Crossing the Floor legislation: hearings

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Justice and Correctional Services

12 May 2002
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE;
PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE;
LOCAL GOVERNMENT AND ADMINISTRATION SELECT COMMITTEE;
SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE: JOINT MEETING
13 MAY 2002
CROSSING-THE-FLOOR LEGISLATION: PUBLIC HEARINGS

Co-Chairpersons:
Adv J H De Lange (ANC)
Mr Y Carrim (ANC)

Documents handed out:
"Crossing the floor" legislation (as Certified) March 2002
Constitution of RSA Amendment & Second Amendment Bills, 2002
Municipal Electoral System power-point submission (awaited)
Community Law Centre submission
IDASA submission (see Appendix 2)

SUMMARY
The Joint Committees heard briefings on the Bills from the Departments of Justice and Provincial and Local Government. There are four Bill that make up the crossing of the floor legislation: the Loss and Retention of Membership Bill, two Constitutional amendments and the Municipal Structures Amendment Bill. The Bill allow for crossing of the floor of individual members who make up at least 10% of the total members of a party. They also allow parties to merge, subdivide and to subdivide and merge with another.

Dr Bouwer explained the structure of the Municipal electoral system which consists of three different categories and are further subdivided into councils, subcouncils and district councils.

In the afternoon session the Committees heard submissions from the Community Law Centre, IDASA and the Municipal Demarcation Board. The Community Law Centre advocated more stringent provisions which would have the effect of making crossing difficult to take place. IDASA advocated the inclusion of a single window period.

MINUTES
Adv De Lange, Chairperson, stated that a date had not been set for when the Bills would be heard in Parliament. That would be decided after the parties' preliminary views had been heard. The Bills would hopefully be passed through both Houses by the end of June.

Briefing on the Crossing-the-Floor Legislation
The Chair said that there had been confusion because the legislation dealt with four separate Bills. Three of the Bills were Constitutional amendments but the one from the Department of Local Government was not. All Constitutional amendments require different procedures but the effect was the same - that which is in the Bill becomes part of the Constitution.

In dealing with the Crossing-the-floor (Crossing) legislation, one was dealing with the electoral system that was in the Constitution. The Constitution is very clear on proportional representation. Organisation at national level was based purely on proportional representation (PR), while S157 of the Constitution provides that local government can be based on both the PR and ward systems, and that is the system that was chosen.

The first issue relates to what the Constitution says about PR. The Bills quote all the clauses that deal with it. The next issue was what does Schedule 6 says about crossing the floor. On the local government system it is silent. At national and provincial level it is clear. Annexure A of Schedule 6 reflects the comprise that was reached during the drafting of the Constitution. The compromise reached was that crossing was prohibited but ordinary legislation in terms of Section 76 may be passed to allowing crossing of the floor. The Constitution therefore allowed for it and then provided that it may be provided for via a constitutional amendment following the procedures of ordinary legislation. In other words, requiring a 50% majority to be passed. On that principle legislation was introduced to the Justice Committee to provide for crossing of the floor, which is now before the Committees.

Local government legislation has also been amended - that part of the Constitution that states that PR for local government may be amended to allow for crossing. The procedure to be used would be the same as for a S74 Bill, but that part of S74 where only the NA was involved. With those two Bills, crossing of the floor would be allowed. However, it was also imperative to minimise the opportunities for constitutional challenge. To do so, it was necessary to amend and put all the detail in the Constitution. This would allow the court to interpret the legislation holistically. Constitutional amendments could only be challenged against S1 of the Constitution.

The third principle was that people were sent in from the provinces to the NCOP and this amounted to indirect representation. The potential was then created for the situation where, if the numbers in the province changed, a change would have to be effected in the NCOP. This was not provided for at the moment but would have to be provided for in a separate Bill to be passed by both Houses. Crossing does not happen at NCOP level but may be effected indirectly through crossing at parliamentary level.

The fourth amendment was from the Department of Local and Provincial Government and was an amendment to the Municipal Structures Act, which flows from S157 of the Constitution, to bring it in line with the Constitutional amendments.

