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