Constitution 14h Amendment Bill, Constitution 15th Amendment Bill & General Laws Amendment Bill: public hearings

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Justice and Correctional Services

27 July 2008
Chairperson: Mr Y Carrim (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development briefed the Committee on the Bills abolishing floor crossing, namely the Constitution Fourteenth Amendment Bill, Constitution Fifteenth Amendment Bill and General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Bill. The floor crossing legislation had allowed elected representatives (in the National Assembly (NA), provincial legislatures and municipal councils) to change party allegiance without losing their seats, and had also sanctioned existing political parties to merge with another party and subdivide into more than one party. The general consensus of parties was that such legislation, although warranted at the time of its introduction, was no longer supportable and these Bills thus sought to give effect to its abolition. The Committee discussed the submissions made by the Electoral Commission relating to party Funding. Members asked questions about ward councillors, the repeal of section 16A of the Electoral Commission Act and the rationale for the division of the two Constitutional Amendment Bills.

The Southern African Catholics Bishops Conference submitted that floor crossing had undermined the Constitutional principles of participatory and representative democracy and welcomed the Bills. It also believed that the current electoral system needed to be adapted and that some form of direct accountability between the electorate and the elected representative was required. The Chairperson asked whether there was scientific evidence to support the claim that there was a groundswell of opinion in favour of changing the country’s electoral system.

The Department guided the Committee clause-by-clause through the provisions of both Constitutional Amendment Bills. Apart from one minor amendment, the Committee indicated its support for both, and would formally adopt them at a later meeting. The Department also outlined the provisions of the General Laws Amendment Bill. The Committee provisionally indicated support for the majority of provisions and flagged others for further consideration.

Meeting report

 

Opening Remarks by the Chairperson
The Chairperson expressed surprise that only two requests to make oral submissions were given to the Committee.

Mr J Jeffery (ANC) noted that the Institute for Democracy in South Africa (IDASA) were scheduled to present their oral submission to the Committee on the following day. He questioned whether there was any merit in listening to their submission, given that they were in agreement with the Bills, and would therefore add no value to the debate.

The Chairperson replied that parliament had a responsibility to engage with the public and particularly with an important institution like IDASA, which had a vested stake in the matter.

Mr S Swart (ACDP) agreed with the Chairperson’s stance on this matter.

Briefing by the Department of Justice (DoJ or the Department) regarding the floor crossing legislation
Mr Johan Labuschagne, Director: Legal Drafting, DoJ, indicated that parliament had previously passed legislation that facilitated floor-crossing- to cater for the political circumstances that existed in 2002/03. That legislation had allowed elected representatives (in the National Assembly (NA), provincial legislatures and municipal councils) to change party allegiance without losing their seats. It also sanctioned existing political parties to merge with another party and subdivide into more than one party. More recently, it was acknowledged that “the political terrain which necessitated floor-crossing had changed”. In light of the prevailing sentiment, a decision was taken to abolish floor-crossing legislation at every level of government and revert to the position that existed prior to 2002/03. The Department tabled three Bills, namely the Constitution Fourteenth Amendment Bill, Constitution Fifteenth Amendment Bill and the General Laws Amendment (GLA) Bill to give effect to that resolution. All three Bills must be passed and implemented before the next floor-crossing window was opened on 1 September 2009.

In addition, Mr Labuschagne stated that all three Bill were published in the national Gazette for public comment as required by section 154(2) of the Constitution. The two Constitution Amendment Bills, which were submitted to all the provincial legislatures for their views, were subjected to different procedures. The Constitution Fourteenth Amendment Bill needed to be approved by both the NCOP and the NA, while the Constitution Fifteenth Amendment Bill only required the concurrence of the latter house. The GLA Bill required the endorsement of both Houses.

Furthermore, he indicated that the GLA Bill amended six pieces of legislation, which were administered by three different Ministers and affected other departments. Consequently, he suggested that the three relevant portfolio committees jointly participate in the deliberations on that Bill. Lastly, he announced that all the submissions received were supportive of the decision to abolish the floor crossing legislation.

Discussion
Adv L Joubert (DA) voiced his party’s support for the Bills. In addition, he enquired whether the Department had considered a different procedure for the election of ward councillors.

Mr Labuschagne replied that no special procedure was considered, and that the intention was for ward councillors to be elected in the same manner as they were prior to 2002.