He asked Mr De Lange to set out the detail of the three pieces of legislation.

Loss or Retention of Membership of National or Provincial Legislatures Bill [B16-2002]
The National Assembly had given permission to the Justice Committee to proceed with the Bill as published in the Government Gazette on 16 November 2001. The Bill must be passed in terms of S76 of the Constitution and deals with parties' membership at national and provincial level.

The provisions might be subject to change. The Bill had been drafted fairly quickly and since then it had been realised that certain principles could be improved and it was likely that its provisions would be brought in line with the constitutional amendments. The Bill makes provision for windows of opportunity during which parties/members will be allowed to merge with another party, change to another party or subdivide. This would only be allowed twelve months after elections and not in the twelve months before an election. It must be accepted that this Bill is subject to changes in the local government amendments, which will be spelled out in more detail.

The Bill is a Constitutional Amendment and in terms of the Constitution, this Bill must be approved only by the NA, and the other constitutional amendment by both Houses. This is what had led to them being tabled as two separate Bills. The first deals with a change of party membership at local government level.

Its specific provisions allow that crossing may not take place in the twelve months after or the twelve months before an election. The change will only be allowed if members wishing to leave consist of at least 10% of the seats allocated to that party. Two limited periods during the year are allocated during which crossing might take place and have been defined as the first to the fifteenth of February and September. During that period, a party is not allowed to do anything that will detrimentally effect that person's seat, i.e. they are not allowed to discipline.

The Chair asked whether that did not apply after the window period.

Mr De Lange responded that it only applied during the window period. He continued that during that period, the person/party was allowed only one change. That is what is contained in the first amendment. The second Constitutional Amendment is based on the principle that the NCOP is composed of a single delegation: ten members consisting of six permanent members and four special delegates. The parties represent the situation at provincial government level. There was no mechanism at the moment for provinces to review representatives at NCOP level. The second amendment allows for this.

The fourth Bill contains amendments to the Local Government Municipal Structures Act and is essentially a "clean-up" piece of legislation intended to bring the Act in line with the amendments being made.

The Chair stated that when Constitutional amendments are introduced, the Constitutionrequires strict procedures to be followed. He had checked all the procedures and was happy that everything had been complied with but recommended that Members verify it for themselves. He noted that amendments may not be passed unless one month had elapsed since its introduction into parliament, which had been identified as the 19 of April 2002. He asked if Ms Mande of the Department of Local Government had any input on the Municipal Amendment Bill.

Ms Mande replied that the Local Government Municipal Amendment Bill came about as the result of the Department of Justice proposing the Constitutional amendments. It had been published for comment in March of 2002. The proposed amendment to the Act was intended to compliment the Constitutional amendments and was essentially a "clean-up" Act, as Mr De Lange had said, to make certain that the whole system was in line.

Discussion
Dr Delport (DP) asked if there was anything in the amendments that could be construed as moving away from the principle of PR at election level.

Mr De Lange said there was nothing in the legislation that diminished the principle of PR but he said that Dr Delport would have to judge for himself whether the limitations would amount to it. However, there was nothing to affect it detrimentally.

Ms Camerer (NNP) referred to Mr De Lange's comment that there might be changes made to the Retention Bill, and asked if there were any specific changes he would like to draw attention to.

Mr de Lange said that the answer was quite simple. Changes regarding membership would allow for only one window period during the course of a relevant year, but the Constitutional Amendment would put the window period in the Constitution itself. Protection awarded to potentially crossing members had not been included in the Membership Bill, that crossing would not be allowed in the twelve month after or twelve months prior to an election and that a 10% minute was necessary in order for members to cross.

Ms Borman (DP) asked for clarity on the issue of leaving a party simultaneously.

Mr Carrim inquired if 10% of the members of a party opted to leave that party, could they then subsequently join different parties.

On the last two questions Mr de Lange said that 10% was needed but they did not all need to join the same party. Ten percent had to leave simultaneously but they were allowed to join different parties.

