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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
4 February 2003
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA FOURTH AMENDMENT BILL: BRIEFINGS
Documents handed out:
Legislature of Limpopo submission (Appendix 1)
Eastern Cape Legislature submission (Appendix 2)
Ms Lilley submission (Appendix 3)
Proposed Amendments to the Constitution Fourth Amendment Bill
Constitution of RSA Fourth Amendment Bill [B69-2002]
A member of the public made a submission in which she strongly opposed the Bill. She further proposed an inclusion of the general public in parliamentary processes, especially when existing legislation is changed or new legislation is proposed.
The Chair noted that when the submissions were received by the Committee the working amendments to the Bill, as at 4 February 2003 were not yet in place. He asked presenters to take note of the changes in their submissions.
Legislature of Limpopo submission
Mr R Mashaba noted that the Legislature considered the Bill in its entirety after receiving the report of its Portfolio Committee. The ACDP and DP reserved their comments during the Committee's deliberations on the Bill and expressed them in the Legislature. However the Legislature decided to support the Bill as recommended by the Committee, with the exception of the UDM, ACDP and DP who expressed their reservations on the Bill. He noted that the Legislature did not have the opportunity to consider the new amendments, the deletion of item 6(3). But he did not foresee any objections since the deletion is in line with the Constitutional Court ruling.
The Chair also noted that the Constitutional Court made its ruling on the Bill and the problem was only around item 6(3), which has been amended.
Eastern Cape Legislature submission
Mr S Gqobana noted that the Eastern Cape Legislature, through the ANC, NNP and PAC, took a resolution to support the principles contained in the draft Bill as it is. Although the DP supported the Bill in principle it objected to the retrospective application provision. The UDM, on the other hand, expressed its reservations to the principles contained in the draft Bill. There is no basis for the Legislature to oppose the new amended version of the Bill.
Mr M Mzizi (IFP) asked whether the Legislature took into account, when taking its resolution, that the people did not vote for the individual but for the party. Where is the moral in the resolution?
Mr Gqobana responded that since all parties were given an ample time to consider the Bill and its effect surely they must have taken into account all the moral issues involved. The evidence would be found in the UDM's argument throughout the process.
The Chairperson noted the importance of continual interactions between the Provincial Legislatures and the National Parliament.
Ms M Lilley submission
Ms M Lilley made a submission on the proposed amendments regarding floor crossing and public participation in the legislative process. As a member of the public, she strongly opposed the Bill since it undermines the hard fought democracy in SA. If the Bill becomes successful it would make a nuisance of, and invalidate, any vote that the public may cast in the future. Therefore the whole process is an abortion of democracy and is against good governance. She further proposed an inclusion of the general public in parliamentary processes, especially when existing legislation is changed or new legislation is proposed since they will also be affected by those changes or its introduction.
The Chair noted that the Committee always informed the public about any processes that it undertakes. This is done through media, NGO and academics, but he cannot insist on any newspaper publishing such notices or for anyone to be present if they cannot. There is also a financial problem involved since it would be impossible for Parliament to transport everyone to Committees' public hearings.
Mr J Delport (DP) noted that everything has advantages and disadvantages. While it might be considered immoral for any Member to cross the floor on the one hand, on the other hand it might proved to be advantageous as that would enable the Member to better outline voters interest on another party's platform. The introduction of the Bill was therefore aimed at promoting good governance.
Mr Mzizi concurred with Ms Lilley and further noted that when such a Member crosses the floor they would be taking away people's votes to a party they did not vote for. However, abstaining from voting is not the solution but it would be advisable for voters to read and be acquainted with the policies of all parties before casting their votes.
The Chair advised Ms Lilley to get hold of the Constitutional Court decision, the court being the highest in the country, since the Constitutional Judges addressed the issue of morality and the law very well in the case. He also noted that this Bill would put South Africa on par with the world since this practice is conducted wordwide.
Briefing on the Constitution Fourth Amendment Bill
Mr Johann de Lange: Department of Justice and Constitutional Development, noted that the changes made in the new working draft of the Bill meant that any reference to Schedule B would now mean Schedule A. These changes would put the Bill on par with the Local Government Act.
