Constitution of the Republic of South Africa, 1993/Schedule 2

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Constitution of the Republic of South Africa, 1993
drafted by the Multiparty Negotiating Forum and enacted by the Parliament of South Africa
Schedule 2: System for Election of National Assembly and Provincial Legislatures

Schedule 2

System for Election of National Assembly and Provincial Legislatures


Election of National Assembly

1. Parties registered in terms of the Electoral Act, 1993, and contesting an election of the National Assembly, shall nominate candidates for such election on lists of candidates prepared in accordance with this Schedule and the Electoral Act, 1993.

2. The 400 seats in the National Assembly referred to in section 40(1), shall be filled as follows:

(a) 200 seats from regional lists submitted by the respective parties, with a fixed number of seats reserved for each region as determined by the Commission for a particular election, taking into account available scientifically based data in respect of voters, representations by interested parties and the following proposed determination in respect of the various regions:

Western Cape —21 seats
Eastern Cape —26 seats
Northern Cape —4 seats
Natal —40 seats
Orange Free State —15 seats
North-West —17 seats
Northern Transvaal —20 seats
Eastern Transvaal —14 seats
Pretoria-Witwatersrand-Vereeniging —43 seats ; and

(b) 200 seats from national lists submitted by the respective parties, or from regional lists where national lists were not submitted.

3. The lists of candidates submitted by a party, shall in total contain the names of not more than 400 candidates, and each such list shall denote such names in such fixed order of preference as the party may determine.

4. A party’s lists of candidates shall consist of—

(a) both a national list and a list for each region; or

(b) a list for each region,

with such number of names on each list as the party may determine subject to item 3.

5. The 200 seats referred to in item 2(a) shall be allocated per region to the parties contesting an election, as follows:

(a) A quota of votes per seat shall be determined in respect of each region by dividing the total number of votes cast in a region by the number of seats, plus one, reserved for such region under item 2(a).

(b) The result plus one, disregarding fractions, shall be the quota of votes per seat in respect of a particular region.

(c) The number of seats to be awarded for the purposes of paragraph (e) in respect of such region to a party, shall, subject to paragraph (d), be determined by dividing the total number of votes cast in favour of such party in a region by the quota of votes per seat indicated by paragraph (b) for that region.

(d) Where the result of the calculation referred to in paragraph (c) yields a surplus not absorbed by the number of seats awarded to a party concerned, such surplus shall compete with other similar surpluses accruing to any other party or parties in respect of the relevant region, and any seat or seats in respect of that region not awarded in terms of paragraph (c), shall be awarded to the party or parties concerned in sequence of the highest surplus.

(e) The aggregate of a party’s awards in terms of paragraphs (c) and (d) in respect of a particular region shall indicate that party’s provisional allocation of the seats reserved under item 2(a) for that region.

(f) The aggregate of a party’s provisional allocations for the various regions in terms of paragraph (e), shall indicate its provisional allocation of the seats referred to in item 2(a).

(g) If no recalculation of provisional allocations is required in terms of item 7 in respect of the seats referred to in item 2(a), the provisional allocation of such seats in terms of paragraphs (e) and (f) shall become the final allocation of such seats to the various parties, and if such a recalculation is required the provisional allocation of such seats, as adjusted in terms of item 7, shall become the final allocation of such seats to the various parties.

6. The 200 seats referred to in item 2(b) shall be allocated to parties contesting an election, as follows:

(a) A quota of votes per seat shall be determined by dividing the total number of votes cast nationally by 401, and the result plus one, disregarding fractions, shall be the quota of votes per seat.

(b) The number of seats to be awarded to a party for the purposes of paragraph (d) shall, subject to paragraph (c), be determined by dividing the total number of votes cast nationally in favour of such party by the quota of votes per seat determined in terms of paragraph (a).

(c) Where the result of the calculation in terms of paragraph (b) yields a surplus not absorbed by the number of seats awarded to a party concerned, such surplus shall compete with other similar surpluses accruing to any other party or parties, and any seat or seats not awarded in terms of paragraph (b), shall be awarded to the party or parties concerned in sequence of the highest surplus, up to a maximum of five seats so awarded: Provided that subsequent awards of seats still remaining unawarded shall be made in sequence to those parties having the highest average number of votes per seat already awarded in terms of paragraph (b) and this paragraph.