Adv Joubert probed whether the Department had considered introducing a safety mechanism to cater for an exceptional situation where floor crossing would be needed.

The Chairperson asked whether the Member was referring to some limited form of floor crossing.

Adv Joubert responded in the affirmative.

Mr Labuschagne stated that the Department had not considered such a mechanism because the decision had been taken to abolish floor crossing in its entirety.

Ms S Seaton (IFP) expressed her party’s “wholehearted” support for the Bills. She declared that floor crossing was immoral and never foresaw a situation where it would be acceptable.

Mr Swart addressed two issues. Firstly, he mentioned that his party had always opposed floor crossing and therefore welcomed the Bills. Secondly, he found it regrettable that the two Constitutional Amendment Bills were not combined into one Bill.
 
In respect of the first issue, Mr Jeffery recalled that only the IFP had consistently opposed floor crossing, whereas the ACDP had accepted some limited form of it in the initial debate on this matter.

In response to the second issue, Mr Labuschagne clarified that section 74(3) of the Constitution and the Rules of Parliament required that there be a separation because the processes that needed to be followed for the two Bills were different. Also, he added that a Constitutional Amendment Bill, which needed to be passed by both Houses, could not contain amendments that needed only to be passed by one House.

Mr Jeffery observed that no objections were raised regarding the two Constitutional Amendment Bills. He identified that key inputs were made by the Electoral Commission (EC), regarding issues relating to party funding, in the GLA Bill. Accordingly, he recommended that the EC be approached to participate in the hearings so that the Committee could engage with it on these submissions.

The Chairperson instructed the Committee Secretary to invite the EC to attend the hearings on the following day.

Mr Jeffery examined two additional issues. Firstly, he interrogated why section 16A of the Electoral Commission Act, which referred to name changes, had been abolished. Secondly, he enquired as to the Department’s response to the EC’s input regarding party funding.

In respect of the first issue, Mr Labuschagne summarised that in item 23A of Schedule 2 of the interim Constitution, only a small sub-item had dealt with the change of name of political parties, while all the other sub-items had dealt with floor-crossing. As a result, the Department had mistakenly interpreted that the entire item related to floor crossing. The EC had since pointed out that this was not the case and that parties should be allowed to change their names at any time. After having considered the issue, the Department agreed with that viewpoint and was not opposed to deleting clause 1 of the GLA Bill.

The Committee endorsed the position that clause 1 of the GLA Bill should be deleted and section 16A of the Electoral Commission Act be retained.

In respect of the funding matter, Mr Labuschagne explained that the Public Funding of Represented Political Parties (Funding) Act made provision for three scenarios where a party had to repay unspent balances. Firstly, section 5(4) stipulated that political parties must repay unspent balances when they ceased to qualify for funding. Secondly, section 9(1) specified that at the end of a financial year, a political party must not carry over more than 50% of the original allocation. Thirdly, section 9(3) and (4) mandated all political parties to repay their unspent balances before a general election. The EC was of the view that the latter two scenarios served no purpose and should be abolished. As far as the first scenario was concerned, the EC advanced that a party should be given additional time (six months) to close its books and records of accounts and then only repay the outstanding balance. It further argued that the provisions in the new section 6B (clause 5 of the GLA Bill) were too expensive and cumbersome.

Mr Labuschagne stated that the Department’s view on these points was that the new Section 6B catered for the first and third scenarios. He stressed that the Bills sought to give effect to the resolutions that were adopted by the Committee in 2005. He concluded that it was up to the Committee to decide whether to retain the current situation or go the route that it had proposed in 2005.

Mr Jeffery stated he was having some difficulty following the discussion. He maintained that the Committee needed to engage with EC, particularly in light of the practical issues that they were raising.

The Chairperson reminded Members about the Committee’s busy legislative programme for the current term. For that reason, he hinted that the Bills could be deferred until after the elections, especially if they were complex and there was insufficient time to process them.

Mr Jeffery proposed that the Committee finalise the two Constitutional Amendment Bills in the current week and postpone the GLA Bill until September.

The Chairperson advised that the Committee should sit jointly with the Portfolio Committees on Home Affairs and Provincial and Local Government before they voted on the Bills in order to make sure that sufficient consensus was reached.

Mr Jeffery remarked that the Speaker had referred the Bills to this Committee, and therefore there was no obligation to formally sit with the other committees. However, given the time constraints, he suggested that the Chairperson should, at least for the two Constitutional Amendment Bills, contact the Chairpersons of the other committees and establish what they wanted to do.

