Allowing KwaZulu-Natal legislature members who defected to the African National Congress (ANC) from other political parties to temporarily retain their seats would undermine the constitution, the Constitutional Court heard on Monday.
An order being sought by the ANC to do this would deprive those appointed in the place of the defectors of their constitutional rights, and confer upon the defector privileges they were not entitled to, Maurice Pillemer, SC, argued on behalf of the respondents.
Respondents include the Inkatha Freedom Party (IFP) and Democratic Party (DA), who each lost two members to the ANC.
The United Democratic Movement (UDM), which lost one member to the ruling party, was not represented in court even though it was also cited as a respondent along with other parties.
”The order being asked for seeks to undermine the constitution,” Pillemer argued.
The matter arises from a Constitutional Court judgement on October 4 invalidating the Membership Act due to a procedural defect. The Act aimed to permit floor-crossing at national and provincial level. The original Constitutional Court judgement allowed defection at local government level for a 15-day window period in which floor-crossers would retain their municipal seats.
The court at the time extended an interim order protecting floor-crossers at national and provincial level from party discipline and expulsion. It also prevented changes in the executive structures of national and provincial legislatures.
In KwaZulu-Natal, five legislature members defected to the ANC on June 21 in the belief that they would retain their seats in terms of the Membership Act. After the legislation was invalidated and the protection period expired, the five lost their positions.
Four new DA and IFP members have been appointed in their place. The UDM has not yet replaced its representative.
Before the changes, the ANC and IFP were in a coalition government. Should the application be upheld, the ANC would gain the majority in KwaZulu-Natal in co-operation with the New National Party (NNP) and the Minority Front (MF).
The ANC asked the Constitutional Court on Monday to extend the protection period until such time as a new bill aimed at correcting the defects in the Maintenance Act was approved or rejected.
Pillemer asked for the application to be thrown out: ”It can never be just and equitable to deny privileges guaranteed under the constitution,” he argued.
He also contended the court did not have jurisdiction to hear the matter, and rejected arguments for the matter to be heard on an urgent basis.
It was not correct to ask of the court to make a ruling based on ”intended legislation” that may never be passed or could take on a totally different format from that envisaged, Pillemer said.
Pillemer added that the proposed amendments would probably not make provision for a retrospective protection of defectors.
Kevin Swain, SC, argued for the ANC that the five affected KwaZulu-Natal councillors had acted in good faith.
”What we have here are five individuals who bona fide relied (sic) on the provisions of an act and then had the rug pulled from under their feet,” he argued.
”They relied on legislation and were at the same time prejudiced by it.”
Furthermore, due to the political changes four ANC MECs in KwaZulu-Natal were in danger of being replaced since the interim freeze on executive changes had expired, he argued.
To this end, Swain asked that if the court decided against the ANC, it at least put a moratorium on changes in the balance of power in legislatures pending the finalisation of the new legislation.
For Justice Minister Penuell Maduna, Denzil Potgieter, SC, argued in support of the application. The purpose of the minister’s participation, he told the court, was to obtain clarification about the exact effects of the court’s order on the Membership Act and the issue of floor-crossing.
The minister applied to be allowed as an intervening party. Judgement was reserved. – Sapa