General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Act 55 of 2008


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 523 Cape Town 9 January 2009 No. 31787
THE PRESIDENCY No. 20 9 January 2009
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 55 of 2008: General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Act, 2008.

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(English text signed by the President.) (Assented to 6 January 2009.)
ACT To amend the— • Public Funding of Represented Political Parties Act, 1997, so as to—
— make further provision for the accountability of political parties in respect of moneys allocated from the Represented Political Parties' Fund;
— substitute a reference to an obsolete law; and — empower the Electoral Commission to appoint an auditor in certain
circumstances; and • Public Funding of Represented Political Parties Act, 1997, the Determination of
Delegates (National Council of Provinces) Act, 1998, the Electoral Act, 1998, the Local Government: Municipal Structures Act, 1998, and the Local Govern­ ment: Municipal Structures Amendment Act, 2002, so as to provide for matters consequential to the abolition of the right—
— of a member of the National Assembly, a provincial legislature or a Municipal Council to become a member of another political party whilst retaining membership of the National Assembly, that provincial legislature or that Council; and
— of an existing political party to merge with another political party, or to subdivide into more than one political party, or to subdivide and to permit any of the subdivisions to merge with another political party, whilst allowing a member of the National Assembly, a provincial legislature or a Council affected by such changes to retain membership of the National Assembly, that provincial legislature or that Council;
and to provide for matters connected therewith.
Act No. 55, 2008 GENERAL LAWS (LOSS OF MEMBERSHIP OF NATIONAL ASSEMBLY, PROVINCIAL LEGISLATURE OR MUNICIPAL
COUNCIL) AMENDMENT ACT, 2008
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.
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Act No. 55, 2008 GENERAL LAWS (LOSS OF MEMBERSHIP OF NATIONAL ASSEMBLY, PROVINCIAL LEGISLATURE OR MUNICIPAL
COUNCIL) AMENDMENT ACT, 2008
T^arliament 0 f the Republic of South Africa enacts as follows:—
Amendment of section 5 of Act 103 of 1997, as amended by section 2 of Act 15 of 2005
1. Section 5 of the Public Funding of Represented Political Parties Act, 1997 5 (hereinafter referred to as the Funding Act), is hereby amended by the substitution for subsection (4) of the following subsection:
"(4) The allocation of moneys from the Fund to a political party will end when the party ceases [qualifying therefor] to qualify for it in terms of subsection (\)(a). [Subject to section 6A, a] A political party must 10 within 21 days after the date on which it has so ceased to qualify, repay to the Commission the unspent balances, as at that date, of all moneys that had been allocated to it in terms of this section.".
Amendment of section 6 of Act 103 of 1997, as amended by section 3 of Act 15 of 2005 15
2. Section 6 of the Funding Act is hereby amended— (a) by the substitution for subsection (1) of the following subsection:
"(1) Every political party to which moneys are allocated from the Fund[, must]— (a) must keep, with a bank registered in the Republic, a separate 20
banking account into which all moneys so allocated to the party must be deposited; [and]
(b) must appoint an office-bearer or official of that party as its accounting officer with regard to all moneys from time to time allocated to that party from the Fund. The accounting officer's 25 responsibility is to account for the moneys so allocated to that party, and includes, in addition to any other duties imposed by this Act, the duty to ensure the party's compliance with the requirements of this Act, and, in particular, to ensure that those moneys are not paid out for a purpose not authorised by this Act; and 30
(c) is accountable to the Commission in respect of all moneys so allocated to that party.";
(b) by the substitution in subsection (3) for paragraph (b) of the following paragraph:
"(b) submit that statement and those books and records of account to [a 35 public accountant and] an auditor registered and practising as such in terms of the [Public Accountants' and Auditors' Act, 1991 (Act No. 80 of 1991)] Auditing Profession Act, 2005 (Act No. 26 of 2005), to be audited."; and
(c) by the insertion of the following subsection after subsection (5): 40 "(5A) (a) The Commission may appoint an auditor registered and
practising as such in terms of the Auditing Profession Act, 2005, t< (i) verify the auditor's report and audited statement submitted to it in
terms of subsection (5); or (ii) audit the statement referred to in subsection (3) and the books and
records of account kept in terms of this section if the accounting officer of a political party fails to have that statement and those books and records of account audited as contemplated in subsection (3).
