REPUBLIC
OF SOUTH AFRICA
_________
(As
introduced in the National Assembly as a section 74 Bill)
(The
English text is the official text of the Bill)
__________
(Mr J H VAN DER MERWE, MP)
[ B …. ---- 2006 ]
REPUBLIEK
VAN SUID – AFRIKA
_________
TWAALFDE
WYSIGINGSWETSONTWERP OP DIE GRONDWET, 2006
_________
(Soos by
die Nasionale Vergadering ingedien as ‘n artikel 74-wetsontwerp)
(Die
Afrikaanse teks is die amptelike vertaling van die Wetsontwerp)
__________
(MNR J H
VAN DER MERWE, LP)
[ B …. ---- 2006 ]
[ ] Words in bold type in square brackets
indicate omissions from existing enactments.
________________ Words underlined with a solid line
indicate insertions in existing enactments
To amend
the Constitution of the Republic of South Africa, 1996, so as to prevent a
member of the National Assembly or provincial legislature to become a member of
another party whilst retaining membership of the National Assembly or that
provincial legislature; to prevent an existing party to merge with another
party, or to subdivide into more than one party, or to subdivide and any one of
the subdivisions to merge with another party, whilst allowing a member of a
legislature affected by such changes to retain membership of that legislature;
and to provide for matters connected therewith.
WHEREAS section
19(1) of the Constitution of the Republic of South Africa, 1996 (the
Constitution), grants every citizen a constitutional right of freedom to make
political choices and to participate in the activities of a political party;
AND
WHEREAS section 19(3) of the Constitution grants every adult
citizen a constitutional right to vote for any legislative body in a free and
fair election;
AND WHERAS
section 46(1)(d) of the Constitution requires an electoral
system that results in proportional representation;
AND WHERAS
the Constitution Tenth Amendment Act, 2003, amended the
Constitution to enable a member of the National Assembly or a provincial
legislature to become, contrary to the wishes and deliberate expression by the
citizens of South Africa, a member of another party to whilst retaining
membership of the National Assembly or provincial legislature,
Amendment of section 46 of Act 108 of 1996, as amended by section 1 of
Act 2 of 2003
1. Section 46 of the Constitution of the Republic of
South Africa, 1996 (hereinafter referred to as the Constitution) is hereby
amended by the substitution in subsection (1) for the words preceding paragraph
(a) of the following words:
“ The [Subject to Schedule 6A, the] National Assembly consists of
no fewer than 350 and no more than 400 women and men elected as members in
terms of an electoral system that-“.
Amendment of section 47of Act 108 of 1996, as amended by section 2 of
Act 2 of 2003
2. Section 47 of the Constitution is
hereby amended by the substitution for subsection (3) of the following
subsection:
“ (3) A
person loses membership of the National Assembly if that person-
(a) ceases to be eligible; or
(b)
is absent from the Assembly without permission in
circumstances for which the rules and orders of the Assembly prescribe loss of
membership. [; or]
[(c) ceases to be a member of the party that
nominated that person as a member of
the Assembly, unless that member has become a member of another party in
accordance with Schedule 6A.]”.
Amendment of section 61 of Act 108 of 1996, as amended by section 1 of
Act 21 of 2002
3. Section
61 of the Constitution is hereby amended by the substitution for subsection (2)
of the following subsection:
“(2) [(a) A provincial legislature
must, within] Within 30 days after the result of an election of
that legislature is declared-
[(i)] (a) determine,
in accordance with national legislation, how many of each party's delegates are to be permanent delegates and how
many are to be special delegates; and
[(ii)] (b) appoint the permanent delegates in accordance with the
nominations of the parties.
[(b) If the composition of a
provincial legislature is changed on account of changes of party membership,
mergers between parties, subdivision of parties or subdivision and merger of
parties within that legislature, it must within 30 days after such change-
(i) determine, in accordance with the national legislation
referred to in paragraph (a), how many of each party's delegates are to be
permanent delegates and how many are to be special delegates; and
(ii) appoint the permanent delegates in accordance with the
nominations of the parties.]”.
