Constitution Tenth Amendment Act of 2003

by enacted by the Parliament of South Africa

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(English text signed by the President.)
(Assented to 19 March 2003.)

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Act

To amend the Constitution of the Republic of South Africa, 1996, so as to enable a member of the National Assembly or a provincial legislature to become a member of another party whilst retaining membership of the National Assembly or that provincial legislature; to enable an existing party to merge with another party, or to subdivide into more than one party, or to subdivide and to permit any 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.

as amended by

the Citation of Constitutional Laws Act, No. 5 of 2005

Preamble

Whereas section 46(1)(d) of the Constitution of the Republic of South Africa, 1996 (the Constitution), requires an electoral system for the National Assembly that results, in general, in proportional representation;

and whereas section 47(3)(a) of the Constitution provides that a person loses membership of the National Assembly if that person ceases to be eligible on the grounds listed in section 47 (1);

and whereas section 105(1)(d) of the Constitution requires an electoral system for provincial legislatures that results, in general, in proportional representation;

and whereas section 106(3)(a) of the Constitution provides that a person loses membership of a provincial legislature if that person ceases to be eligible on the grounds listed in section 106(1);

and whereas the Constitution of the Republic of South Africa Amendment Act, 2002 (Act No. 18 of 2002), amended the Constitution in order to enable a member of a Municipal Council to become a member of another party whilst retaining membership of that Council: and to enable an existing party to merge with another party, or to subdivide into more than one party, or to subdivide and any of the subdivisions to merge with another party, whilst allowing a member of a Council affected by such changes to retain membership of that Council;

and whereas the need exists for uniformity within the three spheres of government regarding loss or retention of membership of the National Assembly, any provincial legislature or any Municipal Council in the event of a change of party membership, or mergers or subdivision or subdivision and merger of parties,

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 47 of Act 108 of 1996

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 105 of Act 108 of 1996

3. 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

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

5. Schedule 6A to the Constitution is hereby amended by the deletion of item 9.

Insertion of Schedule 6A in Act 108 of 1996

6. The following Schedule is hereby inserted in the Constitution after Schedule 6, the existing Schedule 6A becoming Schedule 6B:

“Schedule 6A

Retention of membership of National Assembly or provincial legislature, after a change of party membership, mergers between parties, subdivision of parties and subdivision and merger of parties

Definition

1. In this Schedule ‘legislature’ means the National Assembly or any provincial legislature.

Retention of membership of legislature in event of change of party membership

2. (1) Subject to item 4, a member of a legislature who becomes a member of a party (the new party) other than the party which nominated that person as a member (the nominating party), whether the new party participated in an election or not, remains a member of that legislature if that member, whether by himself or herself or together with one or more other members who, during a period referred to in item 4 (1) (a) or (b), ceased to be members of the nominating party, represents not less than 10 per cent of the total number of seats held by the nominating party in that legislature.

(2) The seat held by a member referred to in subitem (1) is regarded as having been allocated to the new party which the member represents.

Retention of membership of legislature in event of mergers, subdivision and subdivision and merger of parties

3. (1) Subject to item 4, any party (the original party) which represented in a legislature may—

(a)

merge with another party, whether that party participated in an election or not; or

(b)

subdivide into more than one party or subdivide and any subdivision may merge with another party, whether that party participated in an election or not, if the members of a subdivision leaving the original party represent not less than 10 per cent of the total number of seats held by the original party in that legislature.

(2) If a party merges with another party or subdivides into more than one party or subdivides and any subdivision merges with another party in terms of subitem (1), the members concerned remain members of that legislature and the seats held by them are regarded as having been allocated to the party which they represent pursuant to any merger, subdivision or subdivision and merger contemplated in subitem (1).

Period of application of items 2 and 3 and further requirements

4. (1) The provisions of items 2 and 3 only apply—

(a)

for a period of 15 days from the first to the fifteenth day of September in the second year following the date of an election of the legislature; and

(b)

for a period of 15 days from the first to the fifteenth day of September in the fourth year following the date of an election of the legislature.

(2) For the purpose of subitem (1) “year” means a period of 365 days.

(3) During each period referred to in subitem (1) (a) and (b)—

(a)

a member of a legislature may only once change membership of a party, by informing the Speaker of the legislature thereof in writing and by submitting to the Speaker written confirmation from such other party that he or she has been accepted as a member of that party; and

(b)

a party may only once—

(i)

merge with another party;

(ii)

subdivide into more than one party; or

(iii)

subdivide and any subdivision may merge with another party,

by informing the Speaker of the legislature thereof in writing and by submitting to the Speaker written confirmation from the other party of the names of all members involved in the merger or subdivision, and that the party has accepted the merger; and

(c)

no party represented in a legislature may—

(i)

suspend or terminate the party membership of a member representing that party in that legislature; or

(ii)

perform any act whatsoever which may cause such a member to be disqualified from holding office as such a member,

without the written consent of the member concerned.

