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PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
22 August 2007
VAN DER MERWE'S CONSTITUTION FIFTEENTH AMENDMENT BILL (FLOOR CROSSING): FURTHER DISCUSSION
Chairperson: Ms P Mentor (ANC)
Documents handed out:
Constitution 15th Amendment Bill, 2006(Mr JH van der Merwe)
Constitution 16th Amendment Bill (Mr S N Swarts)
Electoral Act Amendment Bill (Mr. G Morgan)
South African Schools Act Amendment Bill (Mr G G Boinamo)
Labour Relations Act Amendment Bill (Mr C M Lowe)
Fund for Victims of Violent Crime Bill(Dr K Banard)
Lotteries Act Amendment Bill (Mr L B Labuschagne)
Constitution Seventeenth Amendment Bill (Ms C Dudley)
Transnet Pension Fund Act Amendment Bill (Ms K J Minnie)
Audio recording of meeting
Mr van der Merwe's Constitution Fifteenth Amendment Bill, calling for the abolition of floor crossing, had been held in abeyance until after the ANC Policy Conference, which was to discuss the entire principle of floor crossing. The Chairperson reported that concerns were expressed at that conference that floor crossing unintentionally undermined democracy; that incentives, financial and otherwise, could be an attracting factor, that issues of "morality" were raised, and the issue of threshold would also need to be looked into. It was stressed and agreed that floor crossing of itself was not undemocratic. It was agreed that the Committee would need to look into the law and regulations for floor crossing to address the concerns that were raised by Members and by the general electorate. The Committee agreed that this should not be done in haste. The current period for floor crossing in 2007 was already here, and the recommendations the Committee would make to Parliament would probably significantly affect floor crossing only in the forthcoming year. The problems had been voiced and were under consideration.
Members discussed in detail the way forward. It was noted that the matter would shortly be discussed at a workshop. Some discussion was held whether Mr van der Merwe should be asked at this stage if he would be prepared to accept and redraft a compromise, but it was agreed that this was premature. It was however agreed that the Chairperson would write to him to keep him advised of progress.
Adv P Swart (DA) offered Members' condolences to the Chairperson , who had suffered a double family bereavement in the last week.
The Chairperson strongly urged members to be present on the following Friday. The Department had been called at a cost, and would be attending. It was vital to have a quorum, and she would like a co-Chair appointed from an opposition party.
Van der Merwe's Constitution Fifteenth Amendment Bill (Floor Crossing)
The Chairperson recapped that the consideration of this matter had been held in abeyance pending the ANC's Policy Conference. The membership mostly also shared the concerns that this Committee had expressed on floor crossing. She reminded the Members of matters that were endorsed at that conference:
Matters discussed included the issue on how floor crossing unintentionally undermined parliamentary democracy. Political parties would stand for election, that would result in seats being held by a number of parties. Floor crossing, which was not necessarily undemocratic, would then result in members of parties being multiplied, through a process other than the ballot box.
The Policy Conference also espoused the issue of the incentives for floor crossing, either incentives as to status within a party, or getting financial and other fringe benefits. These incentives were actually making floor crossing very appealing and very easy.
Another concern shared by many South Africans, and raised at the Policy Conference, was that the ruling party itself said that it needed to grow its strength through the ballot box. Finally the issue of threshold needed to be addressed.
The Chairperson continued that this Committee, on behalf of Parliament, must look into these issues. She noted however that this investigation could not be concluded at one meeting, and it should not be done in haste. The floor crossing period was already upon Parliament, and so the recommendations this Committee would make would probably significantly affect floor crossing in the forthcoming year, but not this one. The Committee could not influence national and provincial floor crossing at this stage. The proposer should feel satisfied that already there was a declaration of intent to investigate the matter and the concerns, and acknowledgment of the problems.
The Chairperson stressed again that floor crossing was not necessarily undemocratic; it was founded in the Constitution and in the law. The Committee would have to have regard to the law and regulations for floor crossing when addressing the concerns that were raised.
The Chairperson said she appreciated the spirit of the committee as to how this and many other issues had been handled in a non party-political way and thanked the Committee for understanding and accepting the need to put the matter in abeyance for a while, particularly those from opposition parties.
Mr H Bekker (IFP) noted that the sponsor, Mr van der Merwe, although he was a member of the IFP, had submitted the proposal in his individual capacity. He thanked the Chairperson for the openness with which the matter had been discussed, and commended the Committee on its approach to problematic and urgent aspects. He thanked her for her feedback from the ANC Policy Conference. He said that he and the IFP would like to see the complete scrapping of this legislation. However, they did also realise that this was a collective-bargaining type of situation, and could therefore be amenable towards the suggested way forward. The Committee would have to go back to the proposer.
