Constitutional Matters Amendment Act, 2005

31 August 2005 No. 27989 THE PRESIDENCY No. 866 31 August 2005 It is hereby notified that the President has assented to the following Act, which is hereby published for general information:– No. 15 of 2005: Constitutional Matters Amendment Act, 2005 AIDS HELPLINE: 0800-123-22 Prevention is the cure 2 No. 27989 GOVERNMENT GAZETTE, 31 AUGUST 2005 Act NO. 15,2005 CONSTITUTIONAL MA’lTERS AMENDMENT ACT, 2005 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. (English text signed by the President.) (Assented to 30 August 2005.) ACT To amend the Public Funding of Represented Political Parties Act, 1997, SO as to provide for the re-allocation of moneys from the Represented Political Parties’ Fund and to regulate the repayment of unspent balances of all moneys allocated to political parties participating in Parliament and provincial legislatures where a member of a legislature becomes a member of another party whilst retaining membership of that legislature or where an existing party merges with another party, subdivides into more than one party or subdivides and any one subdivision merges with another party; to amend the Determination of Delegates (National Council of Provinces) Act, 1998, so as to provide for the re-determination of certain delegates of a provincial legislature that has been reconstituted on account of changes of party membership and mergers or subdivision of parties; and to provide for matters connected therewith. E IT ENACTED by the Parliament of the Republic of South Africa, as B foiiows:- Amendment of section 1 of Act 103 of 1997

1. Section 1 of the Public Funding of Represented Political Parties Act, 1997 thereinafter referred to as the Funding Act), is hereby amended by the insertion of the following definition before the definition of “financial year”: 5 “ ‘Constitution’ means the Constitution of the Republic of South Africa, 1996;”. Amendment of section 5 of Act 103 of 1997

2. Section 5 of the Funding Act is hereby amended- (a) by the substitution in subsection (l)(a) for the words preceding subparagraph 10 (i) of the following words: “[Every] Subject to this Act, every political party is entitled to be allocated moneys from the Fund for any financial year that it is represented-”; and that date, of all moneys that had been allocated to it in terms of this Section 6 of the Funding Act is hereby amended by the substitution for subsections and (4) of the following subsections, respectively: 5 “(3) Within two months after the end of a financial year for which moneys have been allocated to any political party from the Fund, that accounting officer must= 0 prepare a statement showing all amounts received by the party from the Fund during that financial year and its application of those 10 moneys, as well as the purposes for which the various amounts have been applied[, whereafter that accounting officer must have]& fb) submit that statement and those books and records of account a public accountant and auditor registered and [audited by] practising as such in terms of the Public Accountants’ and Auditors’ 15 Act, 1991 (Act No. 80 of 1991), to be audited. (4) An auditor who has performed an audit contemplated in subsection the (3)m, must in the auditor’s report express an opinion as to whether allocated moneys were spent for purposes [not] authorised by this Act.”. Insertion of section 6A in Act 103 of 1997

