# Constitution of the Republic of South Africa Amendment Act, 2002

The Constitution of the Republic of South Africa Amendment Act, 2002 (Act No. 18 of 2002) is an Act of the Parliament of South Africa amending the Constitution of the Republic of South Africa, 1996. It came into effect on 20 June 2002, simultaneously with the Constitution of the Republic of South Africa Second Amendment Act, 2002. It allowed municipal councillors to cross the floor—to move from one political party to another without losing their seats—at certain periods between municipal elections. The changes made by this act were later reversed by the Constitution Fifteenth Amendment Act of 2008.
The act was renamed to the Constitution Eighth Amendment Act of 2002 by the Citation of Constitutional Laws Act, 2005.
Note that [words in bold type in square brackets] indicate omissions from existing enactments, while words underlined with a solid line indicate insertions in existing enactments.
(English text signed by the President.) (Assented to 19 June 2002.)
Act
To amend the Constitution of the Republic of South Africa, 1996, so as to enable a member of a Municipal Council to become a member of another party whilst retaining membership of that Council; to enable 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 Council affected by such changes to retain membership of that Council; and to provide for matters connected therewith.
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 item 23A of Schedule 2 to the Constitution of the Republic of South Africa, 1993, provides that an Act of Parliament may, within a reasonable period after the new Constitution took effect, be passed in accordance with section 76(1) of the new Constitution to amend that item and item 23 in order to provide for—
* the manner in which it will be possible for a member of a legislature who ceases to be a member of the party which nominated that member, to retain membership of such legislature; and
* any existing party to merge with another party, or any party to subdivide into more than one party, whilst allowing a member of a legislature affected by such changes, to retain membership of such legislature;
and whereas section 157 of the Constitution requires an electoral system for local government—
* comprising either proportional representation or proportional representation combined with a system of ward representation; and ​
* ensuring that the total number of members elected from each party reflects the total proportion of the votes recorded for those parties;
and whereas section 158 provides for certain criteria for eligibility for membership of a Municipal Council;
and whereas the Local Government: Municipal Structures Act, 1998, provides for an electoral system for local government comprising proportional representation combined with a system of ward representation;
and whereas no provision has been made in the Constitution in respect of local government for—
* a councillor to retain membership of a Municipal Council where such a councillor ceases to be a member of the party which nominated that councillor; and
* any party to merge with another party, or any party to subdivide into more than one party or any party to subdivide and any one 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 section 27 of the Local Government: Municipal Structures Act, 1998, provides that a councillor—
* who was elected from a party list and ceases to be a member of that party; or
* who was elected to represent a ward and who was—
(i)
(ii)
ceases to be a member of the Municipal Council in question;
and whereas the need exists for uniformity within the three spheres of government regarding loss or retention of membership of any legislature or 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 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)
“(1) Subject to Schedule 6A, a Municipal Council consists of—
(a)
(b)
(i)
(ii)
(b)
“(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
2. The following Schedule is hereby inserted into the Constitution of the Republic of South Africa, 1996:
“Schedule 6A
Loss or retention of membership of Municipal Councils, after a change of party membership, mergers between parties, subdivision of parties and subdivision and merger of parties, and filling of vacancies
Loss or retention of Council membership
1. (1) A councillor not representing a ward ceases to be a member of a Municipal Council if that councillor, other than in accordance with item 2, 3 or 7, ceases to be a member of the party which nominated that councillor as a member of that Council.
(2) A councillor representing a ward in a Municipal Council ceases to be a member of that Council if that councillor, other than in accordance with item 2, 3 or 7—
(a)
(b)
Retention of Council membership in event of change of party membership
2. (1) Subject to item 4, a councillor—
(a)
(b)
(i)
(aa)
(bb)
(ii)
if the councillor referred to in paragraphs (a) and (b) (i), whether by himself or herself or together with one or more other councillors who, during a period referred to in item 4 (1) (a) (i) or (ii) ceased to be members of the original party, represent not less than 10 per cent of the total number of seats held by the original party in that Council.
(2) The seat held by a councillor referred to in subitem (1) (a) must be regarded as having been allocated to the new party of which that councillor has become a member.
(3) The ward represented by a councillor referred to in subitem (1) (b) must be regarded as having been—
(a)
(b)
​Retention of Council membership in event of mergers, subdivision and subdivision and merger of parties
3. (1) Subject to item 4, any political party (the original party) which is represented in a Municipal Council may—
(a)
(b)
(2) If a party merges with another party or subdivides into more than one party or subdivides and merges with another party in terms of subitem (1), the councillors concerned remain members of that Municipal Council and the seats held by them must be regarded as having been allocated to the new party which they represent pursuant to any merger, subdivision or subdivision and merger as contemplated in subitem (1).
Period of application of items 2 and 3 and further requirements
4. (1) (a) The provisions of items 2 and 3 only apply—
(i)
(ii)
but do not apply during the year ending on 31 December 2002.
(b)
(2) During a period referred to in subitem (1) (a) (i) or (ii)—
(a)
(i)
(ii)
(iii)
by informing an officer designated by the Electoral Commission thereof in writing, and if that councillor has changed membership of a party or has become a member of a party, by submitting to that officer written confirmation from the party in question that he or she has been accepted as a member of that party; and
(b)
(i)
(ii)
(iii)
by informing an officer designated by the Electoral Commission thereof in writing, and by submitting to that officer written confirmation from the party—
(aa)
(bb)
(c)
(i)
(ii)
without the written consent of the councillor concerned.
​Composition of Council maintained until election or by-election, or reconstitution in terms of Schedule
5. After the expiry of a period referred to in item 4 (1) (a), the composition of a Municipal Council, which has been reconstituted as a result of any conduct in terms of item 2 or 3, is maintained until the next election of all Municipal Councils or until the composition of that Municipal Council is reconstituted in accordance with item 2 or 3 or until a by-election is held in that Municipal Council.
Reconstitution by Municipal Councils
6. (a) A Municipal Council referred to in item 5 which appoints members of another Municipal Council, as contemplated in section 157 (1) (b), must within 15 days of the expiry of a period referred to in item 4 (1) (a) (i) or (ii) apply again the procedure provided for in national legislation for appointing such members to represent the appointing Council.
(b)
(i)
(ii)
Transitional arrangement in respect of retention of membership of Municipal Councils in event of change of party membership, merger between parties, subdivision of parties and subdivision and merger of parties
7. (1) During the first 15 days immediately following the date of the commencement of this Schedule—
(a)
(b)
(i)
(ii)
and the ward represented by such a councillor must be regarded as having been—
(aa)
(bb)
(c)
(i)
(ii)
whilst the councillors concerned remain members of that Council 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 items 4 (2), 5 and 6 are also applicable in respect of subitem (1), and any reference therein to a period referred to in item 4 (1) (a) (i) or (ii) must be construed as a reference to the period referred to in subitem (1).
Filling of vacancies
8. Vacancies in a Municipal Council must be filled in terms of national legislation.
Amendment of Schedule
9. This Schedule may be amended by an Act of Parliament passed in accordance with section 76 (1).”.
Short title
3. This Act is called the Constitution of the Republic of South Africa Amendment Act, 2002.
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