Mr Delport said that since the retrospectivity provision has been deleted then the DP would support the principles embodied in the Bill. However, he noted that the fifteen day period proposed in the Bill is too long and a shorter period should be considered.
The Chair concurred with him. However, he noted that this would be the first time South Africa has a provision to this effect. If it proved to be a burdensome period then the Committee might consider it in the future.
Mr Mzizi also noted that, notwithstanding his support for the deletion of the retrospective provision, it is still the general public who is voting and therefore it is immoral for any Member to cross the floor with people's votes.
Mr S Swart (ACDP) noted that his party is still against the principle of floor crossing contained in the Bill.
Mr J Maseka (UDM) said that although his party accepts the decision of the Constitutional Court, it still reserves its views on the Bill. It should be understood that UDM does not necessarily oppose the Bill per se. But it is against the manner in which the Bill was introduced since it feels that the public should have been made aware of it before casting their votes.
Ms S Camerer (NNP) said that her party supports the principle of the Bill and also welcomes the deletion of the retrospectivity provision.
The Chair noted that South Africa is a democratic country and as such everyone is entitled to their opinions. He noted that the Committee supports the deletion of item 6(3) as it would bring legal certainty on the Bill both on the issue of constitutionality and desirability. Therefore this puts the Bill in line with the provisions of Section 1 of the Constitution. The Committee would vote on the Bill on Wednesday, 18 February.
Adv H Schmidt (DP) noted that since the Committee would be voting on the Bill in their next meeting it should be noted that his party would raise an objection on the fifteen days period.
The Chair noted that DP is free to move for an amendment on any issue and should therefore bring its proposed amendments in the next meeting.
The meeting was adjourned.
PRESENTATION BY THE LEGISLATURE OF LIMPOPO
The Constitution of the Republic of South Africa Fourth Amendment Bill, 2002 was referred to the Legislature of Limpopo by the Minister of Justice and Constitutional Development. The Legislature further referred the Bill to the Portfolio Committee on Safety, Security and Provincial Administration for
consideration and report back to the Legislature.
2. THE BILL
The Bill seeks to amend the Constitution of the Republic of South Africa 1996, in order to enable a member of the National Assembly or a Provincial Legislature to become a member of another party whilst retaining membership of the National Assembly or that Provincial Legislature; to enable an existing party to merge with another party; or to subdivide into more than one party; or to subdivide and any one of the subdivisions to merge with another party, whilst allowing a member of a Legislature affected by such changes to retain membership of that Legislature and to provide for matters connected therewith.
3. CONSIDERATION OF THE BILL
The Committee met on 24 October 2002 to consider the Bill. The Legislature's Legal Services briefed the Committee about the implication the Bill will have on the Province. The Committee supported the Bill in its entirety
4. MINORITY VIEWS ON THE BILL
ACDP and DP reserved their comments during the Committee's deliberations and expressed their views regarding the Bill in the Legislature.
The Committee recommended that the Bill be accepted without further amendments and that the Minister take the process forward by introducing the Bill in National Parliament.
6. DEBATE ON THE REPORT
The report of the Committee was debated in the Legislature and the majority supported the adoption of the committee report as a report of the Legislature with the exception of the following minority parties who expressed their reservations on the Bill;
UDM, ACDP and the DP.
7. RESOLUTION OF THE LEGISLATURE
The Legislature adopted the report of the Committee on the Bill and forwarded the resolution to the Minister of Justice and Constitutional Development in terms of Section 74(5)(b) of the Constitution Act 1996 (Act no. 10 of I 996).
VIEWS OF THE EASTERN CAPE LEGISLATURE
On Thursday, 31 October 20()2, the Legislature of the Eastern Cape considered and debated the draft Fourth Constitution Amendment Bill to Allow Members to Retain Membership of the National Assembly or Provincial Legislatures After Change of Party Membership in order to arrive at a view for submission to the Minister of Justice in terms of section 74 (5) of the Constitution.
In view of the fact that the Bill was debated in the House and resolution taken that the bill be supported, it is necessary to briefly set out the views of the different political parties, represented in the Legislature.