(d) The aggregate of a party’s awards in terms of paragraphs (b) and (c) shall be reduced by the number of seats provisionally allocated to it in terms of item 5(f) and the result shall indicate that party’s provisional allocation of the seats referred to in item 2(b).

(e) If no recalculation of provisional allocations is required in terms of item 7 in respect of the seats referred to in item 2(b), the provisional allocation of such seats in terms of paragraph (d) shall become the final allocation of such seats to the various parties, and if such a recalculation is required, the provisional allocation of such seats, as adjusted in terms of item 7, shall become the final allocation of such seats to the various parties.

7.

(1) If a party has submitted a national or a regional list containing fewer names than the number of its provisional allocation of seats which would have been filled from such list in terms of item 8 or 9 had such provisional allocation been the final allocation, it shall forfeit a number of seats equal to the deficit.

(2) In the event of any forfeiture of seats in terms of subitem (1) affecting the provisional allocation of seats in respect of any particular region in terms of item 5(e), such allocation shall be recalculated as follows:

(a) The party forfeiting seats shall be disregarded in such recalculation, and its provisional allocation of seats in terms of item 5(e) for the region in question, minus the number of seats forfeited by it in respect of its list for such region, shall become its final allocation in respect of the seats reserved for such region in terms of item 2(a).

(b) An amended quota of votes per seat shall be determined in respect of such region by dividing the total number of votes cast in the region, minus the number of votes cast in such region in favour of the party referred to in paragraph (a), by the number of seats, plus one, reserved for such region under item 2(a), minus the number of seats finally allocated to the said party in terms of paragraph (a).

(c) The result plus one, disregarding fractions, shall be the amended quota of votes per seat in respect of such region for purposes of the said recalculation.

(d) The number of seats to be awarded for the purposes of paragraph (f) in respect of such region to a party participating in the recalculation, shall, subject to paragraph (e), be determined by dividing the total number of votes cast in favour of such party in such region by the amended quota of votes per seat indicated by paragraph (c) for such region.

(e) Where the result of the recalculation in terms of paragraph (d) yields a surplus not absorbed by the number of seats awarded to a party concerned, such surplus shall compete with other similar surpluses accruing to any other party or parties participating in the recalculation in respect of the said region, and any seat or seats in respect of such region not awarded in terms of paragraph (d), shall be awarded to the party or parties concerned in sequence of the highest surplus.

(f) The aggregate of a party’s awards in terms of paragraphs (d) and (e) in respect of such region shall, subject to subitem (4), indicate that party’s final allocation of the seats reserved under item 2(a) for that region.

(3) In the event of any forfeiture of seats in terms of subitem (1) affecting the provisional allocation of seats in terms of item 6(d), such allocation shall be recalculated as follows:

(a) The party forfeiting seats shall be disregarded in such recalculation, and its provisional allocation of seats in terms of item 6(d), minus the number of such seats forfeited by it, shall become its final allocation of the seats referred to in item 2(b).

(b) An amended quota of votes per seat shall be determined by dividing the total number of votes cast nationally, minus the number of votes cast nationally in favour of the party referred to in paragraph (a), by 401, minus the number of seats finally allocated to the said party in terms of paragraph (a).

(c) The result plus one, disregarding fractions, shall be the amended quota of votes per seat for the purposes of the said recalculation.

(d) The number of seats to be awarded for the purposes of paragraph (f) to a party participating in the recalculation shall, subject to paragraph (e), be determined by dividing the total number of votes cast nationally in favour of such party by the amended quota of votes per seat indicated by paragraph (c).

(e) Where the result of the recalculation in terms of paragraph (d) yields a surplus not absorbed by the number of seats awarded to a party concerned, such surplus shall compete with other similar surpluses accruing to any other party or parties participating in the recalculation, and any seat or seats not awarded in terms of paragraph (d), shall be awarded to the party or parties concerned in sequence of the highest surplus, up to a maximum of five seats so awarded: Provided that subsequent awards of seats still remaining unawarded shall be made in sequence to those parties having the highest average number of votes per seat already awarded in terms of paragraph (d) and this paragraph.