Mr Bekker agreed that the Chairperson had presented the significant problems. However, he would like to have three aspects highlighted, which he and the ANC Policy Conference seemed to agree were the most pressing issues:
1) The position of existing party representation, and the fact that any individual could form his own little party and become "boss of his own domain"; also carrying the financial aspects;
2) The burning aspect of financial rewards and financial enticements;
3) The threshold.
Enumerating on the first aspect, he believed that if this legislation were to remain on the statute book, then there should be a proviso that a person could only floor-cross to join an existing party that was registered at the time that the elections had taken place, and could not floor cross to form another independent little party.
The financial rewards had two aspects. He agreed that a person could not now claim financial benefits from becoming his own party leader. However, if a Member moved from one party to another, he would in terms of the initial election results have been a member of Party X, that would then have received monthly emoluments from Parliament for the Member. If the Member moved from Party X to Party Y then those emoluments would travel with him, and this in itself could be an enticement for Party Y to invite or accept him. Mr Bekker suggested that there should be a proviso that in a case of floor crossing the emoluments should not follow the floor crosser.
Mr Bekker suggested that the third aspect of threshold must be done away with entirely because smaller parties would be jeopardised whereas larger parties would benefit.
Mr Bekker agreed that discussion in relation to the forthcoming period this year was theoretical, but would still be applicable to and important for local government at a later stage.
Adv Swart felt it was appropriate that the issue be dealt with in this meeting, and not after the middle of September, so that a view could be expressed that was not coloured by gains and losses. It was very clear that since the inception of this piece of legislation, the electorate had not been happy with it. He agreed that the principle itself was not undemocratic. However, this young democracy lacked the maturity to exercise the privilege in a responsible way, taking into account all matters of good democracy. The committee had a duty to give voice to the wishes of the electorate. Therefore, faced with the proposal by a Member of Parliament, the Committee would need to decide whether to support the sending of this proposed amendment to a Portfolio Committee. He was concerned that this piece of legislation dealt with the total scrapping of the whole principle. He wondered if the proposed legislation should not simply be referred to the Portfolio Committee, who could of course amend it. He stressed again that the electorate did not want floor crossing, and Members must be the voices of the electorate.
Mr S Mshudulu (ANC) thought the issue of the Constitutional memory should apply to this Committee. When proposals were referred to it, the Committee would engage with openness, but whether they were expressing their views as individuals, they must refer to the policies of their parties whom they represented. This was an issue that all South Africans were discussing. Perhaps it was merely a particular style of communication adopted at the time that had failed to inform the public properly as to why the floor crossing legislation was passed. It was important that they should understand it was intended for a particular situation at a particular time. It was a necessary route at the time when the Democratic Party could not change its name without losing its membership. The new proposal now tabled was part of the participatory process, and the Members, who were part of the diverse South African society, had a responsibility to give directions. ,
Mr Mshudulu stressed that recommendations could not be implemented until endorsed by the ANC. The points highlighted were issues that ordinary members of the public could also raise. Other issues might involved whether a person had a moral obligation to stand by the party for whom he was elected, and matters of democratic principles. Whatever were the individual views, there was clearly agreement that there was a need to look deeper into the whole matter. He would like the media present to explain to the people the steps taken so far, so that there was no misrepresentation of what had been done.
Mr A Ainslie (ANC) felt the concerns about the floor crossing legislation summarised the feelings of all parties on this Committee and in Parliament generally. He agreed that a full analysis and full investigation into the points raised was necessary. The Committee must fully understand all issues. It was dealing with a vital piece of legislation affecting all three levels of government. Whether or not there would eventually be a need for constitutional amendment or a major policy shift, there was a need to plot some kind of framework and process it forward. This might involve public hearings. It would certainly involve consolidation of reports received and more research. He would very much like to see research on the allegations that the public generally did not favour floor crossing, because he felt that some parties in fact were consistently voicing support for it. He suggested that the Committee plot a process over the next few months, so it could give Parliament recommendations by the end of the year. The Bill was only one aspect of a much wider investigation.
The Chairperson thanked the IFP for their very consistent approach, and was pleased to hear about the possibility of a compromise, which was a good indicator of the growth of democracy. From inception IFP had said it was opposed to floor crossing, but today she commended it for accepting the possibility of compromise if there was room for it, although she noted that their first preference would still be a scrapping of the legislation.
The Chairperson noted that being a public representative was onerous and carried great responsibility. The electorate had a right to express what they hated or liked. Members must listen to and accept those concerns, and make suggestions as to how they could be addressed.
Because the Committee could not hold public hearings, the Chairperson had put out a call on radio that comments by the public be sent to the Committee. All the letters and e-mails expressed absolute displeasure for floor crossing and a passionate plea that it be looked into. The representatives of the ANC felt floor crossing was "immoral". The committee had a responsibility to listen and to create a responsible solution to take democracy forward. However deep the opposition to floor crossing, this must be weighed against strengthening democracy, and it was possible that the legitimate concerns could be addressed other than by total abolition of the legislation. As public representatives, Members had the responsibility to look into the future as well.