2 VIEWS OF THE AFRICAN NATIONAL CONGRESS
The views of the African National Congress of the Eastern Cape were presented by the Hon Mr S H Gqobana, Chief Whip, the Hon Mr M Mpahlwa, a Member of the Legislature, and the Hon Mr E Godongwana, MEC for Finance, Economic Affairs, Environment & Tourism
The ANC supported the principles contained in the draft bill
The views put forward were as follows, and I quote from the Daily Hansard:
Mr S H GQOBANA: "The ANC's attitude towards political realignment is informed by its vision of fundamentally transforming South Africa for the better As a result of the split in the DA, the Minister of Justice and Constitutional Development introduced four Bills to Parliament in which we have participated as this institution in terms of giving them our support. These Acts were challenged by the UDM in the Constitutional Court. The Constitutional Court found three Acts to be constitutionally correct. The Act dealing with loss or retention of membership of national and provincial legislatures was found to be in valid and inconsistent with the Constitution, purely on a procedural defect.
This Bill is intended to give members of Parliament and members of Provincial Legislatures who no longer share the same views and objectives as their parties the opportunity to move without losing their seat. The ANC therefore supports the principle of the Bill, that of allowing members of the Provincial Legislature and MP's to move from their original parties to parties of their choice."
Mr M MPAHLWA: "The truth of the matter is that voters continually change their political allegiance on the basis of their own experiences. As a matter of fact, voters change their political allegiance on a daily basis. And every time voters hear that their political party tried to bribe members from other parties with huge sums they change their allegiance from that party.
To suggest that political representatives must wait for five years and ignore this reality is ludicrous. The Bill seeks to create an environment in which there can be a n orderly movement of public representatives who continuously examine their political convictions, taking into account the sentiments of their followers.
In conclusion, this Bill is accepted by the ANC"
The MEC RESPONSIBLE FOR FINANCE, ECONOMIC, AFFAIRS,
ENVIRONMENT AND TOURISM: "Mr Speaker one has to agree with the Hon
Mkabile that floor crossing is a hallmark of any democratic system worldwide.
That is agreed. I think we want to agree with Hon Mkabile on that score".
"We, as a party, move from a vision of creating a non-racial society in South Africa. That is where we are headed. We also realise that that project is not a day's project - because apartheid has created divisions and wounds. In creating a new society we need a healing process. As part of that project we accept that we have to take the objective conditions into account. We agree with Hon Nash that South Africa needs people who are ready for change. it is only those people who have a mindset that is prepared to change who will survive in the South African political landscape.
Retreating to the laager is not a solution. I agree with the point of departure of the Hon Nash. The laager mentality, as I have indicated, feeds on those who want to destroy rather than build.
The ANC supports the process to correct was is basically a procedural defect."
3 VIEWS OF THE DEMOCRATIC PARTY
The views of the Democratic Party of the Eastern Cape were presented by the Hon Mr R A P Trollip, the Eastern Cape leader of the party.
The Democratic Party supported the principles contained in the d raft bill, but was opposed to the retrospective effect thereof. quote from the Daily Hansard transcript:
"In conclusion, the DA supports the proposal that floor crossing be allowed at all levels of Government to complete the exercise so that any members who might still be in our ranks who wish to succumb to the ANC can be exorcised. However, we must fundamentally lodge our total objection to the legislation being retrospective"
4 VIEWS OF THE NEW NATIONAL PARTY
The views of the New National Party of the Eastern Cape were presented by Ms A M C Nash, the leader of that party in the Eastern Cape Legislature.
The New National P arty supported the principles contained in the draft bill. quote from the Daily Hansard transcript:
"There are many aspects that one can bring into this debate, but the NNP has decided to stick to the constitutionality thereof, because that is what are dealing with. If this matter was ruled unconstitutional then we would accept it just like any good patriot would. However it has been approved, apart from certain technicalities. Patriotism, Mr Speaker, is an essential point of departure for anybody who wants to stay in this country."
"With those few words I would like to say that the NNP will support this Bill."
5 VIEWS OF THE PAN AFRICANIST CONGRESS
The views of the Pan Africanist Congress of the Eastern Cape were presented by Mr Z Mkabile, the Eastern Cape leader of that party.
The Pan Africanist Congress supported the principles contained in the draft bill. I quote from the Daily Hansard transcript:
"On a serious note, the changing of political parties and the crossing of floors is something that happens the world over in all democracies. So I do not understand why people are so hot under the collar with regard to this issue.