Mr Jeffrey (ANC) asked if the restriction allowing one move applied to only that window period. He asked for motivation for the two window periods and a rationale for those dates. On the NCOP, he asked if members of the NCOP could cross the floor on their own. It appeared that they could not but what consideration had been given to that? The amendment did not expressly state what happened to people who had lost their seat. It did not state that they have to leave their seat.

Ms Mhlangu (ANC) asked what happened to the smaller parties with only one or two members.

Mr De Lange replied that the answer to Mr Jeffrey's question was quite simple. During a window period, parties may only cross once. Theoretically there should be six window periods during a term. With regard to the two periods, he said that there was little to say. The original concept was that the Membership Bill had left it to the President to declare the periods. It had then been decided not to do that and had settled on two short periods. This was, however, very much a policy decision. It was important to form some sort of limit.

The Chair added that it revolves around how little destabilisation was wanted and indicated that the Committees would have to discuss this.

Mr De Lange said, regarding the NCOP, that they had worked on the principle that the NCOP is a representative body and therefore did not even consider crossing. With regard to consequences, they were dealt with in provincial legislation.

The Chair stated that the bigger problem was that a formula was needed.

Mr De Lange responded that if there were concerns about members crossing in the NCOP and the consequences of it, he would do a check and make sure that nothing had fallen through the cracks.

In response to Ms Mhlangu's question he said that only 10% of small parties was required to enable them to move which meant that the smaller the party the easier it would be for them to cross.

The Chair commented that it would be easier to round it up to the highest number. It was not possible to have 1.6 persons cross the floor so it would have to be increased to two.

Mr Magwanishe (ANC) asked if the amendments were an interim measure.

Mr Molewa (ANC) queried how the people were going to be consulted if every party was representing the people in the constituencies.

The Chair responded that they would not be consulted. Like any democracy, it would be the decision of the individual legislature.

Adv Schmidt (DP) asked, if the Membership Bill was being passed in terms of ordinary legislation, would amendments being made after the passing of the Membership Bill require the same percentage to be passed.

The Chair explained that there is a provision in the Bill which provides that it could again be amended in terms of a S76 Bill.

Mr Swart (ACDP) referred to the issue of smaller parties in light of a Constitutional Court ruling that prevents parties from enticing smaller parties. He suggested that a possible solution would be the Indian approach which lifts the threshold for smaller parties to prevent such a situation.

Mr De Lange, answering Mr Swart's question, said that he had not looked at the Indian provision but that it could be something for the Committee to look at. The legislation was intended as an interim measure and it could be said that it depended on Parliament who determines the next system and whether or not this is interim in nature. This eventuality had been foreseen and the need had arisen.

Ms Southgate (ACDP) asked how, in terms of the IEC, party funding would be affected and, with regard to parties merging, if it was possible for a party not in Parliament to come into Parliament.

Mr De Lange said that he could not answer Ms Southgate's question but that the Committee should wait and see what the IEC's view would be.

The Chair said that there could be a problem with people who had given money to parties. Who would then be entitled to the money? He said that these would be practical problems.

He said that a party could come into the legislature through merger or subdivision. This did not occur through the Bill but there was a need to look at other legislation to see the effect.
Personally, he saw the legislation as a transitional arrangement to create some fluidity. It may then be necessary to consider what would be wanted in 2004.

An ANC Member asked for elaboration on what had happened at local government level to exclude them, bearing in mind the concept of spheres of government.

Dr Delport said that there was a distinction at local government level between ward councillors and those appointed from the list. He asked for confirmation on the position that the 10% requirement pertained to the list councillors only while the ward members could move on their own.

Mr Jeffrey said that as far as consequences were concerned, there was a need to look at some others, for example, the issue of funding. On the issue of the NCOP, he was concerned that the way the amendments were being drafted was to change as little as possible and was silent on the issue of people having to leave their seats. He felt that in this regard the wording needed to be looked at.

