually represented.
The committee decided not to discuss this matter further as this amendment will only be possible after a constitutional amendment. Finally the Inkatha Freedom Party was requested to rewrite the memorandum with a more convincing motivation. It should return with this motivation by Monday 17 August 1998.
Local Government: Municipal Structures Bill
A Demarcation Board has been established by the Constitutional Development Department. The Demarcation Board cannot act alone in order to complete its work, therefore it should appoint committees to assist it. In order for a Board to function properly it should be given resources.
Determination of Delegates (NCOP) Bill
The NCOP has elected a multi-party committee to deal with the Bill. Part B of Schedule 3 of the Constitution allows 10 delegates from each province. Six to be permanent delegates and four to be special delegates. The method of calculating seats for each party is dealt with extensively in the document called Practical Implications of Determination of Delegates Bill.
Appendix: Practical Implications of the Determination of Delegates Bill
Practical implications of Determination of Delegates Bill
Section 2(1) of the Bill refers to section 61(1) of the Constitution. The formula contained in Section 61(1) is provided for in Part B of Schedule 3 of the Constitution which reads as follows
"The number of delegates in a provincial delegation to the National Council of Provinces to which a party is entitled, must be determined by multiplying the number of seats the party holds in the provincial legislature by ten and dividing the result by the number of seats in the legislature plus one".
An example will be used to illustrate the various permutations.
Western Cape Legislature = 42 seats in the legislature
Proportional representation of each party is presently as follows
NP - 23 seats
ANC - 14 seats
DP - 3 seats
ACDP - 1 seat
Freedom Front - I seat
The formula is applied as follows
NP 23 times ten divided by (42+1) =5,348837209
Likewise the other figures appear as follows
ANC = 3,255813953
DP = 0,697674418
ACDP = 0,2320558139
Freedom Front = 0,2320558139
On the basis of these calculations the NP is entitled to 5 delegates and the ANC to 3delegates (fractions are disregarded).The total number of delegates to the NCOP from a province must be ten. There are therefore 2 seats left, which still need to be allocated.
The next step now is to apply the provisions of Schedule 3 Part B (1) which provides that the surplus, (as the case is above) "must compete with similar surpluses accruing to any other party/parties, and any undistributed delegates in the delegation must be allocated to the party or parties in the sequence of the highest surplus". That would mean the DP, which have the highest remainder left must therefore get the next seat. (fractions now relevant) The second highest fraction is that of the NP and they would therefore get the second seat.
The allocation now reads as follows:
NP = 6 seats
ANC = 3 seats
DP = 1 seat
This makes the full contingent of the provincial delegation, both permanent and
This Section provides a formula for the determination of the number of permanent delegates accruing to each party.
In terms of Section 2(l) the DP is entitled to one delegate only and therefore section 2(2) does not apply to them. The ANC and the NP are entitled to more than one
delegate, hence section 2(2) applies to them. The formula provided in Section 2(2) is applied as follows:
Determination of permanent delegates.
NP = total number of delegates times 6 divided by ten, fractions disregarded.
= 6 times 6 10
= 3.6 ( disregard fraction )
likewise the ANC
I .8 ( disregard fraction) =1
The allocation of permanent delegates is thus as follows
NP = 3
ANC = I
DP = 1 (In terms of Section 2(1))
The number of special delegates allocated to a party must now be determined. It is done as follows
Total number of delegate due to party minus permanent delegates as determined in terms of section 2(2) and 2(3).
NP : 6-3
The NP have 3 special delegates.
ANC :3 -1
Section 2(3) states that if the number of permanent delegates due to a party is less than its special delegate component the special delegate component must be reduced to a number at least equal to its permanent delegate component.
Accordingly the figures of the NP need not to be tampered with, however certain adjustments need to be made to the ANC's allocation. The ANC's permanent delegate component is less than the special delegate component. The special delegate component therefore must be reduced in favour of the permanent component. The ANC's final allocation will thus look as follows :
Permanent delegates : 2
Special Delegates :1
The final permutation of permanent delegates is thus.
