The Constitutional Court’s judgement on Friday gives scope for the government to pilot legislation in Parliament to allow defections at national and provincial level.
”The (court’s) general conclusion is therefore that floor-crossing legislation for national, provincial and local government level is not as such inconsistent with the Constitution,” says Judge President Arthur Chaskalson in a unanimous judgement of the court.
However, there was a fatal procedural flaw in the ordinary legislation Parliament used to effect the law regarding national and provincial legislatures, the court ruled.
It was referring to the Loss or Retention of Membership of National and Provincial Legislatures Act. For this reason, only defections at local government would be allowed.
At local level, however, municipal councillors would be able to defect during a 15-day window period from October 8, without losing their seats.
On the provincial and national flaw, the judges said Parliament had used a special mechanism allowing for floor-crossing by ordinary legislation.
However this was part of a transitional constitutional provision which allowed floor-crossing legislation to be passed by Parliament ”within a reasonable period after the new Constitution took effect”.
More than five years had passed and this could hardly be called a ”reasonable period”, Chaskalson said.
Speaking after the ruling, Constitutional Ministry representative Paul Setsetse said the court had made it clear that the Constitution needed to be amended to allow defections at national and provincial level ”as we did in the case of local government”.
”The Minister of Justice will study the judgement and will decide whether to approach Parliament with a view for us to comply with the decision of the court as far as these two issues are concerned.”
The ruling clears the way for the African National Congress to take control of the Cape Town Unicity Council. However, the ruling will not change the balance of power in the KwaZulu-Natal legislature.
Had the court approved floor crossing at provincial level, five planned defectors in that legislature would have made the ANC the largest single party in KwaZulu-Natal.
At this stage it is unclear if the five who planned to move to the ANC from the Inkatha Freedom Party, Democratic Alliance and United Democratic Movement will keep their old jobs.
The court gave three judgements, two of which were technical and related to the Cape High Court order freezing the constitutional amendments earlier this year.
The judgement on the merits of the case dealt with four acts — two of which were amendments to the Constitution. Chaskalson said the two constitutional amendments followed all the legal requirements for such amendments and were thus constitutionally valid. They now form part of the constitution and floor-crossing is permitted at municipal level.
Each party has been ordered to pay its own costs. Reacting to the judgement from Cape Town, an ANC member of the unicity’s executive committee, Saleem Mowzer called the ruling an ”excellent outcome”.
”The ANC was prepared and we knew we were right,” he said. There was a crisis in the DA, which had resulted in a lack of accountability as far as good governance went.
”We are confident we will have the necessary 24 councillors so the ANC and the NNP can become the governing parties of Cape Town,” he said.
The DA currently holds the unicity with a majority of 107 of the 200 councillors. However 70 of those 107 sets are held by former NNP members, and it is expected a number of them will formally rejoin their party, which has a co-operation agreement with the ANC.
The ANC has 77 seats in the city. Speaking at the court in Johannesburg, Democratic Alliance Chief Whip Douglas Gibson said: ”Let’s see what happens. We maintain that the Nats will end up with fewer councillors than before.”
He said the voters in the Western Cape who wanted to support the ANC had voted for the ruling party.
”By political trickery and ‘deals’ the NNP wants to hand over control to the ANC. This will be most unpopular with the voters and the next election is not far away.”
Gibson said the DA welcomed the Constitutional Court judgement, saying it put the matter beyond doubt.
”We will be considerably strengthened,” he said. – Sapa