Ms Camerer said that Schedule 6 makes specific mention of the manner in which provincial crossing can take place. She asked if legal opinion had been obtained to do it that way unless the 10% had been obtained.

The Chair replied that that was a political decision.

Mr Carrim asked if it could be argued to the Constitutional Court that the legislation is unconstitutional because it does not allow a single member to cross the floor. He felt that it was fine when the party concerned was a small one but did not cater for a large party.

The Chair responded that the issue was simple. It is a Constitutional Amendment, therefore the only way that it could be challenged was in terms of S1 of the Constitution and there was nothing in Section 1 to say that one could not cross the floor.

Mr De Lange responded that there is a possibility that the actions were outside the requirements of the empowering provision. However the 10% criteria is just one of the criteria where parliament has a free hand to determine the criteria. He said that Dr Delport was correct, they were still making the decision concerning the ward and the list councillors.

The Chair said that the way it was written now, it referred to 10% of all councillors and made no mention of ward councillors.

Ms Lubidla (ANC) queried what would happen to a party that found itself left with a percentage below the required percentage.

In answer to Ms Lubidla's question he said that nothing would happen to the party but the individual member concerned would be vulnerable after the fifteen days. The reason why provincial and local government were treated differently was due to a historical reason. Local government had always been treated differently and that was why they were treated differently now.

Rev Goosen (ANC) asked if he was correct in saying that if a ward councillor crosses the floor it would affect the PR list councillors and the district councillors.

The Chair said that it would affect the district councillors. It was still open for debate whether it would effect the list councillors, etc. it stood now it could affect them.

Ms Lubidla asked if the special delegates of the NCOP were allowed to cross the floor.

The Chair replied that no one in the NCOP was allowed to cross the floor.

Mr Mshudulu (ANC) raised the issue of accountability. In terms of the Municipal Structures Act, a code of conduct was required. He asked whether, in the process, a way would be found to pre-empt or avoid the issue of accountability through a code of conduct.

Mr Mahlawe (ANC) said that in terms of the NCOP, the caucus elected the six permanent delegates and the four permanent delegates. Special delegates were not allowed to cross the floor, but if they crossed at provincial legislature level were they then allowed to change as special delegates?

The Chair responded that crossing may happen in their capacity at provincial government but the representative may change at NCOP level and delegates may have to be realigned. The problem lay with permanent delegates.

Ms Rajbali (ANC) asked if the vacancy that would be created by a Member crossing the floor would then be filled from the party list.

The Chair responded that there would be no vacancy as you took your seat with you when you crossed the floor.

Mr Jeffrey said, on the issue of the difference between ward and PR councillors that he understood that a PR councillor needed 10% to move but a ward councillor could move on his own. He felt that it was a contradiction to separate them.

Dr Bouwer replied that it was a principle that ward councillors may have their independence.
In answer to Mr Mshuduli's question he said that that was the purpose of the window period, a person could then not anticipate disciplinary hearings.

Briefing on Municipal Electoral System
Dr Bouwer briefed the Committees on behalf of the Department of Provincial and Local Government. (For the full briefing, see power-point presentation)

Dr Bouwer said that an important aspect to note was that there are three categories of municipalities. Category A are the metropolitan councils. Category B are the local municipalities and fall within category C. Category C municipalities are all those municipalities that are not category A municipalities and include district municipalities.

Municipalities in Category B are represented proportionally on the district council. District management areas are usually sparsely populated areas such as the Kruger Park. The local municipalities govern them. Either Category A's or Category B's governs all areas in South Africa.

Regarding the electoral system, he said that Category A's and Category B's are the same.
Every voter has two votes, a PR vote and a ward vote. On the ward system, the first past the post wins. Ward councillors do not need to represent a political party, i.e. they are independents. Therefore ward councillors can join a party or can be in a party or can become an independent. Political parties are registered for a particular municipality. Local councils have PR on their district council. The principle to decide on is what will be the impact of a change within a local municipality. It stands to reason that this would have an impact on district municipalities in some circumstances.