(f) The aggregate of such a party’s awards in terms of paragraphs (d) and (e) shall be reduced by the number of seats finally allocated to it in terms of item 5(g), and the result shall, subject to subitem (4), indicate that party’s final allocation of the seats referred to in item 2(b).

(4) In the event of a party being allocated an additional number of seats in terms of this item, and its list in question then does not contain the names of a sufficient number of candidates as set out in subitem (1), the procedure provided for in this item shall mutatis mutandis be repeated until all seats have been allocated.

8.

(1) Where a party submitted both a national list and regional lists, the seats finally allocated to it—

(a) in terms of item 5(g), shall be filled from its regional lists in accordance with its final allocation of seats in respect of the various regions; and

(b) in terms of item 6(e), shall be filled from its national list in accordance with its final allocation of seats in terms of that item.

(2) A seat finally allocated to a party in respect of a region, shall, for the purposes of subitem (1)(a), be filled only from such party’s list for that particular region.

9.

(1) Where a party submitted regional lists only, the seats finally allocated to it—

(a) in terms of item 5(g), shall be filled from such lists in accordance with its final allocation of seats in respect of the various regions; and

(b) in terms of item 6(e), shall be filled from the said lists in the same proportions as the proportions in which the seats referred to in paragraph (a) are to be filled in respect of the various regions for which the party was finally allocated seats in terms of item 5(g): Provided that if a party was not allocated any seats in terms of item 5(g) , the seats allocated to it in terms of item 6(e) shall be filled from its regional lists in proportion to the number of votes received by that party in each of the regions: Provided further that surplus fractions shall be disregarded save that any remaining seats shall be awarded to regions in sequence of the highest surplus fractions.

(2) A seat finally allocated to a party in respect of a region, shall, for the purposes of subitem (1)(a), be filled only from such party’s list for that particular region.


Election of provincial legislatures

10. The Commission shall determine the number of seats in each provincial legislature, taking into account available scientifically based data in respect of voters, representations by interested parties and the following proposed determination:

Western Cape —42 seats
Eastern Cape —52 seats
Northern Cape —30 seats
Natal —80 seats
Orange Free State —30 seats
North-West —34 seats
Northern Transvaal —40 seats
Eastern Transvaal —30 seats
Pretoria-Witwatersrand-Vereeniging —86 seats:

Provided that the Commission may for the purposes of any provincial election after the first election under this Constitution vary any determination under this item.

11. Parties registered in terms of the Electoral Act, 1993, and contesting an election of a provincial legislature, shall nominate candidates for election to such provincial legislature on provincial lists prepared in accordance with this Schedule and the Electoral Act, 1993.

12. Each party shall be entitled to submit only one list per province, which shall contain the names of not more than the number of seats determined under item 10 for the relevant provincial legislature and in such fixed order of preference as the party may determine.

13. The seats determined for a provincial legislature shall be allocated to parties contesting an election, as follows—

(a) A quota of votes per seat shall be determined by dividing the total number of votes cast in the province concerned by the number of seats, plus one, determined under item 10 for such province and the result plus one, disregarding fractions, shall be the quota of votes per seat for such province.

(b) The number of seats to be awarded to a party for the purposes of paragraph (d) shall, subject to paragraph (c), be determined by dividing the total number of votes cast in the province in favour of such party by the quota of votes per seat determined in terms of paragraph (a).

(c) Where the result of the calculation in terms of paragraph (b) yields a surplus not absorbed by the number of seats awarded to a party concerned, such surplus shall compete with other similar surpluses accruing to any other party or parties in respect of the province concerned, and any seat or seats not awarded in terms of paragraph (b), shall be awarded to the party or parties concerned in sequence of the highest surplus.

(d) The aggregate of a party’s awards in terms of paragraphs (b) and (c), shall indicate that party’s provisional allocation of seats in the provincial legislature in question.