The Chairperson commented that Mr Mshudulu's point on the media was quite correct. She had regrettably had to decline invitations to speak on floor crossing because of her bereavement. Although other countries might express interest, the work was done in the interests of South Africans, and democracy could not be undermined either in the short or long term. She agreed that in dealing with the matter, Members must leave no stone unturned, and consider every political interest. She would prefer not to simply refer the matter to another Committee. Mr van der Merwe, who proposed the legislation, should be accorded respect and honour. She felt very passionately that this Committee should take the matter through itself. She would even think that any legislation should continue to bear the name of its proposer.
The Chairperson added that she was trying to arrange a meeting with Mr Doidge, Chairperson of the House, and suggested that this Committee try to arrange a workshop for next Monday.
Adv Swart agreed, and asked how far this Committee could go as the workshop would be vital. He referred to the Chairperson's remarks that the Committee had adopted a non party-political approach, which was interesting as this was probably one of the most politically-charged pieces of legislation.
Mr Ainslie mentioned that Monday was a difficult day as it was often booked up for work in regions or conferences.
The Chairperson responded that Monday was the only day that did not clash with the many other things in Parliament.
Ms I Mars (IFP) supported the Chairperson, commenting that the smaller parties were fully committed from Tuesdays to Fridays.
Mr Mshudulu added that the schedule for this and other Committees was tight.
The Chairperson summed up the approach the Committee would adopt. Firstly, it was accepted that floor crossing was not undemocratic. Secondly, the workshop that would be held would result in a preliminary report, both to the proposer and the Presiding Officer. The Committee would agree on the issues. It was clear that it agreed that deeper research was needed, including deeper consultation with the electorate. This Committee should be capacitated to do this. The Committee would look into how best to strengthen multi-party democracy, the financial considerations, and the threshold, as also how best to engage with the electorate.
The Chairperson indicate that she would circulate her letter to the Speaker to Members. Mr van der Merwe, the proposer, should be called to the Committee to be informed of the route adopted, so that he is kept informed and is aware that at this stage the Committee had neither given an outright refusal or acceptance.
Mr Mshudulu felt the committee should decide whether the proposal was desirable and substantiate with reasons.
The Chairperson asked for guidance from Members. The proposer had proposed that the legislation be abolished. Now the Committee would be asking whether he would agree to a compromise. She asked if the Committee should ask him to redraft the proposal.
Mr Gerber suggested that the Committee should in the workshop formulate how the Committee worked and developed. Members of Parliament were often not experts on the legislation they wanted to change. He believed that the Committee should adopt some mechanism that would allow proposers to re-draft if the Committee was not happy with the form in which a proposal was set out. Rejecting the legislation out of hand would undermine the spirit of the committee.
Mr Bekker answered Mr Mshudulu by saying that it would be difficult to assess whether the legislation was desirable or not. He believed that discussion should continue. He asked that he and Ms Mars should be mandated to raise the issue with Mr van der Merwe, and tell him, formally, what had transpired in this meeting, to ease the way.
The Chairperson thanked Mr Bekker for that offer. The Presiding Officer and his staff would have to be firm without undermining the authority. She would be reluctant to write until after the workshop, in order to demonstrate that there were concerns that could be accommodated.
Other Committee Business
The Chairperson noted that a proposal had been sent by Mr Buthelezi for the introduction of the office of Prime Minister, to the Office of the Speaker. Although she had received an electronic copy during the recess, no copy had reached this Committee. Acknowledgment of receipt did not mean that the matter was accepted by the vetting officers or placing before this Committee. She wondered what criteria were being used by the vetting office, and she was not sure why the Speaker's Office had apparently rejected a proposal that was intended to protect the institution of the President.
The Chairperson noted that if Mr van der Merwe was asked to change his proposal, it was necessary to ensure that it was not held back by Vetting Officers at the Speaker's Office.
Ms Mars commented that the media had reported that the Buthelezi proposal was before Parliament.
Adv Swart noted that it would be premature to discuss Mr van der Merwe's position. The Committee still had to decide whether his proposal in the original form should go before Parliament. If all were in agreement, after the process, that floor crossing be scrapped, the Committee would continue with the proposal as put forward. If not, then Mr van der Merwe would be invited to discuss other options. .
The Chairperson explained that she was very concerned to ensure that letters were acknowledged and progress reports were given. She thought perhaps she should write to Mr van der Merwe, instead of calling him in. She believed he should be kept informed, in view of the lapse of time. Members supported her proposal.
The meeting was adjourned.
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