Floor Crossing Legislation: public hearings & deliberations; Reform of Customary Law of Succession Bill: Department response to submissions

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Justice and Correctional Services

28 July 2008
Chairperson: Mr Y Carrim (ANC), Mr G Solomons (ANC) and Ms M Mahlawe (ANC)
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Meeting Summary

The Institute for Democracy in South Africa engaged the Committee on the floor crossing legislation. IDASA stated that South Africa’s electoral system was premised on proportional representation. Except in the ward component of the local government vote, South African citizens voted for parties and not individuals. When representatives defected from one party to another, they distorted the balance of representation dictated by citizens through the ballot box. Defection, moreover, was performed without recourse to the electorate who must wait up to four years to reassert accountability over the composition of the legislatures who governed them. Floor crossing thus attempted to address the shortcomings in the country’s electoral system. Unfortunately, the unintended consequences far outweighed the intended benefits of the system. Members debated the merits of IDASA’s submission as well as the country’s electoral system.

The Electoral Commission explained that the Public Funding of Represented Political Parties 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 them. 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 Commission 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 Commission 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 (in clause 5 of the GLA Bill) were too expensive and cumbersome. The Committee agreed on the principle that political parties should repay unspent public money. In addition, Members debated at length whether to retain the three scenarios provided for in the Funding Act.

The Committee continued their deliberations on the floor crossing legislation. Members informally accepted the Constitution Fourteenth and Constitution Fifteenth Amendment Bills. The Committee experienced problems in respect of the funding provisions in the General Laws Amendment Bill. A Subcommittee, which had been established to look at the issues, recommended that no changes should be made to the Funding Act unless there were consequential amendments to the abolition of floor crossing.

The Department of Justice and Constitutional Development introduced an amended version of the Reform of Customary Law of Succession and Regulation of Related Matters Bill, which incorporated the input received from the Committee and the Women’s Legal Centre. Members asked questions about the definition of specific words, the application of the Intestate Succession Act and wording used in the Bill. Significantly, the Committee rejected the amendment in clause 2, which sought to camouflage an ongoing customary practice.

Meeting report

IDASA submission
Mr Jonathan Faull, Researcher, IDASA, welcomed the opportunity to make a contribution to a very important debate relating to representation and accountability. In order to assess the legislation before the Committee it was important to reflect on the consequences of the legislation that was being dispensed with. The debate around floor crossing had largely been framed in official discourse by political imperatives. The system of floor crossing in the context of an electoral system premised on Proportional Representation (PR) has had the unintended effect of undermining the spirit of open, transparent, responsive, accountable and participatory democracy as required by the Constitution. The purpose and effect of floor crossing was to permit the defection of members from the party under whose aegis they were elected, as well as the merger and subdivision of political parties at all levels of government. Floor crossing was a feature of many established and developed democracies. But such an observation can not serve as a justification of the regime, as practised in South Africa.

South Africa’s electoral system was premised on proportional representation. Except in the ward component of the local government vote, South African citizens voted for parties and not individuals. When representatives defected from one party to another, they distorted the balance of representation dictated by citizens through the ballot box. Defection, moreover, was performed without recourse to the electorate who must wait up to four years to reassert accountability over the composition of the legislatures who governed them. Floor crossing thus attempted to address the shortcomings in the country’s electoral system. Unfortunately, the unintended consequences far outweighed the intended benefits of the system.

Discussion
Adv L Joubert (DA) found it interesting that, since 1910, all prominent political parties in the country, such as the South African party, the National Party, the Conservative Party and the Independent Democrats had their origins in floor crossing.

Mr Faull joked that the ANC, AZAPO and the PAC would disagree with the assessment of all prominent political parties. In addition, he stated that successful political parties generally had their roots within communities. Without grassroots support, whether inherited from a pre-existing structure, political parties have found it difficult to survive. Lastly, he contended that everything that happened prior to 1994 did not apply because it happened on a completely different electoral system and under an illegitimate regime.

Mr J Jeffery (ANC) noted that IDASA’s submission addressed the broader subject of electoral reform and not about the Bills that were before the Committee.

