Van Der Merwe's Constitution Fifteenth (Floor Crossing), Swart's Constitution Sixteenth Amendment Bills

Meeting report

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
17 October 2006
VAN DER MERWE'S CONSTITUTION FIFTEENTH AMENDMENT BILL (FLOOR CROSSING); SWART'S CONSTITUTION SIXTEENTH AMENDMENT BILL

Acting Chairperson: Mr C Lowe (DA)

Relevant documents:
Mr J van der Merwe (IFP) Memorandum and proposed Constitution Fifteenth Amendment Bill
Mr S Swart (ACDP) Memorandum on Constitution Sixteenth Amendment Bill
IDASA submission on floor crossing to Joint Constitutional Review Committee

SUMMARY
Mr van der Merwe presented his legislative proposal, the Constitution Fifteenth Amendment Bill (Floor Crossing). The Committee unanimously decided on the desirability that this debate be continued. Parties would take the Bill to their respective caucuses.

Mr Swart briefly introduced the Constitution Sixteenth Amendment Bill, the object being that Section 39 of the Constitution, Act 108 of 1996, be amended by the addition of a subsection reading “(4) The Constitution shall be interpreted to mean that marriage was a voluntary union between a man and a woman.”

MINUTES
In the absence of the Chairperson, Mr C Lowe (DA) was elected as Acting Chairperson.
 
Van der Merwe's Constitution Fifteenth Amendment Bill (Floor Crossing)
Mr van der Merwe briefed the Committee on his legislative proposal, the Constitution Fifteenth Amendment Bill, 2006. He referred members to his Memorandum on the Objects of the Bill, gave the background to and objects of the Bill.

Mr van der Merwe had submitted this Private Members’ Bill after the Inkatha Freedom Party had been inundated with criticism and dissatisfaction from its supporters against what had become known as the Floor Crossing legislation. There had also been voter dissatisfaction from supporters of all political parties.

Floor Crossing became law when four bills were passed in 2002/03 making it possible for members of legislatures to cross the floor and take their seats to other parties and for new parties to be formed, for mergers between existing parties, for parties to subdivide and for subdivided parties to merge with other parties.

Many held the opinion that the Floor Crossing legislation was created as a special constitutional mechanism to enable members of the then New National Party (NNP) to join the ANC. It was also argued that now the NNP were with the ANC, the need for floor crossing no longer existed.

Criticism against floor crossing had reached such an advanced stage that President Mbeki earlier this year had given the green light for a debate on floor crossing. The IFP welcomed that stance and regarded this meeting as an ideal kick-off for such a debate.

The IFP was of the opinion that floor crossing was fundamentally undemocratic and in contradiction of the Constitution. In terms of the proportional system enshrined in the Constitution, voters voted for political parties, not for individuals. Political parties compiled lists of candidates for election and therefore determined who were to represent the party in legislatures. The logical result was that seats won were the property of the political party and not of individuals. A member who gave his party’s seat to another party was guilty of nothing less than a form of constitutional theft, because that seat did not belong to the member but to the political party. By giving their seats to other parties, floor crossers transferred rights which they themselves did not have, and so, in the opinion of the IFP, floor crossing was not only undemocratic and in contradiction of the Constitution, but also against centuries-old principles.

Floor crossing also led to abuse and political instability. Disgruntled members simply crossed the floor to other parties against the wishes of the electorate, thus nullifying the votes of the electorate. They crossed the floor for selfish reasons or for greener pastures. floor crossing had been described as political greed and merely concerned with short-term interests, rather than the wishes of the electorate.

Apart from the Independent Democrats, Mr van der Merwe could not find any evidence of any such newly formed party surviving a single election. The voters, at the first voting opportunity, had therefore eradicated floor crossers forming their own parties. If ever there was a travesty of democracy, it was for members elected onto a party list, forming a new party, with no voter mandate at all. Who did they represent? Only themselves, of course, making a constitutional laughing stock of South Africa's democracy.

The time had arrived for South Africa to return to democracy and to return to a system where the will of the voters was respected by Parliament, and where the objects of the Constitution and legal principles were respected. The only way to do that was to scrap floor crossing. Mr van der Merwe therefore moved that the Constitution Fifteenth Amendment Bill, 2006, be accepted.

