Transcript Document

Filling vacancies
Prof. Jaap de Visser
Multi-level Government Initiative
Community Law Centre, UWC
This presentation
• Vacation of office
• Filling of vacancies
– on the district council
– on local / metropolitan council
• Dealing with complications
• NB! Not meant to replace IEC’s rules &
protocols
Changes in between elections
S 27 Structures Act: local/metro councillor vacates office
when he or she:
• Resigns from council
– ANC v MM George : resign with MM, MM must have read
the letter
• Is no longer qualified
• Removed from office by MEC ito Code of Conduct
PR councillor/Party-aligned ward cllr vacates office when• Ceases to be a member of the party
(Council cannot dismiss a councillor)
• District representative vacates office when– No longer member of local council
– When local council “replaces” him or her
PR vacancy
• Whenever a [PR] councillor ceases to hold
office, the municipal manager concerned must
within seven days after the councillor has
ceased to hold office, inform the chief
electoral officer accordingly (Item 18(1)(b) Sch
1 / Item 11(1)(b) Sch 2 Structures Act)
Ward vacancy
• A by-election must be held if a vacancy in a
ward occurs.
• The MM, after consulting the IEC must call
and set a date for the by-election, which must
be held within 90 days of the date on which
the vacancy occurred
S 25(1)(d) and (3)(d) Structures Act
Vacancy on district council
• Directly elected district councillors  normal
rules of filling PR vacancies apply
• District representative vacates office when– No longer member of local council
– When local council “replaces” him or her
Vacancy on district council
• Directly elected district councillors  normal
rules of filling PR vacancies apply
• District representative vacates office when– No longer member of local council
– When local council “replaces” him or her
Appointment of local representatives
to district
• IEC manages election of councillors from local to
district
• How does it work?
– Councillor or a party submits a list to IEC
– Councillors vote: each list receives percentage of
vote
– That percentage determines seat allocation 
Composition reflects composition of local council
Procedure to replace district rep: Sch 2
Municipal Structures Act
1. When MM becomes aware of vacancy  informs
IEC
2. IEC allows party (or councillor) to change party list
3. IEC declares elected into the vacancy the person
whose name is at the top of the applicable list.
NB council does not “replace” the district
representatives by resolution with
a new delegation
Procedure to fill PR vacancy on
local/metropolitan council: Sch 1 Structures Act
1. When MM becomes aware of vacancy 
informs IEC
2. IEC allows party to change party list
3. IEC declares elected into the vacancy the
person whose name is at the top of the
applicable party list.
Procedure to fill ward vacancy
• MM sets a date for by-election, after consulting IEC
– Within 90 days of vacancy arising
– MEC can do it if MM fails to set a date within 14 days
• All registered parties may contest
– Including newly formed party
• Determining when the vacancy occurred is
important
• Not always easy to determine - depend on
clarity in political party decision making
When does vacancy arise?
• Timing: moment of
1. termination of party membership?;
2. Party’s notification to MM?; or
3. MM’s notification to IEC?.
When does vacancy arise?
• Timing: moment of
1. termination of party membership;
When does vacancy arise?
• Party Constitution determines rules for resignation,
suspension, expulsion etc.
• Expulsion vs suspension
– Suspended from party ≠ suspended from Council
– Party cannot “suspend a cllr’s membership of the council”
(and demand Speaker/MM to refuse him/her access)
Possible complications
• Appeal within party?
– Appeal postpones decision, unless party
Constitution explicitly provides otherwise, e.g.:
– ANC Constitution: silent
– ID Constitution: appeal does not suspend
• Sometimes, the courts are involved - judicial
review
If the courts get involved
• Principles of administrative justice do apply, so a
court may examine:
– Fair hearing before decision?
– Decision ‘rational’?
• Usually, the court would be asked for an interim
order, prohibiting
– the party from proceeding with expulsion,
– the MM from declaring the vacancy and
– the IEC from filling the vacancy
Important
• Political party controls party list
• Council membership is controlled by:
– IEC (declares cllrs elected)
– MEC (suspend/dismiss councillor ito Code of Conduct)
• MM assists the IEC
• Political party does not control council
membership
• Political party cannot ‘suspend’ council
membership
Important
• MM must assess when a councillor ceases to
be a member of party
– Suspension ≠ expulsion
– Does internal appeal postpone the expulsion?
– Interim Court order?
– Etc.
• Consultation with relevant political party
• Close collaboration with IEC