The Chairperson agreed with this recommendation.

The Chairperson affirmed that the country’s electoral system should be reviewed to ensure greater accountability. Lastly, he directed the legal experts to check that all the consequential amendments have been effected.

Southern African Catholic Bishops’ Conference (SACBC) Briefing
Adv Mike Pothier, Research Director: Parliamentary Liaison Office, SACBC, expressed disquiet that only two civil society organisations had accepted the invitation to address the Committee, particularly given the level of opposition that existed when the legislation was first introduced.

The SACBC contended that floor crossing undermined the Constitutional principles of participatory and representative democracy. Citizens who had exercised their right to vote, and who had carefully chosen the party they wished to support, had to endure the erosion of their will and mandate, and watch the undignified scrambling for positions that took place during every floor crossing window period. It was reasoned that this unedifying practice encouraged political expediency amongst political representatives and distrust amongst the electorate. A further criticism was that at both national and provincial levels, the closed Proportional Representation (PR) system did not allow the electorate to hold individuals accountable for their actions.

The SACBC maintained that the discussion on floor crossing should be augmented by a greater debate regarding electoral reform in South Africa. A system of pure PR was fitting during the country’s early years of democracy. However, there was a growing realisation that this system needed to be adapted and that some form of direct accountability between the electorate and the elected representative was required.

In conclusion, he congratulated government for responding to the “groundswell of opposition”, and also advised the Committee to seriously consider changing the current electoral system.

Discussion
Adv Swart agreed that the issue of electoral reform need to be examined further and requested the presenter to assist the Committee with a report in that regard.

Mr Jeffery contended that the issue of electoral systems was the subject of an ongoing debate because there was no perfect system. He stated that even the mixed system at municipal level had its own problems.

The Chairperson asked whether the SACBC had any scientific evidence to buttress its comment that there was a groundswell of opinion in favour of changing the country’s electoral system.

Adv Pothier replied that he did not have any empirical data to support his comment, but nevertheless maintained that the electorate were generally dissatisfied with the current system. He added that this assessment was shared by the majority of civil society organisations.

The Chairperson claimed that this view was only advanced by elites within the NGO sector, even though it was not correct. He contended that people were more concerned about issues of service delivery than about the technical nature of the electoral system. Notwithstanding this, he conceded that greater debate was needed around this issue and that Parliament should do more to ensure that parliamentarians were accountable.

Constitution Fourteenth Amendment Bill: Department of Justice briefing
Clauses1-5
Mr Labuschagne explained that this Bill sought to abolish floor crossing in the National Assembly and provincial legislature. This objective was achieved by clauses 1 to 4 and 5 (a), which sought to effect consequential amendments to section 61, 62, 105 and 106, and Part B of Schedule 3 of the Constitution. Although not related to floor crossing, clause 5(b) amended Part B, Schedule 3 of the Constitution, so as to further regulate the determination of provincial party participation in provincial delegations to the National Council of Provinces.

Adv Swart voiced support for the insertion in clause 5(b), and stated that it represented an improvement from the previous situation. He asked about the definition of the term “consistent with democracy” contained in that provision.

Mr Labuschagne explained that the term could be interpreted in different ways and that it was up to the provincial legislatures to make such a determination.

The Chairperson found it unacceptable that each provincial legislature could define the term in a different manner, and proposed that a policy be developed on this matter.

Clause 6
Mr Labuschagne then summarised the contents of clause 6, which repealed Schedule 6A of the Constitution (that regulated the retention of membership to the NA or a provincial legislature, after a change of party membership, mergers between parties, subdivision of parties and subdivision and merger of parties).

The Committee indicated its support for the Bill, but would vote on it formally at a later meeting.

Constitution Fifteenth Amendment Bill: Department of Justice briefing
Clauses1-5
Mr Labuschagne highlighted that this Bill was intended to abolish floor crossing in Municipal Councils. This objective was achieved by clauses 1 to 3, which sought to effect consequential amendments to sections 46, 47 and 157 of the Constitution. Clause 4 was aimed at amending section 158 of the Constitution. Clause 5 sought to repeal Schedule 6B of the Constitution.

Members indicated their support for the provisions and would vote formally on the Bill at a later meeting.

