Issued by African National Congress - Parliament
25 February 2003
Madame Speaker
Honourable Minister Dr Penuell Maduna, M.P.
Honourable Members
Ladies & Gentlemen
I rise, on behalf of the ANC, in unconditional support of the Constitution of the Republic of South Africa Third Amendment Bill (referred to as "the Third Amendment Bill") and the Constitution of the Republic of South Africa Fourth Amendment Bill (referred to as "the Fourth Amendment Bill"), being placed before this House today for debate and decision.
FOURTH AMENDMENT BILL
I, firstly, make a few general remarks about the Fourth Amendment Bill, dealing with floor crossing.
As honourable members are aware, the Portfolio Committee on Justice and Constitutional Development ("the Justice Committee"), during June 2002, recommended to this House, the adoption of four pieces of legislation, which had the effect of introducing the principle of crossing the floor into our law at national, provincial and local spheres of government. After a court challenge, all these Bills were held to be constitutional, in terms of their substantive provisions, but the Membership Bill was held not to be constitutional, because of a procedural defect during the passing of this Bill. The Fourth Amendment Bill is the government's and Committee's response to deal with this procedural defect. To contextualise, for the first time in this House, the Constitutional Court's approach to these pieces of legislation, I spend my time in this debate on a brief analysis of the judgement.
During early October 2002, the Constitutional Court handed down three related judgements dealing with floor crossing. The main judgement considered the constitutional validity of four Acts of Parliament passed in June 2002 providing for members of national, provincial and local government legislatures to retain their seats despite defecting from the parties under whose banner they were elected. The second judgement dealt with an appeal by government against interim orders issued by the Cape High Court suspending the operation of legislation dealing with constitutional amendments, contrary to section 80 of the Constitution; and the third judgement gave reasons for an interim order made by the Constitutional Court when it convened on 3 and 4 July 2002 and heard argument on behalf of the UDM, government and others, which also had the effect of suspending the operation of these constitutional amendments, possibly contrary to the said section 80.
When the Constitutional Court considered the constitutionality of these four pieces of legislation, it did so by considering it by way of two related sets of Acts. The first, concerned with local government, consists of Act 18 of 2002 ("referred to as the the First Amendment Act"), which amends the Constitution to permit limited floor crossing in municipal councils, and Act 20 of 2002 ("referred to as the Local Government Amendment Act"), which amends the Local Government: Municipal Structures Act". The second set consists of Act 22 of 2000 ("the Membership Act"), which removes the existing prohibition on floor crossing in the National Assembly and the nine provincial legislatures, and Act 21 of 2002 ("referred to as the Second Amendment Act"), which further amends the Constitution to cater for corresponding changes to the composition of the National Council of Provinces.
The Court stressed that the merits or demerits of the disputed legislation were not in issue. That was a political question of no concern to the Court. What was to be decided was not whether the disputed provisions were appropriate, but whether they were constitutional. It held that amendments to the Constitution duly passed in accordance with the requirements of the Constitution became part of the Constitution and that there was little scope for challenging constitutional amendments passed in accordance with these prescribed procedures and majorities.
The UDM and others contended in Court that the right to vote and proportional representation are part of the basic structure of the Constitution and, as such, are not subject to amendment at all. But the Court held that the electoral system adopted in our Constitution is one of many that are consistent with democracy, some containing anti-defection clauses, others not; some proportional, others not. Proportional representation and the anti-defection provisions which support it are not so fundamental to our constitutional order as to preclude any amendment.
The UDM and others also contended that the disputed legislation was inconsistent with the founding values of the Constitution, in particular the value of multi-party democracy and the rule of law. The Court held that a prohibition on floor crossing, is not an essential component of multi-party democracy, nor of proportional representation, nor of the rule of law. The Constitution does not demand an anti-defection provision. It provided for an anti-defection clause in the case of members of the National Assembly and provincial legislatures only - and then only for a limited transitional period - and specifically allows that it be amended during the transition by an Act of Parliament.
[The Court also held that limiting floor crossing to two window periods in the life of the legislature is directed to concerns relating to stability within legislatures and is a rational decision. A threshold of 10% of a party's representatives in a legislature for floor crossing is also rational, given that one of the main aims of the legislation is to accommodate mid-term shifts in political allegiances.]
The general conclusion the Court arrived at was, therefore, that floor-crossing legislation for national, provincial and local government was not as such inconsistent with the Constitution.