Discussion
The Chair asked whether it was possible for the 40% of directly elected district councillors to walk over.

Dr Bouwer replied that this was the correct position concerning the 40%. The 60% of indirectly elected councillors could not move in the district council, they would have to move in the local council.

The Chair asked what was the position regarding subcouncils. He felt that they were something unique, something a municipalities could choose to have through a by-law and therefore difficult to provide for.

Dr Bouwer replied that subcouncils were established through internal decisions of the council. A recalculation of the PR composition was not done. After an election the PR composition was determined.

Ms Chohan-Kota asked for clarity on subcouncils. She understood that the proportional contingent was calculated in terms of the number of votes cast for that party in the elections but wondered how that proportion was maintained.

Ms Camerer asked if the situation were possible for both the ward and PR councillors to cross the floor and in particular, how was the 10% applied to the PR and not the ward councillors.

Mr Jeffrey asked if there should be provision to allow for a replacement on the district council who had moved at municipal level.

Mr Mahlawe (ANC) said that the ward councillors did not represent a party and asked if they could not then use the window period to join a party.

The Chair asked Dr Bouwer to respond to the questions on clarity but not to those referring to solutions.

Dr Bouwer said that the principles of PR were being retained. The present proposals would not do that. Once a person crosses the floor it would not be possible to replace him. The same proposal would apply to subcouncils but a provision had not yet been made for that.

The Chair asked from where had proportionality been frozen.

Dr Bouwer replied that it had been frozen up from the municipalities up.

The Chair responded that debates would have to be held on these issues.

Ms Camerer inquired if he ward councillors did not get counted as the 10%.

The Chair replied that ss(2) provides that everybody gets counted, including the ward councillors. He said that it should be discussed whether it should only apply to the PR.

Ms Chohan-Kota explained that one of the reasons for a mixed system was S157(3) of the Constitution, which was now being amended. She asked if there was a possibility for the insertion of a "notwithstanding" clause to allow crossing at municipal level.

Mr Cassim felt that the Justice Council might be bemused and bewildered by this detail. Dr Bouwer's presentation was a technical briefing on the electoral system but did not include the underpinning values. They were based on compromises made during the drafting of the Constitution and were based on the concept that large metropolitan councils would not have much representation from the ground. It was important to bear this in mind as going this route would substantially reshape the model of local government.

The Chair believed that that debate could be raised another time. To Ms Chohan-Kota he said that it was agreed during the negotiations phase not to make use of terminology such as "notwithstanding". It was clear that the issue of subcouncils needed to be discussed a lot.

Afternoon session
Community Law Centre Submission
The Community Law Centre (CLC), represented by Prof Visser and Ms Smith, centred their submission on the principles around anti-defection and implementation. They were particularly concerned about the possibility for corruption.

They were concerned that the 10% threshold was too low. The result of setting the threshold at 10% is that, if a party has 10 or fewer PR councilors, any individual councilor can defect during any of the window periods. This situation will apply to a very substantial number of municipalities.
They recommended that the threshold be increased to 25%.

It was felt that the legislation provided inadequate protection against individual defection. The principle is that a significant shift in opinion within a party should not be punished by the loss of council seats. However, the amendment has not been worded to incorporate that principle.

On implementation, it was felt that S158A did not belong in the Constitution as the amount of detail was unwarranted. Their opinion was also that the proposals fail to deal with district representation. It was recommended that the local council re-elect its district representatives after its composition had changed during one of the window periods.
(For the full submission see appendix.)

Discussion
The Chair thanked the CLC for highlighting the seven main issues and other sub-issues.

Ms Camerer asked for clarity on the question of the whole spectrum of councils counting for the 10%.

The Chair responded that the Act was quite clear. The 10% did not apply to ward councils.

Mr Camerer asked why the CLC had been under that impression. It had been agreed, concerning the 10%, that the idea was to prevent instability. She asked what their views would be if it only happened once a year in terms of the 25%.