Mr Carrim criticised the submission made by IDASA, and maintained that it would not assist the Committee in processing the three pieces of legislation before them. He conceded that the scrapping of floor crossing prompted questions about the country’s electoral system. However, he dismissed the romantic notion that wards and constituencies were invariably more representative and democratic than Parliament and provincial legislatures. As a solution, he proposed that Parliament institute a system of rules for which MPs are held accountable in terms of their constituency work.

Mr Faull replied that without reflection on the repercussions of floor crossing, the debate on the current Bills before the Committee would be deficient. He conceded that the equation of constituencies with greater accountability was a romantic one and the report by the Electoral Task Team confirmed that electoral systems do not guarantee greater accountability or responsiveness. Other issues needed to be considered, such as party culture and rules within political parties. He noted that Parliament was already considering significant changes in the way constituencies were administered. Finally, he quoted data produced by Afrobarometer, which showed that South Africa ranked the lowest in a survey (of 11 African countries) on the question of whether they knew who their MPs were.

Ms Judith February, Manager: Political Information and Monitoring Services, IDASA, maintained that there was some merit in raising the larger issues of accountability and representation, and welcomed further engagement with the Committee.

Mr Carrim was adamant that the Committee would have preferred specific comments and proposals instead of general comments. Also, he announced that in the Committee’s Report on the Bills to Parliament, it would state that invariably the issue of the electoral system came to the fore while processing the Bills. He requested IDASA to assist the Committee by drawing up a report on how, given the current system (closed list system), MPs could be more accountable, both to their constituencies as well as Parliament itself.

Mr Carrim noted that the Committee had concluded the public hearings on the Bill.

By way of background Mr Jeffery noted that once floor crossing was abolished, there would be three situations in which the unspent balances of all moneys would have to be repaid to the Electoral Commission (EC) in terms of sections 5(4) and 9(1), (3) and (4) of the Public Funding of Represented Political Parties (the Funding Act) Act. Section 5(4) stipulated that political parties must repay unspent balances when they ceased to qualify for them. 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. He added that the Committee had wanted to engage with the EC on the basis of their proposal that each of the aforementioned situations should be reviewed.

Electoral Commission submission
Mr Fanie van der Merwe, Commissioner, Electoral Commission (EC), argued that there was no principle to support the provision in section 9(1) that a percentage limit may be prescribed on the amount of unspent balances of moneys that may be carried forward as a credit balance from one financial year to the next. It was therefore suggested that the proviso to this section be repealed. Since 1999, only in one instance did 1 party (in 2006) have to repay 50% of unspent moneys at the end of the financial year.

Section 9(3) and (4) placed an unnecessary burden on political parties to close their books, audit their record of accounts and pay unspent balances, all within 21 days before the date of a national and provincial election. In addition, there was no apparent valid principle underlying these provisions.
An analysis of the two previous elections found only two occasions where a party was obliged to, and did, repay unspent balances of moneys.

There was some justification for asking a party to repay unspent balances in terms of section 5(4). However, it was felt that the provision had failed to take into account the post-term party obligations in respect of office and employee expenses. In 2005, 8 parties “ceased to qualify” in terms of the section. This figure was reduced to 1 and again increased to 3 in 2006 and 2008 respectively.

Discussion
Noting the EC’s submission on section 9(3) and (4), Mr Jeffery found it telling that the Committee had not received a single submission from a political party stating that the provision was too onerous. He reasoned that it was not correct for the EC to be the watchdog for political parties. Lastly, he emphasised that parties had an obligation repay unspent public money.

In a similar vein, Adv C Johnson (ANC) pointed out that government departments, who also dealt with public funds, had to account for the moneys allocated to them, and that in the case of unspent funds, special permission was required from the National Treasury to carry it forward into the next financial year. Consequently, she enquired why the situation should be any different for political parties.

Ms S Seaton (IFP) accepted the principle that parties needed to be accountable. In addition, she acknowledged that no party had made an input on this issue. However, she believed that the EC raised some serious and valid concerns. Apart from the ruling party, all other parties discovered the election date only at the last minute, after they had already entered into contracts and commitments on various issues.  Lastly, she endorsed the EC’s position that parties should be held accountable, in terms of section 9(3) and (4), after the election date instead of 21 days before it - as in the Funding Act.

