Floor Crossing by Members of Parliament



The House met at …
The Speaker took the Chair and requested members to observe a moment for silent prayer or meditation.



THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA: Madam Speaker, the government hasn't discussed this particular matter of crossing of the floor, and what we might want to do about it, but I will express a view about it, because the question was whether the government would abolish or amend legislation affecting this matter.

The hon member is perfectly familiar with how this matter has evolved over the years: The discussions that took place as we negotiated the interim constitution; as we negotiated the Constitution we adopted in 1996, and the decisions that were taken then, amongst which was to set up a committee, which was chaired by the hon Yunus Carrim.

The legislation that was finally adopted was based essentially on the matters that came out of the work that had been done by that ad-hoc committee headed by the hon Yunus Carrim. That committee said, among other things, that the basic argument for this approach to do with floor-crossing is that, during the term of the legislature, there can be significant shifts in public opinion, which do not warrant fresh elections, but which have to be represented in the legislature.

It said that by allowing groups of Members of Parliament to cross the floor, these shifts of opinion may be reflected in the legislature. Also, genuine differences of interpretation on what mandate the electorate gave a party and how to implement it can lead to splits in a party, and this should be allowed expression by way of crossing the floor. The ability to cross the floor also curtails the power of the party bosses, and makes for a more vibrant political atmosphere. In short, greater democracy and representivity is made possible through a qualified freedom to cross the floor.

That was one of the arguments of the multiparty parliamentary committee that had been set up to look at this matter. That was one of its conclusions. It discussed other things like how to structure the whole thing, and I think one of the things we would take note of in that regard is that it took very seriously proposals that had been made by Professor Steytler, who was then at the University of the Western Cape - I don't know if he is still there - and Professor Shryer at the University of Cape Town.

I think, in that context, we should take into account and pay some attention to the judgment of the Constitutional Court with regard to this matter, when it considered the issue that had been brought to it by the UDM. It makes some important observations, which I think would be relevant to a discussion on this matter.

A large majority of members of this House voted for that legislation. I think it was 84%, who voted for it. [Interjections.] Yes, I am quite sure the FF was against it. [Laughter.]

At that time, there were some parties that even argued for complete freedom to cross the floor, with no restrictions. That included, I think, the then Democratic Party, the New National Party, the PAC, the ACDP, and the ANC and IFP seemed to be the only parties in favour of restrictions on defections. [Interjections.] [Laughter.]

I think that members of Parliament should discuss this matter. I think that the process that was instituted after the adoption of the 1996 Constitution would be a perfectly legitimate way of approaching this matter again. It is an eminently political matter, and I think the political parties represented in this House have every right and duty to discuss this issue and say whether the conditions which necessitated the institution of this legislation then, as agreed by the overwhelming majority of the members of the House and the overwhelming number of parties of the House, have changed such that we then need to change the legislation.

I do not believe that we should defer this matter to the executive. I believe that the political parties should engage this matter. There is a process that is agreed for an annual review of the Constitution by Parliament, and maybe, you might want to take advantage of that to look at this.

I am told that during last year's review, no member of the public made any submission on the matter of floor-crossing. But, any way, it may very well be that, now, for whatever reason, there is sufficient passion about this matter to subject it to that particular process. I think it must be done by Parliament rather than the executive. Thank you, Madam Speaker. [Applause.]

The LEADER OF THE OPPOSITION PARTY: Madam Speaker, I agree with the President. Perhaps we should all take a leaf from the Jacob Zuma book, and apologise, those of us who supported the legislation. Not that the legislation was wrong, in principle, but the practice of it, Mr President, has become a perversion of the very necessary democratic reforms, which a lot of the proponents of the legislation were in favour of.

I think you would agree with me, Mr President, that the views of the legislators are important. But, when the electorate has an opportunity to express itself, as the electorate did recently on the subject of floor-crossing, which it can do at a municipal level, but cannot do because of our closed list PR system at a national level, it was noteworthy that, in the cities of Cape Town and Pretoria, not a single floor-crosser who offered himself or herself for re-election was endorsed by the voters.

