NOTES ON FLOOR CROSSING

Submitted by: Representatives of the Electoral Commission

To: The Portfolio Committee on Home Affairs

Date: 19 February 2008

1. The Chairperson of the Portfolio Committee on Home Affairs have asked for a submission on floor crossing. We trust that these notes may be of interest to the Committee.

2. Under the electoral system for the National Assembly and the nine provincial legislatures, voters vote for a party. The party wins a number of seats. The seats are filled from that party's list of candidates and the candidate vacates the seat the moment he/she ceases to be a member of the party. This is sometimes referred to as the anti-defection clause, under which a member cannot "cross the floor" to another party. It also allows for parties disenchanted with its representatives to "recall" and replace them.

3. A similar system applies for municipal councils where both PR and ward councillors nominated by parties lose their seats when they cease to be a member of their nominating party.

4. In 2002/2003 a legislative regime was introduced whereby members could during a 15 day window period in September in each of the second and fourth years after an election "defect" from their nominating parties without losing their seats. Thus floor crossing was introduced.

5. In May of 2006 the President said in Parliament that the floor crossing issue is not one to be deferred to the Executive, but that it should rather be discussed in Parliament and that Parliament's annual review of the Constitution would be a good opportunity to do so. The President said that Parliament should say whether the conditions which necessitated the institution of these measures had changed such that the legislation needs to be changed. We prepared a comprehensive submission for the review process but could not establish whether such a review did take place.

6. Before and after the adoption of the floor crossing legislative regime, it met with opposition from inside and outside of Parliament. The ongoing manifestations of undesirable unintended consequences of these measures led to a moment where now there is general consensus amongst parties (political and interested) that floor crossing must go. Floor crossing may have been justified as a vehicle for the inevitable re-alignment of political groupings after the government of national unity had run its course in 1999. If this was its purpose then it has now served its purpose.

7. On 6 November 2007 representatives of the Electoral Commission met with the Chairpersons and members of the Portfolio Committee on Home Affairs and the Standing Committee on Private Members' Legislative Proposals and Special Petitions (in joint sitting) in Cape Town. In the course of the discussions we came to understand that the Private Members' Legislative Proposals and Special Petitions Committee was engaged in the review of the floor crossing legislation. We were informed that that Committee was anxious to deal with the matter as speedily as possible, aiming to start the process early in March 2008. The Chairperson of that Committee also requested the Commission to co-operate with it in the process. We have since not heard from that Committee.

8. The floor-crossing legislative regime was introduced by way of amendments of the Constitution of the Republic of South Africa, 1996. [See sections 47(3)(c) and 106(3)(c) and Schedules 6A and 6B]. The amending bills served in the Portfolio Committee for Justice and Constitutional Development having been introduced by the Minister of Justice and Constitutional Development.