Dr Delport was not sure that it would serve the same purpose to say that people should go to one party. He was concerned by the 25% and asked if it would not be better to limit the opportunities rather than make it difficult to happen.

Mr Jeffrey said that the 25% threshold was based on the fact that 10% did not apply in total. He asked if the CLC would concede that the 10% was sufficient if they conceded that the 10% did not apply to the total. He asked for motivation on Members going to one party.

Prof Visser felt that even if the 10% were conceded, it would still allow a significant number of municipalities to allow independents to cross the floor.

The Chair asked if he agreed that, at the moment, there was a free for all in local government. This created serious possibilities for corruption. They were now trying to get a mechanism to solve this. Prof Visser's solution, he felt, was not to have any legislation but to rather make it as difficult as possible to cross the floor. He questioned what this would achieve.

Prof Visser replied that the proposals could be taken whole scale or bit by bit. The fundamental issue was that they believed that if crossing was allowed for it would result in a shift in ideology. The same answer would apply to whether or not the window period is sufficient.

The Chair asked if he thought the window period was not sufficient.

Prof Visser replied that he was worried about individual deceptions and felt that it would not be sufficient. He felt that the 10% could be included but with a limit on it to require that it should include a specified minimum number of members.

Mr Cassim asked if it were possible, where a combined system was used, that a ward councillor was more accountable. He said that he was a bit more sympathetic to the argument. It was right to cross the floor but it must be balanced by the need for stability.

The Chair wanted to know what studies had been done to back this up. He had only read a German study. He would like to read something and felt that speculation was not enough.

Prof Visser replied that, concerning the directly elected councillors, that the same considerations would apply to the district councillors as to the local councillors. He said that he would see to finding some relevant studies.

The Chair asked if he agreed that the 10% applied to the district councils.

Prof Visser agreed that it did.

The Chair asked if he still believed that it should be increased to 25% and if he knew of any system in the world based on a constituency where it was necessary to have a percentage attached to crossing the floor.

Dr Delport said that he still could not understand what the difficulty was with instability. He felt that the rationale could not still be instability if the ward councillor was responsible to his party.

Prof Visser said that one of the rationales was to prevent instability. The other was to prevent political corruption. That was their main rationale.

IDASA Submission
IDASA, represented by Mr Ebrahim Fakir, felt that given South Africa's present political system, it would not be sensible to consider its two elements - the electoral system on the one hand, and the rules pertaining to "crossing the floor", on the other - in isolation. He felt that there is a need to investigate making provisions for individual expressions of differences in political sentiment in the institutional context of parliament - through this Bill.

In particular, IDASA supported the determination of window periods, to be decided by legislation rather than Presidential proclamation. While supporting the 10% threshold, it was felt that space should be created for the individual member to express a change in political sentiment in the current system. Their recommendation was to allow individual members to express a change in political sentiment as independents - without having to necessarily affiliate or subscribe to a party. Where members wish to join another party, or in the instance of mergers and subdivisions of parties it was recommended that the 10% threshold remain.

In conclusion, Mr Fakir said that there had been significant developments since the publication of the legislation, in particular the Van Zyl Slabbert Commission. The proposals in the Bill were incongruous with the Constitution and Electoral laws. The PR system was currently in place and there was consequently a culture of political parties. He submitted that Parliament postpone the Membership Bill.

Discussion
Dr Delport referring to paragraph 21 of the submission, said that at the moment an individual is allowed to cross the floor and asked why it should be limited in an artificial way.

Mr Jeffrey said that the appoint of the Slabbert Commission had taken place before the 27 of April and was therefore not sure about the change in IDASA's position. He asked what their views were concerning local government.

Ms Camerer said that she had found many inconsistencies in respect of the comments relating to independence. In terms of stability, a single window period had been talked of, did Mr Fakir think this would stabilise the situation. She asked him to comment in terms of the downside in our democracy.

Mr Fakir suggested that independents may move if they wished to do so but under certain circumstances.

The Chair responded that this might cause problems with the equality clause if they were allowed to do something that others were not.