In other words, this opinion poll, which suggests that two-thirds of all voters in South Africa out of a representative sample, are now against it, seemed to have been endorsed as recently as 1 March on the ground, in the local government elections, in respect of floor crossers.

I would ask you, sir, because unfortunately the majority party in the legislature is excessively deferential to the executive of the legislature, to encourage the legislators in the majority party to do exactly what you said, and to look at this afresh. Thank you. [Applause.]

The PRESIDENT OF THE REPUBLIC: Madam Speaker, I can only repeat what I have just said - that I believe that the parties in Parliament really should discuss this. They decide amongst themselves how to do it, and look at everything, and look at whatever the conclusions might be arising out of the recent local government elections and everything else. I think it is necessary to do that.

This poll that the hon Tony Leon refers to, I am told, is two-and-a-half years old? [Interjections.] I wouldn't describe it as ``current''. [Laughter.] I wouldn't describe it as ``current'', in the way that you described it.

Let's discuss the matter. It is important. Part of the reason I referred to the judgment of the Constitutional Court is that it is a very interesting judgment, because it assesses the question whether floor-crossing, however organised, undermines democracy. It says it doesn't. It doesn't matter whatever form it takes, so it may very well be that political opinion in the country is that there should be changes with regard to this matter.

I don't think we should present any suggestion that, in itself, the floor-crossing is illegal, is a subversion of democracy, compromises multiparty democracy or any of these things.

Indeed, I think the comments made by the Constitutional Court are very instructive in this regard. Thank you, Madam Speaker. [Applause.]

Mr J H VAN DER MERWE: Madam Chairperson, Mr President, we certainly welcome your giving the green light for a discussion on the subject. I have listened carefully to you, Mr President, but to us, the critical issue remains very simple: Whom did the voters vote for? Did they vote for a political party, or did they vote for individuals?

You merely have to look at the ballot paper, and the hon Minister in the Presidency can look at the ballot paper, and he will see that we voted for a political party, and not for an individual. That means that the seat in fact belongs to the party, and not to individuals.

Accordingly, Mr President, the seat does not belong to an individual. The act in our opinion is therefore inherently undemocratic and wrong, because it allows an individual to in fact steal the seat of a party and give it to another party.

The HOUSE CHAIRPERSON (Ms C-S Botha): The question, hon Van der Merwe?

Mr J H VAN DER MERWE: The question?

The HOUSE CHAIRPERSON (Ms C-S Botha): Yes. [Laughter.]

Mr J H VAN DER MERWE: The question is ... [Laughter.]

Madam Chairperson, the question is whether the President agrees with the Latin maxim, which says, nemo plus iuris ad alium transferre potest quam ipse habaret. [Laughter.] And that means ...

The HOUSE CHAIRPERSON (Ms C-S Botha): Hon Van Der Merwe, your time has long since expired!

Mr J H VAN DER MERWE: But, Madam Chairperson, can I remind you that when we were young, we sang a song ``Can I have another minute, please?'' [Laughter.]

The HOUSE CHAIRPERSON (Ms C-S Botha): No, hon Van Der Merwe!

The CHIEF WHIP OF THE OPPOSITION: Madam Chairperson, perhaps Mr Mufamadi will translate that too! [Laughter.]

The HOUSE CHAIRPERSON (Ms C-S Botha): Hon President, would you care for a translation?

The PRESIDENT OF THE REPUBLIC: Madam Chairperson, no, hon member. You say, again, that this process is fundamentally undemocratic. Again, I am saying that is one of the reasons I said I thought members should look at what the Constitutional Court was saying about this. This is not unique to South Africa, and is done all around the world. There is nothing undemocratic about it and, indeed, the judges said it might very well be that the process would favour a particular party, and that that in itself was not unnecessarily undemocratic either.

I will speak to the hon Inkosi Buthelezi to suggest that the hon Koos van der Merwe should serve as the IFP representative in the parliamentary processes discussing this matter. [Applause.]