Discussion
Mr Lowe asked members to be aware that there was little time available before the plenary session began and asked for comments as to whether to continue with the debate.

Dr J Delport (DA) shared the views of the Democratic Alliance. He had, on behalf of the DA, submitted a similar proposal shortly after Mr van der Merwe’s Private Members’ Bill was tabled.  Bar one or two minor differences, it was almost an exact copy of Mr van der Merwe’s Bill. One of the issues that could not be escaped was the fact that floor crossing had created a situation where, especially at local government level, chaos was created. There one had a small municipality where the party holding power held that power with a majority of one or two. The floor crossing of only one or two members caused the balance of power to shift. All over the country, if that occurred, then new municipal managers and senior staff were appointed at a cost eventually of millions of rand.

Apart from the philosophical reasons, there were the very practical reasons that South Africa simply could not afford floor crossing any longer. The situation could be alleviated by simply changing the minimum percentage requirement to a minimum number of persons requirement. Instead of setting a percentage of 10% of a party wanting to leave the party (which in many instances in a small municipality meant only one person), one could set a minimum number of, for example, ten people. That would mean floor crossing would be restricted to the legislatures and the National Assembly.

Dr Delport hoped that the ANC would do what the President had urged members to do and have a proper debate in that meeting, because even if Mr van der Merwe’s proposal was not entirely acceptable, then at least members must remove the very worst consequences of floor crossing. If a minimum number of persons was set instead of a percentage, it would mean that smaller parties would not be able to cross the floor in the Assembly. A party with three people representing a certain view amongst people was entitled to have their views heard. It was indeed a travesty of justice and democraty to have that small number deserting what voters entrusted to them.

Dr Delport urged the Committee not to end this debate but to seek ways and means of either supporting Mr van der Merwe’s proposal or to seek amendments to it that would make it acceptable to all parties, and he hoped that the meeting would reach consensus on this matter.

Mr P Gerber (ANC) did not think there was a single party in Parliament that had a unanimous view on floor crossing, but as Mr van der Merwe quite rightly said there was a need to do what the President had said and start the debate. In view of the time factor, he proposed they take a decision for parties to discuss this in caucus and come back to the next meeting with a mandate.

Mr A Ainslie (ANC) supported Mr Gerber. In the interests of time and the proposal just made, this was a very serious matter and he agreed parties should discuss it and come back fairly soon. As a member of the committee, he reiterated that its members had open minds and loved an open debate.

Mr H Bekker (IFP) seconded Mr van der Merwe’s proposal but reminded him that what had been presented was strictly a private members’ motion and not a political party viewpoint. From the point of the Committee, the way forward would be that the meeting take a decision about the desirability to proceed with this particular legislation and form debate around it. That would be in line with the basis of how the Private Members Committee operated. There appeared to be no direct objection to the debate. He moved that the meeting go to the second phase and call for a vote on the desirability to continue with debate on this bill. As proposed by Mr Gerber and Mr Ainslie, the Committee should accept the desirability that the debate continue and the matter be taken to the different caucuses.

Mr G Magwanishe (ANC) aligned himself with Mr Ainslie and Mr Gerber.

Mr A Harding (ID) agreed that this matter was extremely important, not just for Parliament, but for the democratic development of this country. Logistically, the meeting had been arranged for between 1 and 2pm. If all agreed that this was a serious matter, slotting this matter in over a lunch time could not do justice to the gravity of the situation. The previous meeting on this had had to be cancelled. This matter should be treated with a lot more importance.

He said that the Committee would have to look into research done on floor crossing, disseminate that information, and speak on an informed basis. The Committee would need to get in constitutional experts on this matter in order to give some credibility to the whole process.

He agreed with what other speakers had said. Some of the results coming out of surveys on floor crossing, was that floor crossing had definitely had a negative effect on the democratic development of the country in terms of voter confidence and for people taking part in the electoral process. Coming from a liberation background, one had fought too hard for a free democratic South Africa to have those very same people now withdrawing from that process. It would be a smack in the face of the efforts of all those people who paid with their lives, and floor crossing contributed to that. He called for the scrapping of the floor crossing legislation.