(4) A party which has not been registered in terms of any law applicable to the registration of political parties is regarded as a party for the purposes of this Schedule, but such a party must apply for registration as a party in accordance with applicable law within the period referred to in subitem (1) (a) or (b). If the party is not registered within four months after the expiry of that period, it is regarded as having ceased to exist, and the seats in question must be allocated to the remaining parties in accordance with applicable law.

Composition of legislature maintained until election or reconstitution in terms of Schedule

5. (1) After the expiry of a period referred to in item 4 (1) (a) or (b), the composition of a legislature which has been reconstituted as a result of any conduct in terms of item 2 or 3 is maintained until the next election of that legislature or until the composition of the legislature is reconstituted in accordance with item 2 or 3.

(2) Within seven days after the expiry of a period referred to in item 4 (1) (a) or (b), each party represented in a legislature contemplated in subitem (1) must submit a list of its candidates to the Secretary of the legislature.

(3) The Speaker of a legislature contemplated in subitem (1) must, within seven days after the expiry of a period referred to in item 4 (1) (a) or (b), publish a notice in the Gazette which must reflect—

(a)

the number of seats allocated to each party represented in that legislature; and

(b)

the name of, and party represented by, each member.

Transitional arrangement in respect of retention of membership of legislature in event of change of party membership, mergers between parties, subdivision of parties and subdivision and merger of parties

6. (1) During the first 15 days immediately following the date of the commencement of this Schedule—

(a)

a member of a legislature may become a member of another party (the new party), whether the new party participated in an election or not, whilst remaining a member of the legislature concerned and the seat held by that member must be regarded as having been allocated to the new party of which that member has become a member; and

(b)

any party which is represented in a legislature may—

(i)

merge with another party, whether that party participated in an election or not; or

(ii)

subdivide into more than one party or subdivide and any subdivision may merge with another party, whether that party participated in an election or not,

whilst the members concerned remain members of that legislature and the seats held by them must be regarded as having been allocated to the party which they represent pursuant to any merger, subdivision or subdivision and merger contemplated in this paragraph.

(2) The provisions of item 4 (3) and (4) and item 5 are also applicable in respect of subitem (1), and any reference therein to a period referred to in item 4 (1) (a) or (b) must be construed as a reference to the period referred to in subitem (1).”.

Amendment of Schedule 2 to Act 200 of 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 and Schedule 6 to Act 108 of 1996

7. Schedule 2 to the Constitution of the Republic of South Africa, 1993 is hereby amended—

(a)

by the substitution for item 23 of the following item:

“Vacancies

23. (1) In the event of a vacancy in a legislature to which this Schedule applies, the party which [nominated] the vacating member represented shall fill the vacancy by nominating a person—

(a)

whose name appears on the list of candidates—

(i)

from which [the vacating member was] that party's members were originally nominated; or

(ii)

where applicable, submitted by a party in terms of item 5 (2) of Schedule 6A to the new Constitution; and

(b)

who is the next qualified and available person on the list.

(2) A nomination to fill a vacancy shall be submitted to the Speaker in writing.

(3) If a party represented in a legislature dissolves or ceases to exist and the members in question vacate their seats in consequence of [item 23A (1)] section 47 (3) (c) or 106 (3) (c) of the new Constitution, the seats in question shall be allocated to the remaining parties mutatis mutandis as if such seats were forfeited seats in terms of item 7 or 14, as the case may be.”; and

(b)

by the substitution for item 23A of the following item:

“Party may change name

23A. Despite sections 47 (3) (c) and 106 (3) (c) of the new Constitution any existing political party may at any time change its name.”.

Repeal of Act 22 of 2002

8. The Loss or Retention of Membership of National and Provincial Legislatures Act, 2002 (Act No. 22 of 2002), is hereby repealed.

Amendment of other laws

9. The laws mentioned in column 2 of the Table are hereby amended to the extent indicated in column 3 of the Table:

Table

1 Act No.	2 Short title	3 Extent of amendment
117 of 1998	Local Government: Municipal Structures Act, 1998	Amendment of sections 26, 29, 63, 66, 93A, 93B, item 10 of Schedule 1, item 4 of Schedule 2 and the Table of Contents by the substitution for the words “Schedule 6A to the Constitution”, wherever they occur, of the words “Schedule 6B to the Constitution”.
20 of 2002	Local Government: Municipal Structures Amendment Act, 2002	Amendment of section 12 by the substitution for the words “Schedule 6A to the Constitution”, wherever they occur, of the words “Schedule 6B to the Constitution”.

Short title and commencement

10. This Act is called the Constitution Tenth Amendment Act of 2003, and comes into operation on a date set by the President by proclamation.

[S. 10 substituted by s. 2 of Act No. 5 of 2005.]