Mr van der Merwe commented that it would be difficult for parties to misuse the funds because they had to account for the moneys and have their books audited at the end of every financial year. In addition, the Funding Act prescribed what the moneys should and should not be used for. He stressed that political parties were funded in terms of a constitutional provision aimed at promoting multi-party democracy.

Mr Carrim complained that he was having difficulty understanding the issues.

Mr Carrim suggested that the Committee should agree on the principle that when a party ceased to exist, and after being afforded a reasonable time to meet their commitments, they should repay the public money. Secondly, he recommended that the Committee should agree to change the date (21 days) for the repayment of unspent balances before an election date.

Mr Jeffery expressed confusion about the 21 days requirement.

Mr Johan Labuschagne, Director: Legal Drafting, DoJ, clarified that there used to be two situations when a party had to make repayments of unspent balances within 21 days, namely when a party had ceased to qualify and also before an election date. Those instances had since been combined and included in the new section 6B (under clause 5 of GLA Bill).  In summary, he explained that the process was not limited to 21 days and went on for longer than that. Clause 5(3) stipulated that the accounting officer of the political party must within 14 days after the date on which a party has ceased to qualify or a legislative body is dissolved; close the books and record of accounts of that party. The subsequent clause instructed the accounting officer or leader of the party to then submit a statement to an auditor within one month after that process has been completed. The auditor must in turn submit his findings to the EC within two months. The Commission would then determine which percentage of the unspent balance had to be repaid, taking into account the existing legal obligations of political parties.

Mr Jeffery noted that the new process covered the earlier concern raised by Ms Seaton.

Mr Carrim addressed two issues. Firstly, he asked whether there was any problem in a party having to repay 50% of the unspent balance at the end of a financial year. Secondly, he asked whether the EC agreed with the principle that a party, which had ceased to qualify, should repay their unspent balances.

Mr van der Merwe confirmed that he had no problem with those two broad principles.

Mr Carrim countered that this statement contradicted his earlier submission. Additionally, he probed whether the EC was particularly worried about the ponderous process allowed for in the new section 6B (of clause 5 of the GLA Bill).

Mr van der Merwe believed that process was too cumbersome, involved and costly. He appealed to the Committee to retain the current process, which was much simpler and easier to manage.

Mr Jeffery stated that he was uncomfortable with the original 21 days provision and did not know what the rationale was for this. He disliked the idea that a party should suddenly close its books three weeks before an election. Also, he agreed that the new section 6B was cumbersome and lengthy. However, he believed that the steps were outlined in sequence and were easy to follow.

Mr B Magwanishe (ANC) and Mr Carrim agreed with the comments made by the previous speaker.

Mr Carrim appointed a subcommittee, spearheaded by Mr Jeffery, to consider section 6B and determine how it should be streamlined.

Deliberation of Bills
Mr Carrim indicated that the Committee would consider the floor crossing legislation and express an informal view on each one.

Constitution Fourteenth and Constitution Fifteenth Amendment Bill
Mr Carrim recalled that the Committee had informally accepted the two pieces of legislation in their previous deliberation on the matter.

Members accepted this statement and did not raise any issues.

General Laws Amendment Bill
Clause 1
The Committee rejected the clause and believed that section 16A of the Electoral Commission Act should be retained.

Clause 2
It was decided that the subcommittee would also deal with this clause because it made reference to the 21 days requirement for the repayment of unspent balances.

Clause 3
Mr Carrim sought clarity on the distinction between an official and an office-bearer. Also, he complained about the language used in the clause.

Mr van der Merwe explained that the former was a normal employee and latter an elected representative.

Adv Johnson recalled that the Committee had agreed to clauses 3(a) and (b), and that 3(c) had been flagged for further discussion with the EC.

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

Mr Carrim recalled that the Committee had decided to retain the clause to put pressure on political parties and to give the Commission additional oversight powers over them.

Mr van der Merwe did not have any problems with the provision, and indicated that he was simply stating that the Committee already had such powers.

Consensus was reached that the provision should be retained.

No further issues were raised.

Clause 4
The Committee did not oppose this provision.

Clause 5
Mr Carrim was unhappy with the current heading of the clause, and said that it should be simplified.

