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.