Amendment of section 62 of Act 108 of 1996, as amended by section 1 of
Act 21 of 2002
4. Section
62 of the Constitution is hereby amended by the substitution for subsection (3)
of the following subsection:
“(3)
Permanent delegates are appointed for a term that expires [-
(a)] immediately before the first sitting of a
provincial legislature after its next election[; or].
[(b) on the day before the appointment of permanent delegates in
accordance with section 61 (2) (b) (ii) takes effect.]”.
Amendment of section 105 of Act 108 of 1996, as amended by section 3 of
Act 2 of 2003
5. Section
46 of the Constitution is hereby amended by the substitution in subsection (1)
for the words preceding paragraph (a) of the following words:
“[Subject to Schedule 6A, a] A
provincial legislature consists of women and men elected as members in terms of
an electoral system that-“
Amendment of section 106 of Act 108 of 1996, as amended by section 4 of
Act 2 of 2003
6. Section
106 of the Constitution is hereby amended by the substitution for subsection
(3) of the following subsection:
“(3) A person loses
membership of a provincial legislature if that person-
(a) ceases to be eligible; or
(b) is absent from the legislature without
permission in circumstances for which the rules and orders of the legislature
prescribe loss of membership[; or].
[(c) ceases to be a member of the party that nominated that person
as a member of the legislature, unless that member has become a member of
another party in accordance with Schedule 6A].”.
Amendment of section 157 of Act 108 of 1996, as amended by section 2 of
Act 87 of 1998 and section 1 of Act 18 of 2002
7. Section
157 of the Constitution is hereby amended –
(a) by the
substitution of subsection (1) of the following subsection:
“(1)
[Subject to
Schedule 6A, a] A Municipal Council consists of-
(a) members
elected in accordance with subsections [(2) and (3)] (2), (3), (4) and (5);
or
(b) if provided for by national legislation-
(i) members
appointed by other Municipal Councils to represent those other Councils; or
(ii) both
members elected in accordance with paragraph (a) and members appointed in
accordance with subparagraph (i) of this paragraph.
(b) by the
substitution for subsection (3) of the following subsection:
(3) An
electoral system in terms of subsection (2) must [result, in general, in proportional representation] ensure
that the total numbers of members elected from each party reflects the total
proportion of the votes recorded for those parties.”.
Amendment of Schedule 3 to Act 108 of 1996, as amended by section 2 of
Act 3 of 1999, section 19 of Act 34 of 2001 and section 3 of Act 21 of 2002.
8. Schedule 3 to the Constitution is
hereby amended by the substitution for item 3 of Part b of the following item:
“ 3. If the
competing surpluses envisaged in item 2 are equal, the undistributed delegates
in the delegation must be allocated to the party or parties[, including any merged party
as contemplated in section 61 (2) (b),] with the same surplus in
sequence of votes recorded, starting with the party [or merged party] which
recorded the highest number of votes[, including combined votes in the case of a merged
party,] during the last election for the provincial legislature
concerned[, but
if any of the parties with the same surplus-
(a) came into existence on account of
changes of party membership or subdivision of parties within that legislature
as contemplated in section 61 (2) (b); and
(b) did not participate in the last election
for the provincial legislature concerned,
the legislature must
allocate the undistributed delegates in the delegation to the party or parties
with the same surplus in a manner which is consistent with democracy].”.
Deletion of Schedule 6A in Act 108 of 1996 as inserted by section 6 of
Act 2 of 2003
9. Schedule 6A in Act 108 of 1996 is
hereby deleted.
Deletion of Schedule 6B in Act 108 of 1996 as inserted by section 2 of
Act 18 of 2002
10. Schedule 6B in Act 108 of 1996 is
hereby deleted.
Amendment of Schedule 2 to Act 200 0f 1993,
as amended by section 12 of Act 2 of 1994, section 3 of Act 20 of 1995, section
13 of Act 44 of 1995, Schedule 6 to Act 108 of 1996 and section 7 of Act 2 of
2003
11. Schedule 2 to the Constitution of the
Republic of South Africa, 1993, is hereby amended by the deletion of items 12
and 13.
