Ninth Amendment of the Constitution of South Africa

The Ninth Amendment of the Constitution of South Africa modified the scheme for the allocation of seats in the National Council of Provinces, to account for the possibility of changes in the party makeup of provincial legislatures. This was necessary because of other legislation which had been introduced to allow members of the provincial legislatures to cross the floor (move from one party to another) without losing their seats. It came into force on 20 June 2002, and was effectively repealed on 17 April 2009 by the Fourteenth Amendment.

Constitution Ninth Amendment Act of 2002
Parliament of South Africa
Enacted byParliament of South Africa
Enacted19 June 2002
Assented to19 June 2002
Commenced20 June 2002
Legislative history
BillConstitution of the Republic of South Africa Second Amendment Bill
Bill citationB17D—2002
Bill published on19 April 2002
Introduced byPenuel Maduna, Minister of Justice and Constitutional Development
Amends
Constitution of the Republic of South Africa, 1996
Amended by
Citation of Constitutional Laws Act, 2005 (amended short title)
Repealed by
Constitution Fourteenth Amendment Act of 2008 (effectively)

Provisions

The National Council of Provinces (NCOP) consists of ninety members, ten from each province. Seats in each province's delegation are allocated to parties in proportion to the seats held by the parties in the provincial legislature. Before the passage of the Ninth Amendment, seats in a provincial delegation were only re-allocated when a new provincial legislature was elected, and permanent delegates were appointed for a term that lasted until the next election of the provincial legislature.

The Loss or Retention of Membership of National and Provincial Legislatures Act, 2002, which was enacted at the same time as the Ninth Amendment, purported to allow members of the provincial legislatures to cross the floor at certain times without losing their seats. The Ninth Amendment consequently modified the constitution to provide that, if such floor-crossing occurs in a provincial legislature, then the seats in that province's NCOP delegation must be reallocated according to the new makeup of the legislature, and also that permanent delegates' terms of office expire when such a reallocation happens.

Legislative history

The amendment was introduced to Parliament as the Constitution of the Republic of South Africa Second Amendment Bill, part of a package of four bills dealing with floor-crossing. The others were the Constitution of the Republic of South Africa Amendment Bill, which became the Eighth Amendment, the Loss or Retention of Membership of National and Provincial Legislatures Bill, mentioned above, and the Local Government: Municipal Structures Amendment Bill, which dealt with consequential effects of floor-crossing in municipal councils.

The bill was initially passed by the National Assembly on 11 June 2002 with 280 votes in favour, more than the requisite two-thirds majority.[1] It was then passed with amendments by the NCOP on 18 June, with all nine provinces voting in favour.[2] The amendments were approved by the National Assembly on 19 June with 287 votes in favour,[3] and the bill was signed by President Thabo Mbeki on the same day. It came into force on the following day, at the same time as the other three floor-crossing acts.

On 4 October 2002, in the case of United Democratic Movement v President of the Republic of South Africa and Others, the Constitutional Court declared the Loss or Retention of Membership Act to be unconstitutional. This judgment had no effect on the Ninth Amendment, which remained in place notwithstanding that there could be no floor-crossing in the provincial legislatures. On 20 March 2003 the Tenth Amendment came into force, constitutionally enabling floor-crossing in national and provincial legislatures.

The changes made by the Ninth Amendment were repealed on 17 April 2009 by the Fourteenth Amendment.

Formal title

The official short title of the amendment is "Constitution Ninth Amendment Act of 2002". It was originally titled "Constitution of the Republic of South Africa Second Amendment Act, 2002" and numbered as Act No. 21 of 2002, but the Citation of Constitutional Laws Act, 2005 renamed it and abolished the practice of giving Act numbers to constitutional amendments.

References
  1. "Constitution of the Republic of South Africa Amendment Bill; Constitution of the Republic of South Africa Second Amendment Bill; Local Government: Municipal Structures Amendment Bill (Second Reading debate)". Parliamentary Debates (Hansard). Republic of South Africa: National Assembly. 11 June 2002. p. 134. Retrieved 16 May 2020.
  2. "Constitution of the Republic of South Africa Second Amendment Bill (Consideration of Bill and Report thereon.)". Parliamentary Debates (Hansard). Republic of South Africa: National Council of Provinces. 18 June 2002. pp. 93–96. Retrieved 16 May 2020.
  3. "Constitution of the Republic of South Africa Second Amendment Bill (Consideration of Bill, as amended by the National Council of Provinces, and of Report of Portfolio Committee on Justice and Constitutional Development thereon)". Parliamentary Debates (Hansard). Republic of South Africa: National Assembly. 19 June 2002. p. 15. Retrieved 16 May 2020.
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