Address by Advocate Johnny de Lange, MP, Deputy Minister for Justice and Constitutional Development, on the Second Reading: Constitution Fourteenth Amendment Bill, Constitution Fifteenth Amendment Bill and General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Bill, in the National Assembly, Cape Town, Parliament
Honourable Ministers and Members
Comrades and friends
Ladies and gentlemen.
In his dissertation called "The mandate of political representatives with special reference to floor crossing: A legal historical study," Mr L K Joubert, opens his discussion of floor crossing with a quotation of the following remark made by Winston Churchill "Some men change their party for the sake of their principles, others change their principles for the sake of their party". I think that remark is very relevant to today's debate in the house.
Mr Joubert points out that elements of floor crossing have existed in South Africa since 1910. He corroborates that statement by referring to various incidents that occurred since 1910, for example
* The coalition between the National Party and the South African Party which led to the formation of the United Party in 1934.
* In 1954 six members of the United Party broke away to form the National Conservative Party.
* The establishment of the Democratic Party in 1989 by members of the Progressive Federal Party and the National Democratic Movement.
I mention this to illustrate that floor crossing is not a new phenomenon to our democracy but that it has existed for many decades in South Africa, although possibly with different features as the kind of floor crossing that we know at present.
The Interim Constitution, as amended by the Constitution, contained an anti defection clause that penalised a member of a legislature who left his or her political party in order to join another political party. Item 23A (One) of Schedule Two to the Interim Constitution provided that "[a] person loses membership of a legislature if that person ceases to be a member of the party which nominated that person as a member of the legislature." Provision was, however, made that item 23A may be amended by an Act of Parliament
* to provide for the manner in which it will be possible for a member of a legislature who ceases to be a member of the party which nominated that member, to retain membership of such legislature and
* to provide for any existing party to merge with another party or for any party to subdivide into more than one party.
The sanctioning of floor crossing is said to have had some major advantages in particular for the newly established democracy in South Africa. The prohibition of floor crossing not only implied that votes for a party were accurately translated into seats in a legislature, but also that parties had no chance to gain more seats except in the general elections. On the other hand, weaknesses of the prohibition were often mentioned.
In 2001, problems within the opposition alliance led to discussions about a change in the law and the regulation of floor crossing in South Africa. That situation led to Parliament passing four pieces of legislation in June 2002 that shared a common objective, namely
* to enable a member of a legislature or municipal council to become a member of another political party whilst retaining membership of that legislature or council and
* to enable an existing political party to merge with another political party, or to subdivide into more than one political party, or to subdivide and any one subdivision to merge with another political party.
The constitutional validity of those four acts was challenged in the case of United Democratic Movement (UDM) v President of the Republic of South Africa and Others 2003 (1) SA 495 (CC) (the UDM case). On 4 October 2002 the Constitutional Court held that "floor crossing" legislation for national, provincial and local government is not inconsistent with the Constitution.
The court, however, found the Loss or Retention of Membership of National and Provincial Legislatures Act, 2002 (the Membership Act), as a result of a procedural defect, to be inconsistent with the Constitution and invalid. The other three acts were, however, found to be consistent with the Constitution and valid.
Shortly after the Constitutional Court gave its judgment in the UDM case, a Constitution Amendment Bill was introduced into, and passed by, Parliament (the Constitution Tenth Amendment Act of 2003). The principal object of that Act was to re-enact the provisions of the Membership Act in a procedurally correct manner.
Institute for Democracy in South Africa (IDASA), in its submission to the Portfolio Committee on Justice and Constitutional Development, indicates, for example
* that in total 1417 public representatives (55 members of Parliament, 60 members of provincial legislatures and 1302 councillors) have crossed the floor in the five window periods for floor crossing since the inception of floor crossing in 2002,and
* that the cumulative number of votes cast in the 2004 elections on national level that have effectively been torn up through defection represent 8% of the 2004 electorate (that is 1 253 016 votes or every 12th person in line at polling stations in 2004.
Since the inception of floor crossing a general resistance has developed among political parties against floor crossing. Furthermore, floor crossing is strongly criticised in the media and by the public in general. I am convinced that members are acquainted with the main points of criticism against floor crossing. I would nevertheless like to highlight a few.
* The present legislation has conserved the disadvantages of the former system while abolishing the advantages for democratic consolidation in South Africa.