Mr Fakir replied that it was a matter for further investigation but did not see why it should not pass the equality clause. In answer to Ms Camerer's question he said that a country like South Africa needs the PR system with regard to its diversity, but it was also to create the possibility for independents to assert themselves.

Mr Matthee (NNP) commented that it did not appear to matter anywhere else in the world. The CLC had indicated that it applies irrespective of whether the electoral system is based on parties or constituencies.

Ms Camerer raised the possibility of a singe three month window period.

Mr Fakir still advocated a single window period as this would be more reasonable and would create more stability.

The Chair asked what was unique about South Africa that the proposed system could not be used.

Mr Fakir replied that the effect was that a synergy could not be found between the three pieces of legislation. IDASA had not applied its mind to whether another mechanism was possible. The only possible solution was the one that was in the submission.

The last hour of the meeting was not captured.

Appendix1:
idasa

 

CAPE TOWN DEMOCRACY CENTRE

Loss or Retention of Membership of National and

Provincial Legislatures Bill

Submission to Portfolio Committee on Justice

1. IDASA welcomes the possible lifting of the anti defection clause.

2. Applied with discretion, its consequence will be to give effect to the Constitutional

Guarantees of fundamental political rights - the freedoms of association, expression

and conscience.

3. At first sight, it would appear that in terms of the current constitutional, electoral

and political dispensation such possibilities are incongruous - because of the nature

of the current electoral system.

4. The current electoral system is one based on a proportional party list, where public

representatives/members at National and Provincial Legislatures are proportionally

elected off/from political party lists rather than directly elected in Constituencies as

individual Party Representatives or as individuals in their own right.

Consequently, the formal political and institutional culture is one that is dominated

by political parties and the political discourse is one that is articulated through

political party affiliation and subscription.

5. This is an important point - one that has significant bearing on the fact that the

draft Loss or Retention of Membership of National and Provincial Legislatures Bill

is based solely on allowing expressions of changes in political conviction and

ideological persuasion through party affiliation.

6. This, we submit, is one of the issues that will require the attention of the task team

appointed by President Mbeki under auspices of Prof F. van Zyl Slabbert to

examine the options for electoral reform. We submit that it would be not be

sensible to consider the two elements of the political system - the electoral system

on the one hand, and the rules pertaining to "crossing the floor", on the other - in

isolation.

7. Irrespective of the conclusions that may be reached by the Electoral Task Team,

there is a need to investigate making provisions for individual expressions of

differences in political sentiment in the institutional context of parliament - through

this Bill.

8. IDASA in an earlier written submission to the Portfolio Committee on Justice and

Constitutional Development [National Assembly, 07 January 2002], supported a

qualified lifting of the anti-defection clause.

The qualifications expressed then being:

  1. The legitimacy and credibility of the determination of "windows of opportunity" for "crossing the floor" pursuant to the new law, should be stipulated by legislation and, thereby, be predetermined, rather than be the subject of Presidential discretion (as proposed in the earlier draft).
  2. That limitations be placed on the scope and period within which changed political allegiances are expressed.

The qualifications set out serve to promote the interests of political integrity and stability.

  1. Point 1 refers to a qualification that regulates the expressions of changes in
  2. political allegiances by way of procedure and process rather than by way of

    political prerogative, which prerogative may be employed for party political and

    or expedient gain.

  3. To leave the decision of allowing the window of opportunity to be determined by
  4. the President, renders the process susceptible to the wills and fancies of the

    political incumbent of the day, and, thereby, to a loss of credibility in the eyes of

    the electorate.

  5. Point 2 is a qualification which aims to promote political stability in a context

which could see constant changes and defections, thereby changing the set of

political and representational configurations on an almost constant basis. The

resulting instability is an undesirable consequence. One of the most desirable

features of the South African transition, in contrast to others in Eastern Europe or

Latin America where parties have proliferated, is the political stability that has

accompanied the institutional and societal transformation.