(b) Subsection (4) applies, with the necessary changes, to an auditor who has performed an audit contemplated in paragraph (a)(\\).
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Act No. 55, 2008 GENERAL LAWS (LOSS OF MEMBERSHIP OF NATIONAL ASSEMBLY, PROVINCIAL LEGISLATURE OR MUNICIPAL
COUNCIL) AMENDMENT ACT, 2008
(c) The verification of the auditor's report and audited statement contemplated in paragraph (a)(i) or the auditor's report and audited statement contemplated in paragraph (a)(ii), as the case may be, must be submitted to the Commission by the auditor concerned within one month after the date of his or her appointment by the Commission.". 5
Repeal of section 6A of Act 103 of 1997, as inserted by section 4 of Act 15 of 2005
3. Section 6A of the Funding Act is hereby repealed.
Repeal of section 9A of Act 103 of 1997, as inserted by section 7 of Act 15 of 2005
4. Section 9A of the Funding Act is hereby repealed.
Amendment of section 10 of Act 103 of 1997, as amended by section 8 of Act 15 of 10 2005
5. Section 10 of the Funding Act is hereby amended by the substitution in subsection (1) for paragraph (d) of the following paragraph:
"(d) prescribing the procedure according to which and manner in which payments from, and to, the Fund are to be made after any election of Parliament or a 15 provincial legislature [or the expiry of the period referred to in item 4(l)(a) or (b) of Schedule 6A to the Constitution]; and".
Amendment of Preamble of Act 103 of 1997, as amended by section 9 of Act 15 of 2005
6. The Preamble of the Funding Act is hereby amended by the deletion of the fifth 20 paragraph.
Amendment of section 2 of Act 69 of 1998, as amended by section 11 of Act 15 of 2005
7. Section 2 of the Determination of Delegates (National Council of Provinces) Act, 1998, is hereby amended by the substitution for subsection (4) of the following 25 subsection:
"(4) (a) If the total number of special delegates determined in terms of subsection (3) in respect of a particular provincial legislature is less than four, the delegates of the parties that are entitled to only one delegate in the delegation of that province must, despite subsection (1), become special delegates in the 30 sequence from the lowest to the highest number of votes[, including combined votes in the case of a merged party contemplated in section 6\(2)(b) of the Constitution,] that have been recorded for those parties during the last election of that provincial legislature, until four special delegates have been allocated to parties in the provincial delegation. 35
(b) If the total number of special delegates determined in terms of subsection (3) in respect of a particular provincial legislature is more than four, those special delegates must, despite subsections (2) and (3), become permanent delegates in the sequence from the highest to the lowest number of votes[, including combined votes in the case of a merged party contemplated in section 61(2)(b) of the 40 Constitution,] that have been recorded for the parties concerned during the last election of that provincial legislature, until six permanent delegates have been allocated to parties in the provincial delegation.
[(c) For the purposes of paragraphs (a) and (b), any party that is entitled to a delegate in the delegation of the province concerned and that— 45
(i) came into existence on account of a change of party membership or subdivision of parties contemplated in section 61(2)(ft) of the Constitu­ tion; and
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Act No. 55, 2008 GENERAL LAWS (LOSS OF MEMBERSHIP OF NATIONAL ASSEMBLY, PROVINCIAL LEGISLATURE OR MUNICIPAL
COUNCIL) AMENDMENT ACT, 2008
(ii) did not participate in the last election of that provincial legislature, must be regarded as having recorded no votes during the last election of the provincial legislature concerned.]