General Laws Amendment Bill: Department of Justice briefing
Mr Labuschagne specified that the Bill contained consequential amendments to six national pieces of legislation emanating from amendments made to the Constitution Fourteenth and Constitution Fifteenth Amendment Bills. Also, it contained amendments that did not relate to floor crossing but that gave effect to a 2005 report of the Committee.

Clause 1
Clause 1 sought to repeal section 16A of the Electoral Commission Act, which enabled a political party to change its registered name.

The Chairperson recalled the Committee’s earlier comments regarding this clause and suggested that the Committee revisit it at a later stage.

Clause 2
Mr Labuschagne informed the Committee that part of the clause related to floor crossing whist the other part effected a consequential amendment to section 5(4) of the Funding Act.

The Committee was undecided about this clause.

Clause 3
Mr Labuschagne articulated that clause 3(a) sought to amend section 6(1) to make it clear that all political parties were accountable to the EC in respect of moneys allocated to them from the Fund. The purpose of clause 3 (b) was to substitute a reference to an obsolete Act of Parliament. Paragraph (c) inserted a new subsection (5A) in section 6, that would empower the EC to appoint an auditor under certain circumstances.

Mr Labuschagne noted the EC’s view that clause 3(c) was unwarranted because it already had the power to appoint an auditor under any circumstances.

Mr Swart pointed out that the EC had received a qualified audit in the previous year because certain political parties, particularly newly-formed ones, did not audit their funds properly or did not do so on time. As a result, he stated that it would be useful to hear from the EC about why it did not want the provision because it gave the Commission additional oversight powers over political parties that did not comply with stringent audit requirements.

The Chairperson concurred with Mr Swart.

The Committee indicated support for clauses 3 (a) and 3 (b). Clause 3 (c) was flagged for further discussion.

Clause 4
Mr Labuschagne noted that Clause 4 sought to repeal section 6A of the Funding Act, which regulated the repayment to the EC of the unspent balances of a political party who, after the window period for floor crossing, ceased to qualify for funding.

Members were satisfied with this provision.

Clause 5
Clause 5 addressed the three scenarios, contained in section 5 of the Funding Act, in which a political party had to repay to the EC the unspent balances of all moneys that had been allocated to it.

Mr Labuschagne disclosed that the EC was in favour of deleting the clause in its entirety.

Mr Jeffery remarked that he needed time to study the EC’s proposals regarding the funding of political parties.

Clause 6
Mr Labuschagne outlined that Section 9(3) and (4) of the Funding Act regulated the repayment to the EC of the unspent balances of all moneys that had been allocated to a political party if Parliament and every provincial legislature was dissolved. The proposed new section 6B(2) sought to regulate this matter and rendered the two subsections redundant.

The Committee did not finalise it views on this clause.

Clause 7
Mr Labuschagne indicated that the clause was intended to amend section 9A of the Funding Act to make certain offences applicable to accounting officers of political parties or leaders of political parties.

The Committee noted the EC’s rejection of the coupling of criminal offences with accounting and financial obligations. Equally, Mr Henrik du Toit’s submission was acknowledged and would be assured of further consideration.

Clauses 8 to11
Mr Labuschagne explained that clauses 8 and 9 effected consequential amendments to sections 9A and 10 of the Funding Act. Similarly, clause 10 sought to effect a consequential amendment to section 2 of the Determination of Delegates Act. Lastly, clause 11 sought to effect a consequential amendment to item 23 of Schedule 1A of the Electoral Act.

Members were satisfied with all the clauses and raised no objections.

Clauses 12, 14, 15, 16, 17, 19, 20 and 21
Mr Labuschagne explained that these clauses proposed consequential amendments to sections 26, 29, 62, 63 and 66, item 10 of Schedule 1 and item 4 of Schedule 2 of the Municipal Structures Act.

Clause 13
Mr Labuschagne clarified that the clause intended to amend section 27 of the Municipal Structures Act, which regulated the vacation of office of councillors.

The Committee provisionally accepted the clause.

Clause 18
Mr Labuschagne noted that this clause repealed sections 93A and 93B of the Municipal Structures Act, as those two sections would become redundant once floor crossing had been abolished.

Clauses 22 and 23
Mr Labuschagne mentioned that these clauses sought to repeal sections 12 and 13 of the Municipal Structures Act, as those two sections would become redundant once floor crossing had been abolished.

Clauses 24 and 25
The Committee agreed with the content of the clauses.

The Chairperson asked the legal experts and the researchers to make sure that all the cross-referencing was correct.

The meeting was adjourned.

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