The Constitution could be the killer, write Marianne Merten and Barry Streek
Marthinus van Schalkwyk’s ingenious plan to save the New National Party may founder on the rocks of complex legal technicalities that will prevent NNP councillors pulling out of the Democratic Alliance without losing their seats.
African National Congress and NNP legal teams are desperately trying to find a way around Section 157 of the Constitution and the Municipal Systems Act, which guarantee fair proportionality in the councils.
It is understood the ANC, on which Van Schalkwyk is depending for a change in law to allow municipal floor-crossing, has received two conflicting opinions on the constitutionality of such a move.
Senior ANC insiders say they believe a legal solution can be found, but are unwilling to go into detail.
If the anti-defection clause remains in place, the DA is likely to hold on to the vast majority of its local government seats.
Community Law Centre researcher at the University of the Western Cape Jaap de Visser said it would be a near-impossibility to draft a defection clause that would not result in constitutional challenges.
”We should not really assume defection is possible. To say it is complex does not even begin to describe it,” De Visser said.
The DA said it will support the scrapping of anti-defection provisions at all three levels of government and that it does not want to keep councillors averse to remaining in its ranks.
However, it is reserving the option of a Constitutional Court challenge. ”As a party we are clearly opposed to the anti-defection clause in the Constitution and we are definitely in favour of members [of legislative bodies] being able to move,” said senior DA MP Ken Andrew.
The party will not take a position until the proposed amendments to the law are tabled. However, it will take legal action if the law is ”skewed or anti-democratic”.
The legal aspect is emerging as critical in the fierce struggle that has erupted between the NNP and the DA, particularly over control of municipalities in the Western Cape.
How the DA cake will ultimately slice if the law is changed remains unclear. The psychological advantage swayed back and forth this week, as Western Cape Premier Gerald Morkel pledged support for the NNP, then for the DA; was suspended from the NNP; threatened High Court action; and was finally left isolated as the NNP’s provincial caucus pledged allegiance to Van Schalkwyk.
A propaganda war between the two sides has further obscured the likely outcome. DA national management committee chairperson James Selfe said this week support was pouring in for the DA, with 113 of about 220 caucuses countrywide pledging their continued backing.
”Even the majority of NNP councillors in the Western Cape, which Mr Van Schalkwyk regards as his stronghold, have rejected his notion of cooperation with the ANC,” Selfe said.
However, NNP leaders point out that councillors could be expected to pledge their loyalty to DA, as the anti-defection clause in the Municipal Structures Act is still in place. As they were elected on a DA ticket in last year’s municipal elections, their jobs were at stake.
”There is a hell of a bond between NNP councillors and the party,” said one. ”If the legislation is changed, at least half the councillors in the Western Cape will cross the floor.”
The ANC leadership is understood to be determined to pass the necessary legislation if it is possible. The view is that any move to weaken the DA deserves support.
At local government level the anti-defection clause can be changed by ordinary legislation, while a constitutional amendment would be needed to revise it at provincial and national levels.
Van Schalkwyk said the scrapping of the anti-defection clause at national and provincial levels is not on the agenda of the NNP’s discussions with the ANC.
The DA and its lawyers are looking at the legal implications of all possible scenarios for the remaining alliance, which unlike the NNP and DP is registered as a political party at the local level.
Such was the uncertainty yesterday that it remained unclear whether the NNP can deliver part of its bait for a link-up with the ANC the control of the Cape Town unicity.
The overwhelming majority of the DA councillors have said they wish to remain in the alliance. However, Van Schalkwyk says a number of councillors have phoned in support of the NNP.
The ANC’s Western Cape leader Ebrahim Rasool says the ANC is in no hurry to resolve the matter. ”We knew this would be a messy divorce and that there are unresolved issues.”
The ANC’s national executive committee is meeting today to consider progress in its negotiations with the NNP. Selfe says: ”I have sympathy for them. (Possible legal change) is by no means a simple issue.”
Visser says that if both ward and PR councillors are allowed to take their seats after crossing the floor, the proportionality requirements of the Municipal Systems Act and the constitution will be skewed raising the possibility of a constitutional challenge.
If only ward councillors could defect, it will also effect PR councillors because these are chosen according to a party list. Only a DA list exists, which the alliance can top up as vacancies arise.
In addition, as PR seats are at least in part calculated on a party’s ward victories, the principle of proportionality would again be distorted and open to constitutional challenge, De Visser said.
He added that 60% of councillors appointed to district councils in rural areas are nominated on a proportionality principle by the various municipalities under the district council. Again any defection clause would affect the proportionality principle, De Visser said.
The other way out of the legal impasse would be to call new municipal elections throughout the country. However, Lekota said this would seriously disrupt delivery for six to nine months and would be costly. Some ANC insiders believe, however, that there would be an advantage for the party if new elections are held, arguing that the ANC would do considerably better than they did on December 5 last year. This would enable the party to consolidate its hold on municipal government and win outright control of more councils in the Western Cape.
Within ANC ranks, the lack of enthusiasm for an alliance with the NNP among some members was reflected in the National Assembly when Van Schalkwyk spoke in a parliamentary debate this week.
About half of the ANC MPs gave him a standing ovation, while the rest remained seated.
Van Schalkwyk himself acknowledged the ANC’s mixed feelings. ”There is some unhappiness in the ranks of the NNP, as I understand from the ANC leadership there is some unhappiness in the ranks of the ANC.” However, Lekota said the talks with the NNP were ”very important” because South Africans were not in a position to create a truly non-racial South Africa without blacks and whites coming together.
President Thabo Mbeki commented that everyone should be inspired by Van Schalkwyk’s ”candour, honesty, sense of direction and commitment to a common future”.
With the ANC leadership so publicly endorsing the NNP approach, it is likely that the proposed alliance will be given the go-ahead at today’s national executive committee, even if there is unhappiness in some quarters.