(e) If no recalculation of provisional allocations for a province concerned is required in terms of item 14, the provisional allocation of seats in respect of that province in terms of paragraph (d), shall become the final allocation of such seats to the various parties, and if such a recalculation is required the provisional allocation of such seats as adjusted in terms of item 14 shall become the final allocation of such seats to the various parties.

14.

(1) If a party has submitted a provincial list containing fewer names than the number of seats provisionally allocated to it in terms of item 13(d), it shall forfeit a number of seats equal to the deficit.

(2) In the event of any forfeiture of seats in terms of subitem (1), the allocation of seats in respect of the province concerned shall be recalculated as follows:

(a) The party forfeiting seats shall be disregarded in such recalculation, and its provisional allocation of seats in terms of item 13(d), minus the number of seats forfeited by it in respect of its list for such province, shall become its final allocation of seats in the provincial legislature concerned.

(b) An amended quota of votes per seat shall be determined in respect of such province by dividing the total number of votes cast in the province, minus the number of votes cast in the province in favour of the party referred to in paragraph (a), by the number of seats, plus one, determined in terms of item 10 in respect of the province concerned, minus the number of seats finally allocated to the said party in terms of paragraph (a).

(c) The result plus one, disregarding fractions, shall be the amended quota of votes per seat in respect of such province for purposes of the said recalculation.

(d) The number of seats to be awarded for the purposes of paragraph (f) in respect of such province to a party participating in the recalculation, shall, subject to paragraph (e), be determined by dividing the total number of votes cast in favour of such party in such province by the amended quota of votes per seat indicated by paragraph (c) for such province.

(e) Where the result of the recalculation in terms of paragraph (d) yields a surplus not absorbed by the number of seats awarded to a party concerned, such surplus shall compete with other similar surpluses accruing to any other party or parties participating in the recalculation, and any seat or seats in respect of such province not awarded in terms of paragraph (d), shall be awarded to the party or parties concerned in sequence of the highest surplus.

(f) The aggregate of such a party’s awards in terms of paragraphs (d) and (e) in respect of such province shall, subject to subitem (3), indicate that party’s final allocation of the seats determined under item 10 in respect of that province.

(3) In the event of a party being allocated an additional number of seats in terms of this item, and its list in question then does not contain the names of a sufficient number of candidates as set out in subitem (1), the process provided for in this item shall mutatis mutandis be repeated until all seats have been allocated.


Declaration of support by one party of another party

15.

(1) A party intending to contest the election of one or more or all the provincial legislatures, but not the election of the National Assembly, may, within the time and in the manner prescribed by or under the Electoral Act, 1993, declare that it supports another party which is contesting the election of the National Assembly, and if it so declares, all votes cast in its favour shall, for the purpose of the election of the National Assembly, be deemed to be votes cast in favour of such other party.

(2) A party intending to contest the election of the National Assembly, but not the election of one or more or any of the provincial legislatures, may, within the time and in the manner prescribed by or under the Electoral Act, 1993, declare that it supports another party which is contesting the election of a provincial legislature which the first-mentioned party is not contesting, and if it so declares, all votes cast in its favour shall, for the purpose of the election of that particular provincial legislature or legislatures, be deemed to be votes cast in favour of such other party.

(3) A party intending to contest the election of one or more provincial legislatures, but not the election of all the provincial legislatures, may, within the time and in the manner prescribed by or under the Electoral Act, 1993, declare that it supports another party which is contesting the election of a provincial legislature or legislatures which the first-mentioned party is not contesting, and if it so declares, all votes cast in its favour shall, for the purpose of the election of the last-mentioned provincial legislature or legislatures, be deemed to be votes cast in favour of such other party.

(4) For the purposes of subitems (2) and (3), a party may support different parties in the different provincial legislatures.

(5) This item shall apply only to an election of the National Assembly which is held simultaneously with the election of the provincial legislatures.


Designation of representatives

16.

(1) After the counting of votes has been concluded, the number of representatives of each party has been determined and the election has been certified by the Commission as having been free and fair or a declaration has been made by the Commission under section 250(1)(a), the Commission shall, within two days after such certification or declaration, designate from each list of candidates published in terms of section 23 of the Electoral Act, 1993, the representatives of each party in each legislature.