4. The following section is hereby inserted in the Funding Act after section 6: “Repayment of unspent balances 6A. (1) If a member of a legislature becomes a member contemplated i item 2(1) of Schedule 6A to the Constitution, the nominating part contemplated in that item does not, subject to subsection (3), have to repa to the Commission the unspent balances of all moneys that had bee allocated to it in terms of section 5 in respect of the seat held by the membe concerned. (2) A political party which immediately prior to the period referred to i item 4(l)(a) or (b) of Schedule 6A to the Constitution qualified for th allocation of moneys from the Fund in terms of section 5 does not have tl repay to the Commission the unspent balances of all moneys that had bee] allocated to it in terms of that section if it subdivides in a manne contemplated in item 3( l)(b) of Schedule 6A to the Constitution, and an: subdivision of that party continues to- (a) represent that party in the legislature concerned after the date on whicl the Speaker of a legislature has published the notice contemplated ii item 5(3) of Schedule 6A to the Constitution; and (b) qualify for the allocation of moneys from the Fund in terms of the saic section, whether the subdivision of that party has changed the name of that party o not. (3) A political party which immediately prior to the period referred to iI item 4(l)(a) or (b) of Schedule 6A to the Constitution qualified for the allocation of moneys from the Fund in terms of section 5 must, in accordance with this section, repay to the Commission the unspent balances of all moneys that had been allocated to it in terms of that section if it ceases to qualify for the allocation of moneys from the Fund in terms of the said section as a result of its- (a) member or members changing party membership contemplated in item 2( 1); (b) merger with another political party in terms of item 3( l)(a); or (c) subdivision in a manner contemplated in item 3( l)(b), of Schedule 6A to the Constitution. (4) The person who last held the office of accounting officer contem- plated in section 6( l)(b) of a political party contemplated in subsection (3), or if he or she is not available the leader of that party, must on the last day 20 25 30 35 IO 5 0 5 4 No.27989 GOVERNMENT GAZETTE, 31 AUGUST 2005 Act No. 15,2005 CONSTITUTIONAL MATTERS AMENDMENT ACT, 2005 of September of the financial year in question close the books and record! of account of the party kept in terms of section 6 and within one montk thereafter- (a) prepare a statement showing- (ii) (i) all amounts received by the party from the Fund during tha financial year and its application of those moneys, as well ar the purposes for which the various amounts have been applied the unspent balances of the party, if any, as at the date when it: books and records of account are so closed, of all moneys thai had been allocated to it in terms of section 5 ; and all the existing legal financial obligations of the party until thc end of the financial year in question; and (iii) (b) submit that statement and those books and records of account to i public accountant and auditor registered and practising as such ir terms of the Public Accountants’ and Auditors’ Act, 1991 (Act No. 8C of 1991), to be audited. (5) An auditor who has performed an audit contemplated in subsection (4)(b), must in the auditor’s report express an opinion- (a) as to whether or not the allocated moneys were spent for purposes authorised by this Act; and (b) on the correctness of the information referred to in subsection (4)(a)(ii) and (iii). (6) The auditor’s report and audited statement, as well as all statements for the financial year in question of the banking account of the political party kept in terms of section 6(l)(a) and documents in support of the information referred to in subsection (4)(u)(iii), must be submitted to the Commission by the accounting officer or the leader of the party, as the case may be, within two months after the date on which the books and records of account of the party were closed. (7) The Commission must within two months after receipt of the auditor’s report, audited statement, statements of the banking account of the political party and documents in support of the information referred to in subsection (4)(a)(iii) submitted to it in terms of subsection (6)- (a) determine the amount of the unspent balances of all moneys that had been allocated to the political party in terms of section 5 that must be repaid to the Commission, taking into account the information referred to in subsection (4)(a)(iii); (b) determine the date on which that amount of unspent balances of moneys must be repaid to the Commission, which date must be before the last day of the financial year in question; and (c) inform the accounting officer or the leader of the party, as the case may be, of the amount and date determined in terms of paragraphs (a) and (b). (8) (a) The Commission may for the purposes of subsection (7)(u)- (i) direct the accounting officer or the leader of the party, as the case may be, to provide it with such other information as it may deem necessary; and (ii) appoint a public accountant and auditor registered and practising as such in terms of the Public Accountants’ and Auditors’ Act, 1991 (Act No. 80 of 1991), to- (uu) verify the auditor’s report and audited statement submitted to it in terms of subsection (6); or (bb) audit the statement referred to in subsection (4)(a) and the books and records of account kept in terms of section 6. (b) Subsection ( 5 ) applies, with the necessary changes, to an auditor who has performed an audit contemplated in paragraph (a)(ii)(bb). (c) The verification of the auditor’s report and audited statement contemplated in paragraph (u)(ii)(uu) or the auditor’s report and audited statement contemplated in paragraph (a)(ii)(bb), 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. (9) The accounting officer or the leader of the party, as the case may be, must- 1 5 10 15 20 25 30 35 40 45 50 55 50 TTE, 31 AUGUST 2005 STITUTlONAL MATTERS AMENDMENT ACT, 2005 No.27989 5 Act No. 15,2005 within 14 days after the receipt of a direction referred to in subsection (8)(a)(i), comply therewith; and b) repay to the Commission the amount of the unspent balances of moneys contemplated in subsection (7)(u) on or before the date determined in terms of subsection (7)(b). (10) Any unspent balances of moneys repaid in terms of this section during a particular financial year, must be credited to the Fund and carried forward to the next financial year. 5 (1 1) The Commission must deal with any circumstances, other than those provided for in this section, that arise during a period referred to in item 10 4(l)(a) or (b) of Schedule 6A to the Constitution in the manner it deems appropriate, taking into account the objectives and principles provided for in this Act.”. Amendment of section 8 of Act 103 of 1997

