LEGISLATIVE PROPOSAL FROM TERTIUS DELPORT (DA) ON FLOOR CROSSING

 

29 March 2006

 

 

AMENDMENT TO THE CONSTITUTION BILL

 

 

To amend the Constitution of the Republic of South Africa, 1996, so as to disallow a Member of the National Assembly or a provincial legislature or a Municipal Council to become a member of another party whilst retaining membership of the National Assembly or of that provincial legislature or that Municipal Council; and to disallow party represented in the National Assembly or a provincial legislature or a Municipal Council 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 affected by such subdivision or subdivision and merger to retain membership of the National Assembly or of that provincial legislature or that Municipal Council and to provide for matter connected therewith.

 

Amendment to the Constitution Act No 21 of 2002 and the ? Amendment to the Constitution Act No 2 of 2003;

 

AND WHEREAS the said amendments allowed members of the National Assembly, provincial legislatures or municipal councils (the relevant institutions) to become members of another party whilst retaining their membership of the relevant institution;

 

AND WHEREAS these amendments further allowed a party represented in the National Assembly, a provincial legislature or a municipal council to merge or subdivide or subdivide and merge with another party whilst members affected by such changes retained their membership of the relevant institution;

 

AND WHEREAS it is desirable that a member of the National Assembly, provincial legislatures and municipal councils should be disallowed to retain membership of the relevant institution in the event of such a member becoming a member of another party by joining such other party or by being part of or forming a subdivision from his or her party,

 

ALTERNATIVE

AND WHEREAS it is desirable to retain right of parties to merge without such merger causing any affected member to lose his or her membership of the relevant institution;

 

BUT WHEREAS it is desirable to disallow the retention of membership of the relevant institution by a member who joins another party or who subdivides to form another party,

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:

 

Amendment of section 46 of Act 108 of 1996

 

  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 46 of Act 108 of 1996

 

  1. 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 National 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 members has become a member of another party in accordance with Schedule 6A,]” unless that party has merged with another party.

 

Amendment of section 105 of Act 108 of 1996

 

  1. Section 105 of the Constitution is hereby amended by the substitution in subsection (1) for the words preceding paragraph (a) of the following words:

“A [Subject to Schedule 6A,] 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

 

  1. 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.]”  Unless

that party has merged with another party.

 

Amendment of Schedule 6A to Act 108 of 1996, as inserted by section 2 of Act 18 of 2002

 

  1. Schedule 6A to the Constitution is hereby amended by the insertion of the following item:

 

Deletion of Schedule 6A in Act 108 of 1996

 

  1. Schedule 6A of the Constitution is hereby deleted.

 

  1. [(a) A provincial legislature] within 30 days after the result of an election of [a provincial] that legislature is declared [the legislature must]-

[(a)] (i)      determine, in accordance with national legislation, how many of

              each party’s delegates are to be permanent delegates and how

              many ore to be special delegates; and

[(b)] (ii)   appoint the permanent delegates in accordance with the 

              nominations of the parties.       

 

Amendment of section 62 of Act 108 of 1996

 

  1. Section 62 of the Constitution of the Republic of South Africa, 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 Schedule 3 to Act 108 of 1996, as amended by section 2 of Act 3 of 1999 and section 19 of Act 34 of 2001

 

  1. Schedule 3 to the Constitution of the Republic of South Africa, 1996, 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 charges 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.”

 

Amendment of section 157 of Act 108 of 1996, as amended by section 2 of Act 87 of 1998

 

  1. Section 157 of the Constitution of the Republic of South Africa, 1996, is hereby amended-

(a)        by the substitution for subsection (1) of the following subsection:

            “(1) [Subject to Schedule 6A,] a Municipal Council consists of-

(a)                 members elected in accordance with subsections [(2), (3), (4) and (5)] (2) and (3); 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.”; and

(b)        by the substitution for subsection (3) of the following subsection:

“(3) An electoral system in terms of subsection (2) must [ensure that the total number of members elected from each party reflects the total proportion of the votes recorded for those parties] result, in general, in proportional representation.”

 

Insertion of Schedule 6A in Act 108 of 1996

 

  1. Schedule 6A of the Constitution of the Republic of South Africa, 1996 is hereby deleted.