* The floor crossing system may disturb the accurate South African proportional representation system.
* While floor crossing is an internationally accepted political mechanism, it cannot be accommodated within South Africa's current political framework in which the public is represented through political parties as opposed to individuals.
* In South Africa there is a great disjuncture between what floor crossing sought to do and the reality of the political system.
* Floor crossing disenfranchises voters by effectively allowing politicians to "reallocate" votes as they see fit.
* Floor crossing lends itself to bribery and corruption.
* Floor crossing undermines the principle of participatory democracy envisioned by the Constitution.
* Floor crossing is bad for internal party politics and
* the system of floor crossing in South Africa runs contrary to the spirit of accountable, participatory and representative governance as articulated by the Constitution.
Government has noted this resistance and criticism. Consequently, the need has arisen to abolish floor crossing.
The main objects of the three bills before the house are to abolish floor crossing and to provide for related matters. The three Bills must therefore be read in conjunction with one another. The effect of abolishing floor crossing would mean that we revert to the position prior to 2002 when floor crossing was formally introduced into our law.
Constitution Fourteenth Amendment Bill
The Constitution Fourteenth Amendment Bill seeks to abolish floor crossing in the National Assembly and provincial legislatures by repealing Schedule 6A to the Constitution. It also seeks to effect consequential amendments to certain sections of the Constitution.
Although not related to floor crossing, it also seeks to amend Part B of Schedule three to the Constitution in order to further regulate the determination of political party participation in provincial delegations to the National Council of Provinces. This proposed amendment gives effect to a proposal that was made in this House on 23 August 2005 during the Second Reading debate on the Constitutional Matters Amendment Bill, 2005 [B 22B 2005].
Constitution Fifteenth Amendment Bill
The Constitution Fifteenth Amendment Bill seeks to abolish floor crossing in Municipal Councils by repealing Schedule 6B to the Constitution. It also seeks to effect consequential amendments to certain sections of the Constitution, and to provide for the filling of vacancies in a Municipal Council.
General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Bill
The General Laws Amendment Bill seeks to effect amendments, which are mainly of a consequential nature and which emanate from the provisions of the Constitution Fourteenth Amendment Bill and the Constitution Fifteenth Amendment Bill to several relevant Acts. It further seeks to effect amendments to the Public Funding of Represented Political Parties Act of 1997?
* to make it clear that all political parties are accountable to the Electoral Commission in respect of the moneys allocated to them from the Represented Political Parties Fund, and
* to empower the Electoral Commission to appoint an auditor under certain circumstances to, for example, audit the books and records of account kept by a political party. This proposed amendment seeks to address one of the matters raised by the Portfolio Committee on Justice and Constitutional Development in its report on the Constitutional Matters Amendment Bill [B 22B 2005], dated 19 August 2005.
Once the three bills have been passed by Parliament and implemented, it would mean that
* A member of the National Assembly, a provincial legislature or a municipal council will no longer be able to become a member of another political party whilst retaining membership of the national assembly, that provincial legislature or that council, and
* an existing political party will no longer be able to merge with another political party, or to subdivide into more than one political party, or to subdivide and any one subdivision to merge with another political party, whilst allowing a member of the national assembly, a provincial legislature or a council affected by such changes to retain membership of the national assembly, that provincial legislature or that council.
As the next window period for floor crossing on local government level is in September 2009, the Constitution Fourteenth Amendment Bill, the Constitution Fifteenth Amendment Bill, and the General Laws Amendment Bill have to be passed by Parliament and implemented before 1 September 2009.
I would like to thank the chairperson and members of the Justice Portfolio Committee for the time and effort that they have put into finalising the three Bills. I have noted the content of the report that the committee has adopted in respect of the General Laws Amendment Bill and, in particular, the committee's recommendation in respect of the funding of political parties. I will without any delay request my department to attend to that matter.
I have been informed that the three bills received the unanimous support of all the political parties that were present when the Justice Portfolio Committee voted on the Bills. I trust that all the parties present in the house today will also support the passing of the bills.
I recommend the passing of the
* Constitution Fourteenth Amendment Bill
* Constitution Fifteenth Amendment Bill and
* General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Bill, to the House.
I thank you.
Issued by: Department of Justice and Constitutional Development
20 August 2008