(d) If more than one party that is entitled to a delegate in a provincial legislature recorded the same number of votes during the last election of that provincial 5 legislature [or must be regarded in terms of paragraph (c) as having recorded no votes during that election], the legislature concerned must, in a manner that is consistent with democracy—
(i) in the case of paragraph (a), elect so many delegates from the delegates of those parties to become special delegates as may be required to allocate 10 four special delegates to parties in the provincial delegation; or
(ii) in the case of paragraph (b), despite subsections (2) and (3), elect so many special delegates of those parties to become permanent delegates as may be required to allocate six permanent delegates to parties in the provincial delegation.". 15
Amendment of item 23 of Schedule 1A to Act 73 of 1998, as inserted by section 25 of Act 34 of 2003
8. Item 23 of Schedule 1A to the Electoral Act, 1998, is hereby amended by the substitution for subitem (1) of the following subitem:
"(1) In the event of a vacancy in a legislature to which this Schedule applies, the 20 party which the vacating member represented must fill the vacancy by nominating a person— (a) whose name appears on the list of candidates—
(i) from which that party's members were originally nominated; [or (ii) where applicable, submitted by a party in terms of item 5(2) of 25
Schedule 6A to the Constitution;] and (b) who is the next qualified and available person on the list.".
Amendment of section 26 of Act 117 of 1998, as amended by section 1 of Act 20 of 2002 and section 9 of the Constitution Tenth Amendment Act of 2003
9. Section 26 of the Local Government: Municipal Structures Act, 1998 (hereinafter 30 referred to as the Structures Act), is hereby amended by the substitution in subsection (1) for paragraph (b) of the following paragraph:
"(b) is appointed as a representative of a local council to a district council for a period ending when the next local council is declared elected[, except that where such a person is replaced as a result of the provisions of item 6(a) 35 of Schedule 6B to the Constitution, the newly appointed representative is appointed for the remainder of the replaced representative's term].".
Amendment of section 27 of Act 117 of 1998, as amended by section 93 of Act 27 of 2000, section 121 of Act 32 of 2000 and section 2 of Act 20 of 2002
10. Section 27 of the Structures Act is hereby amended— 40 (a) by the insertion after paragraph (b) of the following paragraph:
"(c) was elected from a party list referred to in Schedule 1 or 2 and ceases to be a member of the relevant party;"; and
(b) by the addition of the following paragraph: "(f) was elected to represent a ward and who— 45
(i) was nominated by a party as a candidate in the ward election and ceases to be a member of that party; or
(ii) was not nominated by a party as a candidate in the ward election and becomes a member of a party.".
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Act No. 55, 2008 GENERAL LAWS (LOSS OF MEMBERSHIP OF NATIONAL ASSEMBLY, PROVINCIAL LEGISLATURE OR MUNICIPAL
COUNCIL) AMENDMENT ACT. 2008
Amendment of section 29 of Act 117 of 1998, as amended by section 3 of Act 20 of 2002 and section 9 of the Constitution Tenth Amendment Act of 2003
11. Section 29 of the Structures Act is hereby amended by the deletion of subsection (3).
Amendment of section 62 of Act 117 of 1998, as amended by section 4 of Act 20 of 5 2002
12. Section 62 of the Structures Act is hereby amended by the deletion in subsection (1) of paragraph (cA).
Amendment of section 63 of Act 117 of 1998, as substituted by section 5 of Act 20 of 2002 and amended by section 9 of the Constitution Tenth Amendment Act of 2003 10
13. Section 63 of the Structures Act is hereby amended— (a) by the substitution for subsection (1) of the following subsection:
"(1) Each metropolitan subcouncil consists of— (a) the councillors representing the wards included in the subcouncil
area; and 15 (b) an additional number of councillors allocated in terms of Part 1 of
Schedule 4[, except that where— (i) metropolitan subcouncils are established;
(ii) the areas of existing metropolitan subcouncils are changed; or 20
(iii) the number of existing metropolitan subcouncils are changed,
after the composition of a metro council has changed as a result of the provisions of item 2, 3 or 7 of Schedule 6B to the Constitution, the additional number of councillors is deter- 25 mined by the metro council so that the seats held by councillors referred to in subsection (2)(a) are as far as possible equally distributed amongst all the metropolitan subcouncils].";
(b) by the deletion of subsection (1A); and (c) by the substitution for subsection (2) of the following subsection: 30
"(2) The councillors referred to in subsection (\)(b) must— (a) consist of councillors elected to the metro council from party lists in
accordance with Part 3 of Schedule 1; and (b) be appointed to the metropolitan subcouncil—
(i) in accordance with Part 1 of Schedule 4[; or 35 (ii) where the composition of the metro council in question has
changed as a result of the provisions of item 2, 3 or 7 of Schedule 6B to the Constitution, in accordance with the mechanism referred to in section 62(l)(cA)].".