Mr Herman Smuts, Principal State Law Advisor, Office of the Chief State Law Advisor, gave an undertaking that he would look into this matter.

Mr Carrim strongly objected to the use of certain wording in the clause. He claimed that the language was archaic.

Mr Labuschagne explained that the Department had used the same language contained in pre-existing legislation.

It was decided that the subcommittee would interrogate the other essential issues in this clause.

Clause 6
The Committee provisionally accepted the clause.

Clause 7
Mr Labuschagne noted Mr du Toit’s remarks that the clause should be rephrased because section 35 of the Constitution guaranteed the right to be presumed innocent. The word “guilty” was opposite to innocent and should be replaced with an alternative wording.

Mr Smuts stated that wording was in line with the current practice.

The Committee accepted this explanation.

Mr Labuschagne detected that the EC was opposed to the coupling of criminal offences with accounting and financial obligations.

Ms Seaton supported the EC’s submission.

On the other hand, Mr Jeffery rejected this viewpoint, and supported the provision on the basis that parties would not comply if there were no penalty.

Clauses 8 and 9
Members informally accepted these clauses.

Clause 10
The subcommittee was tasked to look into the issue raised by Mr Steve Swart in this clause.

Clauses 11-24
The Committee agreed with the content of the clauses and provisionally accepted them.

The Committee concluded their deliberations on the floor crossing legislation.

The subcommittee departed the venue to attend to the outstanding issues raised during the deliberations.

Mr Carrim indicated that Ms Mahlawe would assist him in chairing the next part of the meeting.

Reform of Customary Law of Succession and Regulation of Related Matters Bill (Customary Law of Succession Bill): Department response to submissions

Preamble

Ms Theresa Ross, State Law Advisor, DoJ, indicated that the Women Legal Centre (WLC) had proposed the insertion of the following words into the Preamble: “Customary law has been tainted by its codification, recordal and application during the colonial and apartheid times and the historic exclusion of women its development. Customary law is subject to the Constitution. “

In response to this, the Department stated that the addition of the words would be superfluous because the Bill dealt with succession and not necessarily the development of customary law.

The Committee was satisfied with the Department’s response. However, they believed that the wording could possibly be inserted into the Traditional Courts Amendment Bill.

Clause 1
Ms Ross explained that the clause dealt with the definitions contained in the Bill.

Descendant
Ms Ross noted that the WLC proposed the deletion of the word “immediately” in the definition of descendant.

In its response, the Department reasoned that the word should be retained because it served an important role in determining at what stage a person was in fact a dependant. Ms Ross added that the definition was not exhaustive and that other people may also be descendants depending on the facts of a particular case.

Adv C Johnson asked whether unborn children were excluded from the current definition.

Mr Deon Rudman, Director: Legislative and Constitutional Development, DoJ, explained that the definition was not exhaustive and that the normal rules relating to the unborn still applied.

Mr Carrim disagreed with the submission made by the WLC, and accepted the Department’s response on this matter.

Customary Law
Mr Carrim disliked the use of the word “usages” in the definition.

Ms Ross suggested that the word be reconsidered and substituted with “practices”.

Ms Maureen Moloi of the SA Law Reform Commission, explained that the Department had used the definition contained in the old Recognition of Customary Marriages Act.

Mr Carrim accepted the explanation.

Also, Mr Carrim strongly objected to the use of the word “people” in its plural form, and preferred that the singular form be used. He argued that the former implied that the country was made of different nationalities, when the country comprised of one nationality with different ethic groups in it.

House
Mr Carrim found it unusual that in terms of this Bill, a house did not only comprise of a building but also included rights and status as well. He added that he accepted the definition if was similar to that of other relevant legislation.

Ms Ross confirmed that in the context of customary law, a house did not only necessarily mean a structure.

Spouse
Ms Mahlawe questioned whether the current definition made provision for cases where a person had more than one spouse.

Ms Ross answered in the affirmative and clarified that in terms of the Recognition of Marriages Act, a man could have more than one spouse.
 
Clause 2
Ms Ross recalled that the Committee had requested the Department to reconsider the use of the wording “providing children to” in clause 2 (2)(b). The Committee had raised concerns that the retention of that wording was demeaning to women. The Department had responded accordingly and substituted the offending words with the word “perpetuating”.

