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PORTFOLIO COMMITTEE ON JUSTICE; PORTFOLIO COMMITTEE ON PROVINCIAL AND LOCAL GOVERNMENT: JOINT MEETING
16 May 2002
CROSSING THE FLOOR LEGISLATION: DELIBERATIONS
Chairpersons: Adv J H De Lange (ANC)
Mr YI Carrim (ANC)
Documents handed out:
"Crossing the floor" legislation (as Certified) March 2002
Constitution of RSA Amendment & Second Amendment Bills, 2002
The Committee continued their deliberations on the legislation which will facilitate crossing the floor by Members of national and provincial legislatures and also at local government level.
Dr JT Delport (DP) said the DP would like to see the 10% requirement omitted. If it is to stay, then all councillors must be treated the same. They felt that there should be a fall back if it was to be 10%, it should then be 10% for all councillors.
The Chair stated that it seemed like Dr Delport and Mr Jeffery were in agreement on this. They would therefore add the 10% as an amendment meaning that the 10% should apply to all councillors.
Mr JM Ngubeni (ANC) stated that he did not understand if they were saying that the threshold would apply to the list of councillors and ward councillors. With ward councillors the argument was that in terms of the mandate it was problematic for ward councillors to canvass other councillors to make the threshold.
The Chair stated that all the municipal councillors together would form the 10% this meaning the PR councillors and the ward councillors.
Mr JM Ngubeni asked why there was the distinction between the PR and ward councillors.
The Chair explained that the Act was drafted in this manner and what Dr Delport was saying was that if there was going to be this 10% it should apply to all councillors.
Dr JT Delport stated that they could get a situation where they would have a one member party in a ward, who sits there as a party member, there was no difference between that party and an independent.
Adv HC Schmidt (DP) stated that, taken to its fullest extent, only ward councillors should be allowed to cross and not the PR councillors, if that was going to be the only way in which they could distinguish between PR councillors and ward councillors.
The Chair stated that the Constitution was based on proportionality. With the PR councillors and the ward councillors there were different ways of choosing the people on the list. That is why the 10% was worked out on the basis of proportionality and the ward system.
A representative from SALGA stated that they supported the rationale that 10% should apply to the PR councillors and the ward councillors together. Though, with the introduction of the Municipal Structures Act the distinction between the PR and ward councillor would be done away with.
The Chair then stated that they would now move onto the issue of subdivision and merger of the parties both at the national and local level (subsection 4). A percentage would not be required for merger, but there was some uncertainty with subdivision. Perhaps if a party split up into one or two groups then they would require the 10%.
He therefore suggested that they pass a resolution in the Committee to state that the two Departments investigate the possibility of parties subdividing, because the Constitution provided for it but the legislation did not. There should be no subdivision until this had been amended accordingly.
Dr Delport stated that they did not want a situation where a person crossed to a party and then found that the party was not registered and there was there the question as to the validity of the seat. A person would then be forced to join a registered party. He asked whether they could not have a provision stating that a party that had come into existence would be seen to have been there, and should merely comply with the provisions of the IEC.
A Member stated that the way in which the provision on subdivision was worded implied that, for instance, a percentage of party X could break away and form party Y. This was provided for in the Constitution but it was different from walking over to another party because a new party was actually being formed.
The Chair stated that they were not moving across under subdivision, but were moving across under the list. He stated that if one crossed to a new party he was worried about comments that stated that the Act did not provide for it, but the Constitution would prevail if the Act did not provide for it. Therefore, if they were subdividing to form a non-existing party legally they would be entitled to do so because the Constitution provided for it. He therefore, felt that the IEC should look into this and do something about it, if necessary introduce legislation to amend it.
A Member asked whether it was not possible to bill in what they meant by subdivision into the legislature.
Ms Camerer said it was made to seem like a person in the legislature or National Assembly could actually join a party and sit as a party member.
The Chair stated that technically that was possible.
The Chair stated that Subsection 2 be a way of getting around subsection 4. Should they therefore include this provision on subdivision?
Ms Borman stated that she felt it applied here with the 10%. She stated that there would be a political swing. As regards subdividing a party could split the 10% into two or three parties. Should they not build in the 10% if a party is subdividing, because the manner in which they were saying it now made it all a mockery.
The Chair stated that if they felt that there was a necessity for a concept of subdivision, they would have to spell out more clearly what they meant. The Act implied that a group from a party could leave one party and form another. If they left it like that it created something of a constitutional effect. Alternatively they could amend the legislation that involves political parties. Though this could be difficult as it would necessitate involving the Department of Home Affairs and this would mean a political procedure. Their option was therefore, to leave it in and expand on what it meant or remove it. He would therefore, ask the parties to make a political decision on this, bearing in mind that subdivision did not add value or new meaning here and there was therefore, no need to keep it.
Mr Carrim reiterated that if the word was not adding anything new they should forget it. The reason why subdivision must be given consideration implied that ideological differences could occur, so personally he felt that they should look at it carefully, as it had sensitive underpinnings to it.
The Chair stated that if they were to keep subdivision it would have to be if the members of subdivision leaving the regional party form not less than 10%.
It was stated that there was no problem with the existing electoral legislation what potentially could give rise to problems would be how they had registered .The possible deficiency would be the need to investigate the need for mid term registration of a completely new entity.
The Chair stated that as regards subsection 5 on frequency these being as discussed once in the five years, twice in the five years or thrice in the three years.
Ms Camerer asked the twelve months before the next election would be determined.
The Chair stated that it prohibited crossing within that period, in effect saying that there would be no crossing within the last year, thus creating a constitutional prohibition.
Adv. Schmidt (DP) stated that the mere existence of this highly superficial provision forced to a certain degree the necessity to do away with the 10% requirement.
The Chair stated that if they provided for a transitional agreement that provided for threshold then they would not need this provision. The protection stopped you from disciplining people in that period, but if there was a suspicion that someone was going to walk he could be replaced from the list within the 15-day period. It was the party who could not do anything to you during this 15-day period, but the legal system could take its course against you.
The Chair stated that in subsection 6(b) the fourteen days should be seven days as this was not an election, the list could be ready within seven days. This being seven days after the fifteen day period, after the window has expired one would know within seven days who was on the new list. The list would then replace every other list that existed. He felt that there must be wording stating that there would now be a new list replacing all the other lists that may have existed. He had realised that nowhere in this legislation was there a provision that protected the people who had crossed the floor, nowhere in the legislation was it stated that the people who crossed should be included in the list.
This was part of the confusion that applied to the list system. In practise there was only one party list, but for the system to exist there were two lists, though only one party list. This was what had been crafted here (a) refers to the party list (b) was the membership list of the legislature. He agreed that there should be protection, but for how long?
According to the Chair, the member who had crossed must at least be on the first list.
The meeting was adjourned.