Dr E Palmer / Adv F S Jenkins Parliamentary Legal Advisers
From: Legal Services Office
Date: 8 September 2003
Subject: Proposed amendment to the Electoral Laws Amendment Bill [B54-2003]
1. The above Bill was introduced in the National Assembly on 3 September 2003, and seeks amongst others, to add a new Schedule, which details the system of representation in the National Assembly and provincial legislatures.
2. There are different views as to whether items 18,19 and 21 of Schedule 2 to the interim Constitution, which deal with the review of lists of candidates, apply to lists referred to in item 5(2) of Schedule 6A to the Constitution (floor crossing lists). Our view is that they do not apply and there is a vacuum in the law in that if the Schedule 6A lists are completely depleted vacancies in the NA cannot be filled.
3. In our view there is no indication, either directly or by implication that these items apply to Schedule 6A lists. However, there is also a view that these items apply to Schedule 6A lists.
4. There is at least one party (Peace and Justice Congress) that has indicated that it intends challenging the applicability of these items in the High Court.
5. As the Schedule in the Bill will replace Schedule 2 to the interim Constitution, we are of the view that the Bill should unambiguously state that items 18, 19, 20 and 21 apply to lists referred to item 5(2) of Schedule 6A.
6. We suggest that a new item 22 be included in the Schedule to the Bill and that the numbering of existing item 22 and those following it be amended accordingly. It is suggested that the new item be worded as follows: "22. The provisions of items 18, 19, 20 and 21 apply1 with the necessary changes required by the context, to lists referred to in item 5(2) of Schedule 6A to the Constitution."