Moving parliament from Cape Town would not mean amending the constitution, but it would require a special legislative process, with a greater majority of MPs supporting the move than normal.
The fire at parliament has reignited the recurring debate about keeping parliament in Cape Town while the seat of the executive is in Pretoria.
The constitution says the seat of parliament is Cape Town, but this can be changed by legislation “enacted in accordance with section 76(1) and (5)”.
This means moving parliament would not require a constitutional amendment with a two-thirds majority vote, but the detail of section 76(1) and (5) means more is needed than a run-of-the-mill act of parliament.
First, moving the seat of parliament would require a section 76 bill, which affords the National Council of Provinces a larger say in the decision, said Mukesh Vassen, an advocate at the Cape Bar and former legal adviser to the speaker of the National Assembly.
With section 76 bills — those that affect provinces — if there is disagreement between the two houses of parliament, the constitution prescribes a mediation committee with an equal number of members from both houses to thrash things out.
If the mediation committee cannot agree within 30 days and the bill lapses, the National Assembly may only pass the bill again with a two-thirds majority.
That is what section 76(1) is all about. But subsection (1) is a general provision that applies to many proposed laws affecting provinces. More significantly, subsection (5) adds a special majority requirement uniquely applicable to changing the seat of parliament.
Normally, when the National Assembly passes a bill, a majority of members (201 MPs) must be in the house, and the bill is passed by a majority of those present. So, if 300 members turn up and vote, 151 will be a majority.
But a bill to change the seat must be passed by a majority of the members of the assembly. No matter how many votes are cast, there must be a minimum of 201 “ayes”, say the National Assembly rules.
An appendix to parliament’s rules gives a list of when the constitution requires special majorities. It includes amending the constitution, impeaching judges, declaring a state of emergency, appointing an inspector-general of intelligence and impeaching the public protector — all instances where the need to guard against the political agenda of an ordinary majority is obvious.
On this list, the seat of parliament being in Cape Town seems an anachronism.
But Valli Moosa, who headed the ANC’s team in negotiating the constitution and was later the minister of constitutional development & provincial affairs, explained the rationale.
He said the transition to democracy provided a “unique moment” to have the seats of the legislature, executive and highest court in one city. But, in all parties, there were supporters for and against. “Feelings were quite strong on either side,” he said.
When the interim constitution was being drafted, it was decided to leave it to the democratically elected constitutional assembly to finally decide, said Moosa.
In the end, it was a compromise: it would be mentioned in the constitution, but it would not be a constitutional provision requiring a two-thirds majority.
“You don’t want, after every election, a change in the seat of parliament. You don’t want to make it that easy,” said Moosa. “But you also don’t want to give it the status of a core element of the constitution; those elements that provide for and regulate the democratic order.”
Roelf Meyer, who was minister of constitutional development & provincial affairs in Nelson Mandela’s government of national unity, said Mandela was keen on moving parliament to Pretoria and established a small committee of ministers to look into potential sites, which Meyer chaired.
Meyer said two sites were identified in Pretoria. But the Cape Town lobby — which cut across political parties and included ANC ministers Dullah Omar and Trevor Manuel — pushed strongly to retain the seat in Cape Town.
“That is where the special provision comes from. It’s always been contentious, since 1909, [and] even Nelson Mandela decided to leave it alone.”
Manuel said it was not so much a Cape Town lobby that resulted in parliament remaining in Cape Town. A feasibility study suggested that the cost of moving it would be significant. But more than that, there were so many more important priorities at the time, such as the finalisation of the constitution and the Truth & Reconciliation Commission.
“I think the issue just got taken over by events,” he said, adding that Mandela did not want Capetonians to feel they were being punished for not voting for ANC in the 1994 elections.
The unusual trifurcation of SA’s capital, with the seats of the legislature, executive and the judiciary in different cities, was the result of a 1909 political compromise before the creation of the Union of SA
— THREE’S A CROWD
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