A full bench of the Cape High Court on Monday afternoon ruled in favour of the United Democratic Movement’s (UDM) application that South Africa’s defection laws be put on hold until the Constitutional Court could rule on their constitutionality.
In a short judgement read by Judge President John Hhlophe, after a day’s argument by the State and UDM’s legal team, the court ruled that the UDM should make its application to the Constitutional Court by no later than June 27.
Indications on Monday were that the matter could be heard in the Constitutional Court in the first week of July.
A late-night ruling given by Judge Hennie Nel last Thursday granted the UDM an urgent interdict putting the package of four crossing-the-floor Acts on hold until the Constitutional Court had been able to rule on them.
The bills were passed by Parliament last Wednesday and signed by President Thabo Mbeki on Wednesday night.
Nel said he did not feel he, as a single judge, should rule on such an important issue, but that a full bench should be convened as soon as possible.
The UDM’s legal team, headed by Advocate Jan Heunis SC argued that the acts had in effect been published after Judge Nel had made his order last Thursday night.
Hlophe was assisted on Monday by Deputy Judge President Jaenette Traverso and Judge Deon van Zyl.
After hearing counsel for the UDM, Jan Heunis SC, and Vincent Maleka SC for the State, the bench retired to Hlophe’s chambers for about 20 minutes before returning to give their verdict late on Monday afternoon. No order was made as to costs.
Bantu Holomisa, the UDM’s triumphant leader, addressing a large crowd and reporters from the steps of the High Court, said his party welcomed the court’s decision and looked forward to complying with any other conditions imposed by the Constitutional Court.
Holomisa said those who wanted to ”fly” (change party allegiance), should not do so until the Constitutional Court had made its ruling.
There was great public and political interest in Monday’s court proceedings, with senior UDM, African National Congress (ANC), New National Party (NNP), African Christian Democratic Party (ACDP), Pan Africanist Congress (PAC) and Democratic Alliance (DA) MPs among those present.
At one stage the public galleries were packed. After the verdict, UDM politicians and their legal team hugged or shook each other’s hands in congratulation.
Although some political parties expressed their delight at the court decision, government vowed to fight the issue when it came before the
Constitutional Court.
Justice Minister Penuell Maduna’s representative, Paul Setsetse, said on Monday that government was ”disappointed” at the judgement.
”While we are disappointed for now, at the same time the court has confirmed our argument that the only court that can decide on this matter is the Constitutional Court.”
Government would ”most certainly” put its case before the Constitutional Court, as it believed the legislation was indeed constitutional, Setsetse said.
DA chief whip Douglas Gibson said his party welcomed the fact that such important legislation would be ”tested now by the highest court in the land”.
”We reiterate our view that, subject to certain limits and conditions, it should be possible for individuals to cross to other parties as an act of conscience? however, when changes of government are triggered by these machinations, surely an election is required to determine democratically the will of the people affected?” Gibson said.
Musa Zondi of the IFP expressed his delight at the ruling.
”It gives us the opportunity to fight this thing out… we are pleased about it, it vindicates those of us that felt that this legislation is not right, that it was fishy,” he said.
However, the NNP called the judgement ”a pity”. NNP deputy executive director Daryl Swanepoel said it meant that the uncertainty in the political arena would continue until such time as clarity had been given.
”We are by no means concerned with the challenge in the Constitutional Court, since we are confident that it will pass the test. Naturally, the matter is now sub-judice and therefore we cannot elaborate any further,” Swanepoel said.
Steve Swart of the ACDP welcomed the judgement, saying the ACDP ”has always been on record as opposing the package of legislation”, and would ”consider intervening in the proceedings together with the UDM”.
Political analyst, Richard Calland of the Institute for Democracy in South Africa (Idasa), said his organisation had always believed the legislation had the potential to cause instability.
The ruling was a victory for democracy, rather than for the UDM, as it amounted to a victory for citizens, rather than ”solely for politicians”, he said. – Sapa