Mr S N SWART: Madam Chair, hon President, firstly, the ACDP clearly opposed the floor-crossing, and joined the hon General Bantu Holomisa in the Constitutional Court challenge. That is just as a matter of record.

As far as the Constitutional Court is concerned, albeit prior to the amendment of the Constitution, hon President, you might recall that in a certification judgment, the Constitutional Court made it very clear that an antidefection clause which disallows floor-crossing would be supportive of multiparty democracy, and said that it also prevents parties in power from enticing members of small parties to defect from the party upon whose list they were elected to join the governing party. But, admittedly, that was prior to the later Constitutional Court hearing.

Hon President, we as the ACDP welcome the openness and the opportunity to discuss this issue anew, and believe that at the very least, the 10% threshold should be relooked at. So, hon President, we just request that you also consider the first Constitutional Court judgment, and the issue of the 10% threshold. Thank you.

The PRESIDENT OF THE REPUBLIC: Indeed, the hon member is quite correct to refer to the earlier views of the Constitutional Court during the certification process. That is correct. But one also needs to say what the ACDP said - they did indeed join the UDM in this action. That is correct.

But, in the period before that, as the matter was discussed, the position, I think, of the ACDP was somewhat different. [Interjections.] So, by all means, let Parliament, the National Assembly and NCOP discuss this matter, and get it sorted out. Thank you, Madam Chair.

Ms F I CHOHAN-KHOTA : Thank you. Mr President, clearly, from our side, on this side of the House, we'd be very happy to engage on this matter, which we think is fundamental to our democratic design.

Of course, we have no reason to believe that, in two years' time, we will be asked to look at the issue yet again, and we simply just don't know where the opposition stands on the matter at any given point.

Many who have joined the ANC, Mr President, have been vilified by particularly the DA, which has claimed that they sold their seats for money and positions. I don't know if you have any thoughts on the matter of why it is that people join the ANC. [Interjections.] I wonder if part of the answer to this very perplexing question could be found in the fact that our opposition as a whole has great difficulty sticking to its guns on matters of import to the development of our democracy and the country as a whole. [Interjections.] [Applause.]

THE PRESIDENT OF THE REPUBLIC: Well, Chairperson, the best I can do is to tell the hon member why I joined the ANC. [Laughter.] [Applause.]

The LEADER OF THE OPPOSITION: You were born into the ANC.

The PRESIDENT OF THE REPUBLIC: No. The hon Leon says that I was born into the ANC.

I joined the ANC Youth League when I was about 13 years old. [Applause.] When I was 13 days old, I had no possibility of joining the Youth League. [Laughter.] [Interjections.] Yes, sure! If the ANC asks me to rejoin today, I would rejoin. [Applause.]

You see, in the broader context of the discussion of this matter, one of the issues that I remember being raised then was the same point that was made by the ad hoc committee - that we have to visualise a society in the process of change, that there necessarily was a certain dynamism, and there had to be a certain dynamism, in the evolution of our society, part of which would reflect itself in changing attitudes. For instance, on the issue of stereotypes, whereas I originally thought that Tony Leon was a racist to the bone, in the practice, I would discover that he is a democrat to the bone. [Interjections.]

But we would inherit a lot of the stereotypes and prejudices from the past, and therefore, there was a need to allow for, as the situation evolved and as people got to understand better the truth rather than the stereotypes - the ANC is communist and terrorist and all that - you must allow for it. You can't have a system that freezes that. Whereas the public mind is changing, you have structures that freeze everything.

So, in that context, there may be people who are members of the DA today, because they are fearful of this terrible ANC, but in the practice, they see that their fear was based on false propaganda of the past. [Applause.]

It may also be true ... [Interjections.] Indeed, vice versa also. It may very well be true that these members of the ANC who have a particular view of the Democratic Alliance get to know that it actually isn't as bad as we thought it was ... [Laughter] ... and defect to the DA. That was part of the reason the argumentation for allowing for this process.

But, it may very well be that, by now, the population and electorate all know another very well. It may very well be. Thank you. [Applause.]

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