Ms S Rajbally (MF) submitted that the Minority Front agreed with the memorandum presented by Mr van der Merwe. Taking into account the democratic rights of people, the MF would not stand between democracy and the present matter. The right thing to do would be to move where you wanted to move, but that right belonged to the public. It did not belong to a local government election with ward councillors. Floor crossing had really killed democracy and people disrespected a person who had crossed the floor.

Mr S Swart (ACDP) wished it to be recorded that the ACDP consistently opposed floor crossing and supported Mr van der Merwe’s legislative proposal.

Mr Lowe noted there were three proposals:
- Mr Gerber and Mr Ainslie’s proposal to go into party caucuses
- Mr Bekker’s proposal to take the matter forward, saying the Committee agreed
- To defer the matter and get more information and research.
He hoped the Committee could come to a decision without needing a vote.

Mr Bekker did not see any difference between his proposal and that of the ANC. All he had added was that in terms of the rules of the Committee before it could really proceed, it formally needed to state if it was desirable to continue or not.
 
Mr Gerber agreed with Mr Bekker. The issue was that there was a desirability to continue the debate and the ANC had no problem with that.

Mr Lowe concluded that the Committee had met and held discussions and proposed to take the matter forward for discussion. He stated that the Committee had unanimously decided on the desirability that this debate be continued.

Mr Delport suggested that on the subject of information, there was a wealth of information from IDASA on floor crossing before the Constitutional Review Committee and it would be helpful to approach that committee to make the documentation accessible to the committee.

Mr Lowe informed Mr Harding that his concern about the meeting time slot had been noted but it was not the easiest committee to get together.

Swart’s proposal: Constitution Sixteenth Amendment Bill
Mr Gerber suggested that there was not sufficient time available to do justice to Mr Swart proposal. Mr Lowe responded that Mr Swart had been given permission to speak to the meeting and the committee needed to keep to that commitment.

Mr Swart briefly introduced the Constitution Sixteenth Amendment Bill which dealt with the Fourie judgement of the Constitutional Court and the issue of same sex marriages. It was an issue currently drawing huge public interest, which was one of the reasons that the African Christian Democratic Party had moved for this proposal based on the viewpoint of the Marriage Alliance, which represented some 20 million people.

His memorandum set out what was proposed bearing in mind that the court judgment had made it clear that there should be some legislative framework with regard to legal benefits for homosexual couples. Whether it amounted to civil union or to marriage itself, one could gauge that at a later stage.

For now, the ACDP proposed a constitutional amendment to protect the traditional concept of marriage between a man and a woman. The ACDP did not propose any amendment to the Section 9, the Equality clause in the Constitution. The proposal would go to the interpretation clause and would not affect the rights of homosexual couples to a legal and legislative framework in terms of that constitutional court order.

He said that the ACDP fully appreciated this matter was before the Home Affairs Portfolio Committee. This issue had provoked deep conviction and strong emotions. He wished to make it clear that in that judgement, there was a balance between the rights of religious freedom and the rights to equality. It was important to state that the government had, in previous court cases relating to the protection of the traditional family, indicated that the protection of family and family life within conventional relationships was an important government objective. During that same court case, it was argued that to disrupt and radically alter an institution with centuries-old significance for many religions, would accordingly infringe the Constitution by violating religious freedom in a most substantial way.

It would also be important to note, when one did that balancing act of interpretation between these two rights, that the Court had pointed out that the religious beliefs held by the great majority of South Africans must be taken seriously. There was overwhelming public opposition to the concept of marriage being touched on in terms of the Civil Union proposal. That was why the ACDP was moving this proposal. It fully appreciated that this was a very emotive issue. It wanted to respectfully, in appreciation of what the Court had said, to enable some legislative framework for homosexual couples and it fully appreciated the need that went to that Constitutional Court order. However, the ACDP was saying it did not necessarily have to go as far as to touch on marriage and it was for that reason that the proposal was drawn.
 
Mr Lowe thanked Mr Swart and informed the Committee that, as time had expired, questions were not allowed and the meeting was adjourned.