Constitutional Court Judge Johann Kriegler cut to the heart of the floor-crossing controversy this week, saying that he had ”great difficulty” in accepting the defection law was an honest reflection of the people’s will.
Go back to the voters, he told the political parties who had flocked to the court in Johannesburg to hear the case.
Judge Kate O’Regan also hinted at her concerns about the legislation, commenting that in South Africa’s proportional representation system, political parties, not individual politicians, are accountable to voters.
The judges’ comments came on the second day of the application by South Africa’s threatened smaller parties — the United Democratic Movement, the Inkatha Freedom Party, the African Christian Democratic Party and the Pan Africanist Congress, with KwaZulu-Natal Premier Lionel Mtshali — for the defection law to be struck down as unconstitutional.
Spearheaded by Chief Justice Arthur Chaskalson, Judges S Ngcobo, O’Regan, Yvonne Mokgoro and Kriegler, they were responding to state counsel Wim Trengove’s argument in favour of a package of laws allowing members of national and provincial parliaments and municipalities to defect.
The questions exercising their minds, and which they fired at the state’s lawyers in a steady stream, were: does the seat in a proportional representation system of government belong to the party or to the individual? Will floor-crossing reflect the popular will in the national and provincial parliaments, which are not based on constituencies? How will defections affect the proportional representation equation in Parliament, legislatures and the councils?
Jan Heunis, representing the UDM, ACDP and the PAC, argued on Tuesday, the first day of the hearing, that the legislation had ”no legitimate government purpose” and had been motivated by political expediency.
In response, Judge O’ Regan underlined the need for counsel to restrict its arguments to the issue of constitutionality. Judge Chaskalson pointed out: ”We are not considering whether this is a good or a bad law, or whether it is politically unwise, but only if it is unconstitutional.”
Heunis changed tack, arguing that the legislation destroyed the proportional representation system prescribed by the Constitution.
However, on day two the state’s counsel decided to confront the expediency claim head on. ”What is wrong with politicians bringing about legislation that serves the interests of their parties? It is perfectly legitimate, and the Constitution is not interested in it,” Trengove argued.
Emphasising that no electoral system was perfect, he said it was not practical to hold repeated elections to maintain proportionality.
The judges also questioned whether the window period set by the law for June, allowing unlimited numbers of politicians to cross the floor, embodied a ”legitimate government purpose”.
Justifying the window period as urgent, Trengove cited the split in the Democratic Alliance and alleged threats of violence in KwaZulu-Natal, where the legislation could force a change in government.
The judges questioned Trengove’s argument that proportional representation had to be broadly construed.
Judge Kriegler then asked how one could determine whether voters wanted their representatives to switch sides.
”Do we read the wind?” he asked.
Meanwhile the African National Congress’s chief whip in the KwaZulu-Natal legislature, Ina Cronje, has questioned by what mandate Mtshali, as provincial premier, has challenged the legislation in court.
In both the KwaZulu-Natal legislature and the National Council of Provinces, the IFP had voted in favour of the package, she said.
Anxious parties may have to wait for some time for certainty on their fate. On Tuesday, Judge Chaskalson hinted that judgement would not be handed down soon.