I think it is an indication of the maturity of our democracy."
6 VIEWS OF THE UNITED DEMOCRATIC MOVEMENT
The views of the United Democratic Movement of the Eastern Cape were presented by Ms W H Nel, the leader of that party in the Eastern Cape Legislature.
The United Democratic Movement did not support the principles contained in the draft bill. I quote from the Daily Hansard transcript:
"The UDM cannot support the proposed legislation and did not support the previous legislation allowing the public representatives to cross the floor It ignores the choice of voters as expressed in the previous elections. The previous election actually said what the public wanted. Allowing public representatives to cross the floor before an electoral system with constituency elements has been implemented is irresponsible and undemocratic. It is undemocratic unless it can be honestly claimed and proved that a public representative crossing the floor has the support of his or her voters."
7 RESOLUTION OF THE LEGISLATURE
At the end of the debate Mr S H GQOBANA moved the following resolution:
"Mr Speaker, I move that the Speaker communicates to the Hon Minister of Justice the view of the Eastern Cape Legislature that it is in support of the principles contained in the draft Fourth Constitution Amendment Bill. And That the Speaker further communicate to the Minister that this Legislature requests the Hon Minister to ensure that the details contained in the Bill that is introduced in Parliament are such that it would bring finality to this issue once and for all."
The resolution was agreed to by the Legislature without a division.
8 COMMUNICATION OF LEGISLATURE VIEWS
The views of the legislature were duly communicated to the Hon Minister of Justice in terms of section 74(5) of the Constitution as per the attached letter.
S H GQOBANA
CHIEF WHIP OF THE ANC
PROVINCE OF THE EASTERN CAPE
22 JANUARY 2003
From: Marilyn Lilley
To: Minister Of Justice
8th November 2002
A. The proposed amendments regarding floor crossing
B. Public participation in the legislative process
A. I strongly oppose any legislation that allows for floor crossings, as this undermines our new and hard fought for democracy, and ultimately invalidates any vote that I and other voters may make in future elections if politicians on all levels can cross to other parties. This will make a nonsense of voting. I believe that my future vote will not count for anything, and in fact will be useless. I, and I am sure many others, will not even be bothered to vote in the future if floor crossing on all levels is allowed.
In my opinion floor crossing is unconstitutional, and undermines democracy. My vote is effectively taken away from me. I strongly oppose floor crossing on all three tiers of government
I feel that comments like mine may be a waste of time, as it appears to me that arguments and comments against amendments allowing floor crossing will carry no weight as several constitutional judges and many politicians appear to be totally in favour of floor crossings. I feel that the go ahead will be given, despite opposition and very good argument against introducing this amendment.
B. I am concerned that the public at large are often not informed sufficiently regarding proposed new legislation or changes to existing legislation, resulting in many people not being made aware of legislation that affects them or being encouraged to make input. I only became aware of the fact that public comment on this proposed amendments could be made via a brief newspaper article [not an advert] which did not give any contact details nor a very specific deadline.
Many people in SA do not buy newspapers, and live in rural areas where other means of communication becomes necessary to keep the public informed.
I am aware that current legislation enables the public to be informed on various matters. I would appreciate it if the following questions could be answered.
1. I would like to know the total number of comments received from the public,
2. and also the number of comments received from politicians/political parties regarding this amendment.
3. Of the comments received from the public, how many supported, how many were against floor crossing?
4. Of the total number of comments received from politicians/political parties, how many were for and against this proposed amendment?
5. How was the information relayed to the public informing them that they could comment on these amendments, giving all contact details? [ I had to phone the Ministry of Justice and ask for all the contact details]
6. Which newspapers/publications did adverts appear in, on what dates?
7. How many adverts in total were placed?
8. Were there any radio adverts from the Ministry of Justice informing the public especially in rural areas that they could submit comments, including contact details?
9. What public education occurred, if any, regarding this proposed amendment including encouraging the public to make comments, for or against it ?
I feel that the public is largely excluded from making comments to proposed legislation in general as they are not made aware of nor encouraged and assisted by various means to participate in the legislative process, a right hard won and a cornerstone of democracy.