Substitution of section 66 of Act 117 of 1998, as substituted by section 6 of Act 20 of 40 2002 and amended by section 9 of the Constitution Tenth Amendment Act of 2003
14. The following section is hereby substituted for section 66 of the Structures Act:
"Term of office of members
66. (1) The section 63(\)(b) members of a metropolitan subcouncil are appointed for a term ending, subject to [subsection (2) and] section 67, 45 when the next metro council is declared elected.
[(2) Where a section 63(l)(b) member of a metropolitan subcouncil is replaced as a result of the provisions of item 6(b) of Schedule 6B to the Constitution, the newly appointed member is, subject to section 67, appointed for the remainder of the replaced member's term.]". 50
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Act No. 55, 2008 GENERAL LAWS (LOSS OF MEMBERSHIP OF NATIONAL ASSEMBLY, PROVINCIAL LEGISLATURE OR MUNICIPAL
COUNCIL) AMENDMENT ACT, 2008
Repeal of sections 93A and 93B of Act 117 of 1998, as inserted by section 7 of Act 20 of 2002 and amended by section 9 of the Constitution Tenth Amendment Act of 2003
15. Sections 93A and 93B of the Structures Act are hereby repealed.
Substitution of item 10 of Schedule 1 to Act 117 of 1998, as substituted by section 93 5 of Act 27 of 2000 and section 8 of Act 20 of 2002 and amended by section 9 of the Constitution Tenth Amendment Act of 2003
16. The following item is hereby substituted for item 10 of Schedule 1 to the Structures Act:
"Submission of lists of candidates 10
10. (1) A list of candidates may be submitted only by a party. [(2) A party that has gained representation in a municipality as a
result of the provisions of item 2, 3 or 7 of Schedule 6B to the Constitution, may submit a list of candidates within seven days after the expiry of a period referred to in item 4(l)(a)(i) or (ii) of Schedule 6B 15 to the Constitution.]".
Substitution of item 4 of Schedule 2 to Act 117 of 1998, as substituted by section 93 of Act 27 of 2000 and section 9 of Act 20 of 2002 and amended by section 9 of the Constitution Tenth Amendment Act of 2003
17. The following item is hereby substituted for item 4 of Schedule 2 to the Structures 20 Act:
"Submission of lists of candidates
4. (1) A list of candidates may be submitted only by a party. [(2) A party that has gained representation in a municipality as a
result of the provisions of item 2, 3 or 7 of Schedule 6B to the 25 Constitution, may submit a list of candidates within seven days after the expiry of a period referred to in item 4(l)(a)(i) or (ii) of Schedule 6B to the Constitution.]".
Amendment of Table of Contents of Act 117 of 1998, as amended by section 11 of Act 20 of 2002 and section 9 of the Constitution Tenth Amendment Act of 2003 30
18. The Table of Contents of the Structures Act is hereby amended by the deletion of the references to sections 93A and 93B, respectively.
Repeal of section 12 of Act 20 of 2002, as amended by section 9 of the Constitution Tenth Amendment Act of 2003
19. Section 12 of the Local Government: Municipal Structures Amendment Act, 35 2002, is hereby repealed.
Repeal of section 13 of Act 20 of 2002
20. Section 13 of the Local Government: Municipal Structures Amendment Act, 2002, is hereby repealed.
Amendment of section 14 of Act 20 of 2002 40
21. Section 14 of the Local Government: Municipal Structures Amendment Act, 2002, is hereby amended by the deletion of subsection (2).
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Act No. 55, 2008 GENERAL LAWS (LOSS OF MEMBERSHIP OF NATIONAL ASSEMBLY, PROVINCIAL LEGISLATURE OR MUNICIPAL
COUNCIL) AMENDMENT ACT. 2008
Short title and commencement
22. This Act is called the General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Act, 2008, and comes into operation on a date set by the President by proclamation in the Gazette.