The Constitutional Court reserved judgement on Thursday in the application to have ”crossing-the-floor” legislation declared unconstitutional.
Chief Justice Arthur Chaskalson did not say when the judgement would be given.
The United Democratic Movement (UDM), the Inkatha Freedom Party (IFP), the Pan Africanist Congress (PAC), the African Christian Democratic Party (ACDP) and KwaZulu-Natal premier Lionel Mtshali have asked the court to declare unconstitutional a package of legislation that allows MPs, MPLs and local councillors to change parties without losing their seats.
The two-and-a-half day hearing concluded by midday on Thursday after the applicants’ lawyers replied to the arguments put on behalf of the government and the African National Congress, both of whom contend the legislation should remain on the statute books.
Jan Heunis, SC, for the UDM, PAC and ACDP, said the defection legislation diminished the Constitution. ”It devalues the vote.” A vote translated into a say, he said.
”The governing party governs with a majority due to its close association with the liberation struggle which was more than else concerned with the right to vote.”
Heunis said the day after the Democratic Alliance (DA) split in October last year, New National Party (NNP) leader Marthinus van Schalkwyk gave the assurance that the ANC would accommodate its members, an indication that the lifting of the defection ban was near.
By late November a co-operation agreement between the NNP and ANC was in place.
”These laws were made solely to give effect to the understanding between the NNP and the governing party… They don’t have a legitimate government purpose, only a narrow party-political purpose.”
Heunis said he agreed with Wim Trengove, SC, for the government, that the Constitution allowed politicians to act for political motives.
”But they can’t tamper with the Constitution for political reasons that are inconsistent with the Constitution.”
The DA split was not a legitimate reason to allow national and provincial lawmakers to cross the floor and retain their seats, Heunis said.
The DA did not participate in the national and provincial elections and therefore had no representatives on those levels. In the local government elections a significant number of voters supported the DA to keep the ANC out.
The defection legislation would result in their vote being devalued, he said. Heunis said the legislation might result in the ANC governing KwaZulu-Natal.
”On the local government level the outcome would be even more pronounced in… the number of local councils the ANC would govern… When elected representatives cross the floor it has very real consequences, not only mathematical consequences.”
It could determine a party’s status in a legislature — whether it was the governing party or not, the official opposition or had any representation at all.
In principle, a party that did not even participate in the preceding election could become the governing party due to defection, he said.
The legislation had implications for a party’s capacity to represent the voters who elected it. Diminished numbers of representatives could mean that a party could no longer participate in committees of a provincial legislature or Parliament.
”It has implications for a party’s capacity to hold the government accountable.”
Defections could also hamper a party’s ability to account to the voters who elected it, Heunis said.
Maurice Pilimer, SC, for the IFP and Mtshali, said the 1996 Constitution provided for laws on crossing the floor to be made within a reasonable time.
That time was before the 1999 elections, he argued. ”The only sensible way is to change the rules before the election, not thereafter.”
Elected representatives were agents of the nominating party, Pilimer said. ”The legislation allows for the agent to take away the principal’s asset.”
Representatives did not have mandates to donate their seats to other parties than those under whose banner they were elected, he said.
After the hearing, UDM leader Bantu Holomisa, whose party initiated the legal action, said he was satisfied with the way the case was presented.
”I think we might have succeeded in stopping the political vandalisation by the ANC and NNP who want to steal our property… The seats belong to the political parties that hold them in trust for the people.” – Sapa