12. Our specific recommendations in this regard were, therefore, that:

12.1 The prerogative to proclaim periods when defections may be possible be taken out of the wide discretionary powers of any political incumbent and be subject to procedure and regulation. In this regard legislation must stipulate the relevant range, scope and opportunity for members to express themselves should they so wish.

12.2 To maintain political integrity and stability we recommended that this range and scope be limited to three months in the third year after the proclamation of an election result, which as a rule would alleviate the need for presidential proclamation or prerogative.

  1. The revised draft of the Loss or Retention of Membership of National and
  2. Provincial Legislatures Bill incorporates a number of these proposals, advanced

    in IDASA's earlier written submission and so, naturally, we support those

    changes.

  3. IDASA consequently welcomes the publication of a revised draft of the "Loss
  4. or Retention of Membership of National and Provincial Legislatures Bill".

  5. In particular, we support the determination of "windows of opportunity" for
  6. "crossing the floor" and for mergers and subdivisions of parties, as stipulated in

    section 23(A)5, rather than it being the subject of Presidential discretion (as

    proposed in the earlier draft). We believe that this pre-determination through

    legislation will lend a degree of legitimacy and credibility to any changes in the

    institutional representation of political parties.

  7. We further welcome the limitations and stipulations expressed in Section
  8. 23(A)(5)(a)(i) and (ii) and (b)(i) and (ii). We trust that this will promote political

    stability and integrity in Legislatures and attempts to avoid a possibly almost

    constant reconfiguration of the representational profile in Legislatures.

  9. In particular, the introduction of a minimum threshold of 10% will ensure that a
  10. sufficient consensus in opinion is discernable where changes in political affiliation

    would take effect. This is particularly relevant in the case of mergers and

    subdivision of parties.

  11. We recognise that the introduction of a ten% threshold and the limitations
  12. imposed on defections, mergers and subdivisions aims to introduce some degree

    of consistency between the conceptual logic of the electoral and political system

    and the provisions of the "Loss or Retention of Membership of National and

    Provincial Legislatures Bill".

  13. We recognise also the efficacy of the threshold and the limitations imposed on
  14. "defections", mergers and subdivisions of parties in promoting political stability

    and integrity while allowing for changes in political persuasion without

    substantially compromising the principle of proportionality.

  15. In the case of individual members, however, the minimum threshold of 10% might
  16. serve to prejudice members of larger parties, where it may be more difficult to

    mobilise 10% of members to change allegiance. At present, and in the context of a

    party dominated system, this stipulation seems reasonable. This reasonableness,

    however - should not preclude the investigation of creating the space for

    individual members to express a change in political sentiment in the current

    system and we feel this should be a part of the continuing deliberations of the

    Commission investigating future electoral options for South Africa.

  17. Our Specific recommendation in this regard pertains to allowing individual
  18. members to express a change in political sentiment as independents - without

    having to necessarily affiliate or subscribe to a party. Where members wish to join

    another party, or in the instance of mergers and subdivisions of parties we

    recommend that the 10% threshold remains.

  19. Any changes in an individual member's wish to leave a party, yet retain a seat as
  20. an independent MP could be made subject to further regulation, such as the

    ordinary regulatory framework that governs the registration of political parties at

    the IEC. Thus, for example, a requirement could be imposed that a member

    becoming an "independent" submit a list of five hundred names and

    signatures supporting such a member's desire to become an independent.

  21. Parliament, we submit, is still developing a new culture of oversight. Developing a meaningful culture of oversight over the executive, as envisioned by the Constitution, is a complex task that requires the linking of a number of different institutional and political strands. The right to cross the floor is, we submit, one of those strands. In this context, we submit, the argument in favour of permitting individual MPs to become independents is strengthened.
  22. We intend to develop this basic submission in due course, and look forward to expanding our arguments before the portfolio committee during the course of an oral submission.

 

For Inquiries Contact:

Richard Calland Ebrahim Fakir

Senior Constitutional and Political Analyst Political Researcher

Richard@idasact.org.za Ebrahim@idasact.org.za

083 259 1736 083 521 3189

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