12. This Act is called
the Constitution Fifteenth Amendment Act,
2006
MEMORANDUM
ON THE OBJECTS OF THE Constitution of
the Republic of South Africa Fifteenth Amendment BILL, 2006
1.
BACKGROUND
1.1 During
2002 and 2003 Parliament passed
four Acts that shared a common objective, namely -
Ø
To enable a member of a legislature or municipal council to
become a member of another party, whilst retaining membership of that
legislature or council; and
Ø
To enable an existing party to merge with another party, or
to subdivide into more than one party, or to subdivide and any subdivision to
merge with another party.
1.2 Unfortunately
these Acts that were adopted by Parliament contradict the objects of the
Constitution -
Ø
That provides for a citizen’s Constitutional right to vote
for a political party and to be represented in the legislature in accordance
with the votes so cast;
Ø
that allows for the design of an representational system
aimed at allowing entry into parliament of smaller and bigger political parties
alike.
1.3 The system
of “floor-crossing” has given rise to abuse and the protection of self-interest
by individual politicians directly in conflict with the wishes expressed by the
people and has effectively reduced the inclusive function of the South African
electoral system.
1.4 The system
has led to a feeling amongst voters that they have been sold out when their
properly elected public representatives, based upon a self-serving unilateral
decision, nullified their votes.
1.5 Through
this conduct of certain individual politicians voters’ constitutional rights
are infringed upon and political stability is undermined and threatened.
1.6 Since 2003
statistics has shown that not one of the politicians who crossed over and
formed their own political parties have received any support from the voters in
a next election and as a result lost their seats in the respective
legislatures.
1.7 Given South
Africa’s list system of proportional representation, floor-crossing contradicts
the will of the voters who vote for a political party and not a particular
politician.
1.8 Floor-crossing
is political greed and merely concerned with short-term interests, rather than
the long-term interests of the voters.
1.9 Public
perception is that politicians defect from their parties as a result of
disagreement with policies voters have originally voted for, or, because they
desire senior public office and they believe they are more likely to acquire it
by joining another party.
2. objects of the bill
2.1
The
objects of the Bill are to amend the Constitution in order to prohibit a member
of the National Assembly or a provincial legislature to become a member of
another party whilst retaining membership of that legislature, to prohibit an
existing party to merge with another party, or to subdivide into more than one
party, or to subdivide and any one subdivision to merge with another party.
2.2 The
provisions of the Bill are aimed at restoring the position that existed prior
to June 2002 by repealing the following Acts
(i)
Constitution Eighth Amendment Act, 2002
(ii)
Constitution Ninth Amendment Act, 2002
(iii)
Constitution Tenth Amendment Act, 2003
2.3 The
provisions of the Bill are applicable to members of, and parties represented in
the National Assembly and provincial legislatures. The mechanisms contained in
the Bill will provide that a member of a legislature will no longer be allowed
to change party membership, neither will a party be allowed to merge or to
subdivide, or to subdivide and merge.
2.4 The Bill
therefore will give full effect -
Ø
To the principle and practice that the people shall govern
and prevent parties in having a disproportionately larger or smaller
representation;
Ø
To maintain a political system of as inclusive a character
as possible that fully accords with the wishes of the electorate; and
Ø
To the principle and practice that the Parliamentary system
would enjoy legitimacy through the inclusion of the broadest inclusion of
minorities.
3. departments/bodies/persons consulted
No other
parties were consulted
4. implications for provinces
There is
no implications for provinces
5. financial implications for state
There are no financial implications for the State
6. parliamentary procedure
The opinion is held that the Bill must be
dealt with in accordance with the procedure established by section 74(3)(a) of
the Constitution since it contains amendment which-
(i)
relates
to a matter that affects the National Council of Provinces
(ii)
alters
provincial boundaries, functions or institutions; or
(iii)
amends
a provision that deals specifically with a provincial matter.