5. Section 8 of the Funding Act is hereby amended by the substitution in subsection 15 (l)(b) for subparagraph (i) of the following subparagraph: “(i) the amounts received by and accrued to the Fund, including the amounts of the unspent balances of moneys repaid to the Commission, if applicable, during that financial year;”. Amendment of section 9 of Act 103 of 1997

6. Section 9 of the Funding Act is hereby amended by the substitution in subsection (3) for paragraph (a) of the following paragraph: “(a) If Parliament and every provincial legislature are dissolved in terms of the Constitution [of the Republic of South Africa, 1996 (Act No. 108 of 1996)], every political party that is represented in any or all of those legislative bodies must close its books and records of account kept in terms of section 6 not later than 21 days before the date set for the election of those legislative bodies and within 14 days thereafter submit an audited statement in respect of those books and records of account to the Commission.”. Insertion of section 9A in Act 103 of 1997

7. The following section is hereby inserted in the Funding Act after section 9: 20 25 30 “Offences and penalties (a) contravenes or fails to comply with section 6A(4), (6) or (9)(b); or (b) fails to comply with a direction in terms of section 6A(9)(a), 35 Amendment of section 10 of Act 103 of 1997

8. 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 provincial legislature or the expiry of the period referred to in item 4( l)(a) or (b) of Schedule 6A to the Constitution; and”. 40

6 No.27989 GOVERNMENT GAZETTE, 3 1 AUGUST 2005 Act No. 15,2005 CONSTITUTIONAL MATERS AMENDMENT ACT, 2005 Amendment of Preamble of Act 103 of 1997

9. The Preamble of the Funding Act is hereby amended by the addition of the -. following DaramaDh: “ A 6 h I E R E A S it is necessary to provide for the re-allocation of moneys from the Represented Political Parties’ Fund and to regulate the repayment of 1 5 unspent balances of all moneys allocated to political parties participating in Parliament and provincial legislatures where a member of a legislature becomes a member of another party whilst retaining membership of that legislature or where an existing party merges with another party, subdivides another party;”. Substitution of long title of Act 103 of 1997

10. The following long title is hereby substituted for the long title of the Funding Act: “To establish the Represented Political Parties’ Fund with a view to making provision for the funding of political parties participating in Parliament and provincial legislatures; to provide for the management of that Fund by the Electoral Commission and for accountability regarding that Fund; to regulate the allocation of moneys from that Fund and the purposes for which allocated moneys may be used by political parties; 5 regulate the repayment to the Electoral Commission of the unspent balances of moneys by political parties under certain circumstances; and to provide for incidental matters.”. 15 20 Amendment of section 2 of Act 69 of 1998

11. 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 subsection: 25 “(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 [the particular] province must, despite subsection (l), become special delegates in the sequence from the lowest to the highest number of votes, including combined votes in the case of a merged party contemplated in section 61(2)(b) of the Constitution, that have been recorded for those parties during the last election of [the] provincial legislature [concerned], until four special delegates have been allocated to parties in the provincial delegation [concerned]. (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, [the] those special delegates [so determined] 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 Constitution, that have been recorded for the parties concerned during the last election of [the] @t provincial legislature [concerned], until six permanent delegates have been allocated to parties in the provincial delegation [concerned]. 30 35 40 to a delegate in the delegation of the province concerned and that- (i) came into existence on account of a change of party membership or subdivision of parties contemplated in section 61(2)(b) of the Constitu- tion; and (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 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- 50 55 (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 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 5

12. This Act is called the Constitutional Matters Amendment Act, 2005.