There was, however, a procedural objection which the Court held was fatal to the legislation pertaining to national and provincial legislatures. In adopting the Membership Act, Parliament chose to use the special transitional mechanism allowing for the introduction of floor crossing by ordinary legislation, in accordance with section 76 of the Constitution. This mechanism was, however, part of the transitional provisions and was expressly to be exercisable "within a reasonable period after the new Constitution took effect" (on 4 February 1997). The Court concluded that in the context of the transitional provisions that apply only until the next elections in 2004, the period of more than five years that had elapsed since the Constitution came into force can hardly be said to be "a reasonable period". This conclusion was reinforced by the circumstance that in June 1998 Parliament apparently accepted the advice of a special committee it had established that floor crossing should remain barred and the issue revived only after the break-up of the Democratic Alliance and consequential political realignments since 2001. Therefore, although Parliament could have done away with the anti-defection provision entirely, the method it decided upon was no longer valid. The Membership Act was inconsistent with the Constitution and invalid, because of this procedural defect of passing the Bill with an ordinary majority in terms of the said section 76, instead of a two thirds majority in terms of section 74 (3). This, despite the fact that the National Assembly passed the Bill with more than an 80% majority.
This is the typical example of damned if you do, damned if you don't. The committee (and the National Assembly) had the choice of using the procedure in item 23A, which was and is still part of the Constitution or the procedure prescribed for "ordinary" constitutional amendments in terms of section 74 (3). In the result the challenge to the floor-crossing legislation was upheld insofar as it pertains to the national and provincial legislatures because of a procedural defect and dismissed in relation to national, provincial and local government in respect of the substantive objecting and in relation to local government in respect of the procedural objections. Accordingly, floor-crossing was not permitted in the national and provincial legislatures, but was permitted in relation to local government.
As we know, because of the interim court orders, members of municipal councils were not able to cross the floor during the initial 15-day window period in June last year. The Court held that the will of Parliament had been blocked despite the fact that the law in question was constitutional. The Court decided it would be just and equitable to allow a 15-day window period to run from 8 October 2002 during which floor crossing may take place in the local government sphere.
All that is history now …….
The second judgement held that the High Court orders suspending the operation of the legislation containing constitutional amendments pending determination of its validity by the Constitutional Court were too wide and should not have been made. The Court held, assuming (but not deciding) that high courts have the power to do so, orders of this kind interfere with the legislative and executive functions of government and may negate the separation of powers, and should be issued only in exceptional circumstances to prevent serious irreparable harm. The Court held that no such case was made out in the High Court to show irreparable harm. Also, as appeared at the urgent hearing of the Constitutional Court, less invasive relief would have preserved the interests of all concerned. Government's appeal was thus upheld.
[In the third judgement the court sets out what happened when it convened urgently early in July. The proposed appeal by government raised the question as to when - if ever - a court is empowered to suspend the operation of an Act of Parliament. This bears on the separation of powers and is of particular constitutional significance and sensitivity. Leave to appeal was therefore granted but time had to be allowed for the parties to prepare full argument. Also, intervening parties had not filed affidavits and time had to be allowed for further interested parties to intervene. The judgement explains a series of orders the Court then made in consultation with the parties and interveners then represented, effectively freezing the situation until final judgement could be given on all the issues.]
The question still remains, what is the Portfolio Committee on Justice and Constitutional Development proposing in the Fourth Amendment Bill to rectify the procedural defect identified by the Constitutional Court?
Provision is, firstly, made for the deletion of the bulk of item 23A from Schedule 6 in the Constitution, in accordance with the Constitutional Court decision, that it is no longer operative as a transitional arrangement. Secondly, section 43 (3), in the national sphere and section 106 (3), in the provincial sphere, have been added to the Constitution, to make provision for a further ground upon which a member may lose membership of a legislature, namely if he or she change their membership of a party, other than in accordance with the provisions of Schedule 6A. Thirdly, a new schedule 6A is added to the Constitution, the contents being very similar to the same schedule applicable for the local government sphere, which ahs been found by the Constitutional Court to be constitutional.
The Constitutional Court also expressed certain views, without deciding the issue, in respect of item 9 of schedule 6, a clause similar to item 23A, but relating to the local sphere of government. To avoid any further disputes in this regard, this provision is being deleted, relying on the courts' negative views expressed in relation to this item 9 and the said item 23A.
Special mention needs to also be made of item 6 (3) in the Bill, as originally introduced, but now being deleted. The so-called clause on retrospectivity restoring the membership of a member who allegedly lost their membership of a legislature because of the provisions of the four pieces of legislation passed in June 2002. The Portfolio Committee on Justice and Constitutional Development are fully supportive of the removal of this provision from the Bill, as prior to the removal the Committee already questioned both the constitutionality and desirability of such a provision in the Constitution.
I thank you.