THE CONSTITUTION FIFTEENTH AMENDMENT BILL, 2006

(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 ]

GENERAL EXPLANATORY NOTE

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

________________ Words underlined with a solid line indicate insertions in existing enactments

BILL

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 WHEREAS section 46(1)(d) of the Constitution requires an electoral system that results in proportional representation;

AND WHEREAS 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,

Be it therefore enacted by the Parliament of the Republic of South Africa, as follows:-

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.

Short title

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