NP = 3
ANC = 2
DP = I
Total number of permanent delegates = 6
The rationale behind ensuring that the number of permanent delegates are always higher that the special delegates assigned to the party, is to guarantee that the ruling party in a province always has the higher amount of permanent delegates.
This formula does not necessarily cater for one specific election result , as in the instance where parties enjoy the same degree of proportional representation in the Legislature.
Western Cape Legislature = 42 seats
NP - 22 seats
ANC - 7
DP - 7
Freedom Front - 3
After applying the formula in Section 2(l) the answers read as follows
NP = 5,116279069
A\C = 1,627906966
FF = 0,697674418
ACDP = 0,697674418
In terms of Section 2(1)
The NP is entitled to 5 delegates, the ANC, I and the DP 1.
There are still three remaining seats left to complete a full provincial delegation of 10 delegates. In terms of Schedule 3 Part B (2) the party with the highest remaining surplus get the next seat. The Freedom Front and the ACDP with the highest remaining fractions will each be allocated a seat. There is now a total number of9 seats. According to the formula the remaining seat should go to the next highest surplus. The next highest surplus is that of the ANC and the DP. There is however only one seat left. The Constitution is silent on this matter.
It is therefore proposed _that this eventuality he provided for in this legislation by allocating the remaining seat to the party that received the higher number of actual votes in the provincial election between the two parties.
In the instance where the total number of special delegates is less than four, the undistributed number of special delegates must be allocated to the party/parties to whom delegates were allocated in terms of item 2 of Part B of Schedule 3 to the Constitution in the same sequence that delegates are allocated in terms of that item.
Western Cape Legislature = 42 seats
NP - 6 seats
ANC - 6 seats
Freedom Front - 6 seats
JEP - 6 seats
DP - 6 seats
ACDP - 5 seats
PAC - 5 seats
Mouse Party - 2 seats
In terms of Section 2(I)
ANC = 1,395348837
Freedom Front = 1.395348837
DP = 1,395348837
IFP = 1,395348837
ACDP = 1,162790697
PAC = 1,162790697
Mouse Party = 0, 465116279
Seven Parties are each entitled to one delegate in terms of section 2(1). Because seven parties result in a fraction higher than one, seven parties are entitled to have a permanent delegate. However, there are only 6 seats for permanent delegates. One permanent delegate must now become a special delegate. In terms of section 2(4) it is stated that " the delegates of the parties that are entitled to only one delegate in the delegation of that particular province must, despite subsection (1), become special delegates". To determine which party should give up its permanent seat a policy decision is needed.
It is proposed the party with the lowest remaining fraction should give up its permanent seat for a special seat. The lowest remaining fraction is that of the PAC and the ACDP. It is further proposed that in a case like this, where a tie occur, the party ( one of the two) which received the lowest number of votes in the provincial election between the two should give up its permanent seat and be allocated one special delegate seat.
There are now three remaining seats left for special delegates. The parties compete for these three seats in terms of Schedule 3 Part B (2 ) of the Constitution. The Mouse Party has got the highest remaining fraction and therefore a special delegate should be allocated to them. The second highest is that of the ANC, NP, FF, IFP, DP. They all have equal remaining fractions. The ACDP and the PAC fall out because they have the lowest remaining fraction. In this regard a policy decision is needed. It is proposed that the remaining two seats should be allocated to the competing parties which received the highest actual votes in the provincial elections. The two remaining seats must be shared by the two parties which received the highest number of actual votes in the provincial election.
The final allocation will thus look as follows
NP = 1
ANC = 1
DP = 1
FF = 1
IFP = 1
ACDP = 1
Total number of permanent delegates = 6
PAC which received the lowest vote of the two parties = 1
Mouse Party in terms of Schedule 3 Part B (2) = 1
DP which received the highest vote of the competing parties = 1
NP which received the second highest vote of the competing parties = 1
Total number of special delegates =4
Total number of delegates = 10
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