Floor Crossing Legislation (Constitution14th;15th & General Laws Amendment Bills): Department of Justice briefing

NCOP Security and Justice

19 August 2008
Chairperson: Mr L Kgoshi (ANC)
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Meeting Summary

The Committee was briefed by the Department on the Constitution 14th and 15th Amendment Bills as well as on the General Laws Amendment Bill. The Department of Justice said that floor crossing legislation was of great importance as it would strengthen democracy in a system based on proportional representation and multi-party democracy. Dr van Heerden  (FF Plus) made a submission on the Constitution 14th Amendment Bill requesting a change in the wording of the Bill to allow for a mid-term shift in political allegiance and not just for an end term shift. He was requested to make a formal submission in writing that would be put to the National Assembly. The Committee would reconsider the matter at its next meeting.

Meeting report

Floor Crossing legislation (Constitution Fourteenth and Fifteenth Amendment Bills and General Laws Amendment Bills): Department of Justice (DOJ) briefing
Mr Johan Labuschagne, Director, Department of Justice, noted that he would address the Constitution 14th and 15th Amendment Bills, together with the General Laws Amendment Bill as they all pertained to the same issue.

He stated that the Constitution 14th Amendment Bill sought to abolish floor crossing in the National Assembly and provincial legislatures while the Constitution 15th Amendment Bill sought  to do the same in Municipal Councils. The General Laws Amendment Bill sought to effect consequential amendments to other legislation affected by the proposed abolition of floor crossing. The legislation must be dealt with speedily, to be implemented before 1 September 2009. This was before the next floor crossing window at local government level would open. Both the 14th and 15th Constitutional Amendment Bills fell within the ambit of Section 74 of the Constitution, while the General Laws Amendment Bill fells within Section 75 of the Constitution, and must therefore be passed according to the procedure set out in those sections.

Dr F van Heerden (FF+, Free State) interjected to ask the Chairperson if these Bills would be discussed separately, as he had an issue to raise in relation to the Constitution 14th Amendment Bill.

The Chairperson requested that Mr Labuschagne should continue his briefing, after which all questions would be considered.

Mr Labuschagne continued by stating that the Constitution 14th Amendment Bill had to be passed by both the NA and the NCOP, and asked for Members to take particular note of clause 6 of the Bills. This would abolish floor crossing as it at present existed, and would regulate the retention of seats in the National Assembly and provincial legislature if floor crossing occurred, resulting in Members who left a party losing their seat.

Dr van Heerden made a submission on behalf of members of the public to question this legislation, as it would not allow for a mid term shift in political allegiance. He raised the question as to why he should  be allowed to be “held captive” by his party until the end of the term. He said that if for instance he wanted to cross the floor two months prior to the end of term, he should be permitted to do so. He therefore requested an opportunity to make a proper submission in writing.

The Chairperson agreed that Dr van Heerden make a formal proposal.

The Chairperson asked that Dr van Heerden also consider that if he was to cross the floor before the end term, he would be disappointing his voters.

Dr van Heerden disagreed that he would necessarily be disappointing them, pointing out that his voters might prefer his sense of honesty as to his change of political stance was and therefore they would choose to reward him later.

Mr Z Ntuli (ANC, Kwazulu Natal) asked Dr van Heerden what he would need to do in the two months that he had suggested he would take to leave his seat.

Dr Van Heerden replied that it would give him an opportunity to start a new party, so that voters could be able to vote for him at the new election without having to wait for five years for him to start his new party again.

Mr N Mack (ANC, Western Cape) replied that a Member would have the option of resigning instead and, if he was of the opinion that his party had gone wrong he should resign, as the seat belonged to the party and not to him personally.

Mr J Le Roux (DA, Eastern Cape) agreed with Mr Mack that the right course of action would be to resign. He stated that this was an interesting suggestion put forward and it could be worthwhile to discuss with members of his party.

Mr D Worth (DA, Free State) said that his party was in favour of floor crossing but he jokingly added that he was faced with 70 applications from people who wanted to walk over to his party, but that it seemed it could “never win!”.

Mr A Moseki (ANC, North West) said that the Member must be allowed to make his submission formally from purely a political point of view

Dr van Heerden thanked him for his opportunity. He said that resigning was not a bad thing although a structure could perhaps be put in place to retain his benefits in order to canvass for a new party. He also suggested that term should end not on the day of the election but four to six weeks before the election. He stated that he would put his submission in writing regarding the issue.

The Chairperson asked any of the legal advisers to address the Committee on this suggestion.

Mr Deon Rudman, Deputy Director General, Department of Justice, said that the principle of floor crossing was being dealt with, and it was an “either you have it, or you do not” situation. He said that the submission to allow a member to resign while still keeping his benefits would actually be dealt with under the Electoral Act, not in any of the three pieces of legislation currently before the Committee.

r Labuschagne moved on to describe the Constitution 15th Amendment Bill. This sought to abolish floor crossing in municipal councils. This would be achieved by Clause 5 of the Bill, which sought to repeal Schedule 6B of the Constitution, which currently regulated the loss or retention of membership of municipal councils when floor crossing occurred.

Mr Myron Peter, Executive Manager, Department of Provincial and Local Government, stated that the Department of Provincial and Local Government (DPLG) supported the amendment as it would start to stabilise the municipalities, especially around their political formations, and stability to internal systems such as their subcommittees, and would also stabilise service delivery.

The Chairperson asked the Department to give an indication what amendments were suggested by the Portfolio Committee to these Bills.

Mr Labuschagne replied that the Portfolio Committee had only made cosmetic changes to the Bills, including the introduction of plain language terminology.

Mr Labuschagne then moved on to describe the General Laws Amendment Bill. This Bill, as previously noted, would amend legislation that would be affected if floor crossing was abolished. He outlined that amendments would be required as a result of the abolition to the following:
a) The Electoral Commission Act of 1996. Section 16A of this Act would be repealed, thereby abolishing the right of political parties to change their name at any time. Currently this section allowed a political party to change its registered name, abbreviated name, distinguishing mark or symbol.

b) Public Funding of Registered Parties Acts 1997. Mr Labuschagne explained that this Act regulated the repayment of unspent balances of all moneys allocated to political parties participating in Parliament and provincial legislatures, from the Represented Political Parties Fund when such parties ceased to qualify. Clauses  2 to 9 of the Bill were amending various provisions of this Act.

c) Determination of Delegates Act 1998. Clause 10 of the Bill was amending Section 2 of the Determination of Delegates Act. The effect of the amendment was that parties formed by floor crossing which did not participate in the last provincial elections must be regarded as having received no votes during that election. The effect of this was that when provincial delegates were allocated, members of the parties formed by floor crossing would not be eligible to be chosen.

d) Electoral Act 1998. This was being amended in Item 23 of Schedule 1A. This related to the filling of vacancies in the National Assembly and provincial legislatures.

e) Local Government: Municipal Structures Act 1998. Mr Labuschagne explained that the Constitution 15th Amendment Bill involved municipal councils. Therefore there were various provisions in the Municipal Structures Act that required amending, as covered by Clauses 12 to 18 of this Bill.

f) Local Government: Municipal Structures Amendment Act 2002. Mr Labuschagne pointed out that clauses 22 to 24 of the Bill were amending sections 12, 13 and 14 of the Local Government Municipal Structures Amendment Act.

The matter was postponed to the following week for formal consideration.

The meeting was adjourned.

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