Mr Carrim was not convinced that the Department had solved the problem because the amendment did not make much sense. Furthermore, he argued that one could take political correctness to a certain extent only, and that if it was the custom for a woman to enter into a customary union for the purpose of providing children, the original words should be retained.

Ms Gillian Nesbitt, Parliamentary Researcher, noted that Ms Moloi had consulted with experts in order to establish whether the language could be changed. She believed that the amendment was trying to put a façade on the actual true meaning, which in any event was not changed.

Ms Mahlawe believed that the word “perpetuate” had a negative connotation.

Mr Solomons disagreed with this assessment.

Adv Joubert suggested that the word “continuing” in place of the proposed amendment.

A parliamentary researcher stated that the Committee had raised concern about the essence of the practice, and not how to couch the wording in this clause. In addition, he recognised that the practice itself (of women entering customary unions for purposes of providing children) had connotations of demeaning women as merely providers of children. However, he noted that the Bill did not seek to amend customary law, and as a result described the amendment as an unnecessary “cosmetic exercise”.
 
Mr Carrim stated that the practice was ongoing, and would take time to change. Consequently, he suggested that the original wording be retained.

With reference to clause 2(2)(c), Ms Seaton questioned whether a woman could be married to another woman under customary law.

Ms Ross replied that this practice was specific to the Mujaje community, where the traditional leadership was on the female side. It is a customary arrangement that is referred to as a marriage. 

Ms Moloi further explained that in terms of customs of certain tribes, a woman could get married to another woman, for the purposes of birthing a child.

Clause 3
Ms Ross summarised that clause 3 defined the manner in which the Intestate Succession Act was to be interpreted, in order to give effect to the provisions in the Bill.

Members accepted the explanation and only proposed one technical amendment.

Clause 4
Ms Ross stated that the clause provided for property accruing to a woman by virtue of her customary marriage to devolve in terms of a will.

The Committee did not contest any issue in this clause.

Clause 5
Ms Ross explained that the clause contained procedures for dissolving disputes pertaining to the devolution of family property to be addressed by the Masters Office.

In addition, Ms Ross addressed a query from a previous meeting that related to the accessibility of the Masters Offices in the rural areas. In response to this, she indicated that the service points to the Masters Offices can now be accessed at Magistrates Courts all over the country.

The Committee agreed with the contents of the clause.

Clause 6
Ms Ross explained the clause excluded succession to the property acquired or held by a traditional leader in his or her official capacity from the application of the Intestate Succession Act 1987. She noted that the WLC had opposed this provision and questioned why the estate of traditional leaders should be considered differently from the estate of other members of the traditional community. The Department differed with this view and advanced that only a property that was held on behalf of a traditional community would be excluded from the Intestate Act.

Members did not raise any questions.

Clause 7
Ms Ross addressed the submission made by the WLC on this clause. The civil society organisation had submitted that the clause protected only the customary law partner and not the civil marriage spouse. As a result, it proposed that no time limit should be attached to the protection of women in either a civil or customary marriage. After considering the proposal, the Department believed that the clause should be omitted because the Repeal of the Black Administration Act and the Amendment of Certain Laws Act protected any right acquired in terms of the 1927 Black Administration Act.

The Committee did not give any input on this clause.

Clause 8 and 9
Ms Ross explained that clause 8 dealt with consequential amendments, whereas clause 9 contained the short title and the commencement clause.

No comments or questions were made on these clauses.

The Committee concluded their deliberations on the Bill.

Briefing by the Subcommittee
Mr Jeffery reported to the Committee on the outcome of the subcommittee’s deliberations. He indicated that Mr van der Merwe had pointed out other problems with the provisions on party funding. More specifically, problems were identified in the long title, clauses 2, 6 and 7 of the Bill. The subcommittee recognised the need to revise the funding provisions. However, it was concerned about doing it piecemeal, and therefore recommended greater engagement with the EC and political parties in general. In light of this, the subcommittee proposed that no changes should be made to the Funding Act unless there were consequential amendments to the abolition of floor crossing.

Adv Joubert was in full agreement with the subcommittee’s recommendation.

Mr Jefffery reminded Members that they would only vote on the Bills some time the following week.

The meeting was adjourned.

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