(2) Following the designation in terms of subitem (1), if a candidate’s name appears on more than one list for the National Assembly or on lists of both the National Assembly and a provincial legislature and such candidate is due for designation as a representative in more than one case, the party which submitted such lists shall, within two days after the said certification or declaration, indicate to the Commission from which list such candidate will be designated or in which legislature the candidate shall serve, as the case may be, in which event the candidate’s name shall be deleted from the other lists.

(3) The Commission shall forthwith publish the list of names of representatives in all legislatures.


Supplementation of lists of candidates

17. No lists of candidates of a party for any legislature shall be supplemented prior to the designation of representatives in terms of item 16, save where provided for by an Act of Parliament.

18. Lists of candidates may, after the designation of representatives in terms of item 16 has been concluded, be supplemented by the addition of an equal number of names at the end of the applicable list, if—

(a) a representative is elected as the President or to any other executive office as a result of which he or she resigns as a representative of a legislature;

(b) a representative is elected as a member of the Senate;

(c) a name is deleted from a list in terms of item 16(2); or

(d) a vacancy has occurred and the appropriate list of candidates of the party concerned is depleted.

19. Lists of candidates of a party published in terms of section 23 of the Electoral Act, 1993, may be supplemented on one occasion only at any time during the first 12 months following the date on which the designation of representatives in terms of item 16 has been concluded, in order to fill casual vacancies: Provided that any such supplementation shall be made at the end of the list.

20. The number of names on lists of candidates as supplemented in terms of item 18 shall not exceed the difference between the number of seats in the National Assembly or a provincial legislature, as the case may be, and the number of representatives of a party in any such legislature.

Review of lists of candidates by a party

21. A party may review its undepleted lists as supplemented in terms of items 18, 19 and 20, within seven days after the expiry of the period referred to in item 19, and annually thereafter, until the date on which a party has to submit lists of candidates for an ensuing election, in the following manner:

(a) all vacancies may be supplemented;

(b) no more than 25 per cent of candidates may be replaced; and

(c) the fixed order of lists may be changed.


Publication of supplemented and reviewed lists of candidates

22. Candidates’ lists supplemented in terms of items 18 and 19 or reviewed in terms of item 21 shall be published by the Secretary to Parliament and the Secretaries of the provincial legislatures within 10 days after the receipt of such lists from the parties concerned.


Vacancies

23.

(1) In the event of a vacancy occurring in the representation of a party in any legislature, such vacancy shall forthwith be filled in accordance with section 44 or 133.

(2) If a party represented in a legislature dissolves or ceases to exist and the members in question vacate their seats in consequence of section 43(b) or 133(1)(b), the seats in question shall be allocated to the remaining parties mutatis mutandis as if such seats were forfeited seats in terms of item 7 or 14, as the case may be.


Alteration of numbers and boundaries of provinces

24. If the numbers or boundaries of provinces are altered pursuant to section 124, the Commission shall review the determinations made in terms of items 2 and 10, and such revised determinations shall then be the basis of any elections for the National Assembly or the provincial legislatures held after any such alteration.


Definitions

25. In this Schedule—

“Commission” means the Independent Electoral Commission, established by the Independent Electoral Commission Act, 1993 (Act No. 150 of 1993), or, in relation to any election held after the first election under this Constitution, that Commission or any other body established or designated by an Act of Parliament;

“national list” means a list of candidates prepared by a party for an election of the National Assembly to reflect that party’s order of preference of candidates in respect of the allocation of seats on a national basis;

“provincial list” means a list of candidates prepared by a party for an election of a provincial legislature;

“region” means the territorial area of a province;

“regional list” means a list of candidates in respect of a region prepared by a party for an election of the National Assembly to reflect that party’s order of preference of candidates in respect of the allocation of seats in respect of such region.


Application of Schedule with reference to section 124

26. The provisions of this Schedule shall be subject to any regulations made or directions given by the Commission in terms of section 124(7) in so far as affected areas within the meaning of that section are concerned.