Constitution of Republic of South Africa Fourth Amendment Bill (floor crossing): briefing

Constitution of RSA Fourth Amendment Bill
Mr J De Lange (Department of Justice) noted the tabling of the Constitution of RSA Fourth Amendment Bill [B69-2002] on 12 November 2002. He said that the object of this Bill is to allow members of National Parliament or Provincial Parliament to change parties without fear of losing their seats in the Parliament. It is also another object of the Bill to allow political parties to merge or subdivide as they pleases without losing their political status in Parliament. He noted that a few minor changes had been made since the initial draft Bill. Such changes can be seen in the Long Title, plus Clauses 1, 2, 4, 6 and 7 of the tabled Bill

The Chair noted that the Parliamentary rules require a Bill to be in circulation for a period of thirty days, after being introduced, before it can be passed by Parliament. As the Bill was introduced on 12 November 2002, its thirty day period would expire while the Parliament is in recess. Therefore the deliberations will have to be deferred until next year.

The Committee accepted the above proposition.

The Chair noted that the deeming part of the provision contained in Item 4(4) of Schedule 6B of contained in Clause 6 of the draft Bill has been left out of the tabled Bill. He also noted that the date in Item 6(3) of Schedule 6B (as contained in Clause 6 of the Bill) had been changed from 22 October 2002 to 20 June 2002. He asked what had led to these changes?

Mr O Kellner (State Law Advisor) responded that since the Court had given its judgement regarding the crossing of floor legislation on 20 June 2002, from that date no Member of Parliament could be labouring under the belief that the Act of Parliament with to regard to crossing the floor was legal.

Various committee members were concerned with the provisions of Item 6(3) of Schedule 6B (as contained in Clause 6). Noting their concern, the Chair asked Mr Kellner what would be the effect of this provision and whether it would have retrospective application.

Mr Kellner replied that if a person's rights are infringed then from a point of equity and in line with the Constitution it would be unacceptable to do so retrospectively. This means those who were removed from their office as the result of acting in terms of the law which they believed to be legal, would have to be restored to that office with retrospective effect. However, those who had been subsequently appointed to office as the result of this, would have to be removed. However the effect of their removal would not have a retrospective effect.

Ms S Camerer (NNP) noted that in terms of the provisions of Item 6(3), it is not clear whether this would have retrospective effect or not. She held that this should be stated clearly so that those who acted in good faith, believing their actions to be legal in terms of the law, could be protected.

The Chair pointed out that a full discussion on the Bill would take place next year and the members should prepared themselves accordingly. However, he did say that he held a different interpretation of the Bill from that of Ms Camerer. He believed that the wording of the Item 6(3), especially the words "is hereby restored to such membership with all rights and privileges attaching thereto" clearly intended the provision to apply retrospectively.

Mr J Delport (DP) said that the Committee should note that the Democratic Alliance would oppose this provision. However the real discussion and reasoning on this would have to wait for next year.

Mr S Swart (ACDP) also said that the Committee should note on record that the ACDP would oppose the inclusion of this provision.

Mr G Magwanishe (ANC) asked the South African law position on this matter and whether it has any precedents relating to retrospectivity. He also proposed that the Committee should seek advice from legal experts.

The Chairperson noted that the only prohibition on retrospective application of a provisions are those relating to criminal law. In terms of criminal law a criminal offence cannot be created with retrospective effect, although he noted that this is not blanket prohibition. He believed that it is premature for the Committee to seek expert opinion at this stage since the Court has not pronounced any decision on this matter.

Mr Kellner also noted that the prohibition on creating offences with retrospective effect on criminal matters was constitutionalised by the Constitution in Section 35(3)(l).

The Chairperson noted that there were no further questions or comments. He reminded the Department of Justice to consult with the Department of Provincial and Local Government when refining the Bill. He thereafter thanked all committee members for their co-operation, dedication and loyalty throughout the year. He acknowledged that at times members would vehemently differ on major issues, but appreciated the fact that such difference did not hinder them from fully participating in the discussions so as to ensure the production of good legislation at the end of the day.

He thanked the committee secretariat team for their dedication in serving the Committee. He extended his great appreciation to the Department of Justice for the hard work, professionalism and availability whenever the Committee needed assistance.

He thanked the monitoring groups, especially the likes of PMG and other media organisations, for their availability and ensuring that the general public is informed of the happenings in Parliament since that has been crucial to the success of the Committee over the years.

The meeting was adjourned.