Floor-crossing battles kept two Cape High Court judges busy for the better part of the day on Monday.
At stake in two cases involving the United Democratic Movement and the Independent Democrats are two seats in the National Assembly, one in the National Council of Provinces and five in various provincial legislatures.
Judge Bashier Waglay will rule on Tuesday morning on a challenge brought by two UDM MPs, one of whom is the party’s deputy president, Malizole Diko, and four MPLs from the Western and Eastern Cape, Gauteng and Limpopo.
They were suspended from the party on August 5 amid rumours that they were planning to defect to the African National Congress or other parties.
They are seeking to have the suspension reversed, and to prevent the UDM from hauling them before a disciplinary committee before the two-week floor-crossing window opens on Thursday.
Their advocate, Jan Heunis, told Waglay on Monday that they are facing trumped-up charges aimed at bringing about their expulsion, and that a series of complaints from other party members about the six are ”clearly crafted to suit the unlawful purpose which the UDM is pursuing”.
The UDM’s counsel, Robbie Stockwell, said the party’s national office management committee is under no obligation to give its public representatives a hearing before deciding whether to suspend them, as Heunis claimed.
He said the party is not exercising a ”public power” in acting against the six, and the Promotion of Administrative Justice Act does not apply.
In the second case heard on Monday, a challenge by the ID’s former Western Cape leader Lennit Max to his expulsion last week from the party, Judge Dennis Davis said he will probably deliver his ruling on Wednesday morning.
Max’s legal team has asked Davis to find that the fact that he has appealed against the expulsion means he is still a member of the party.
If he is a member on Thursday morning, he will be able to cross the floor to the Democratic Alliance and take his seat in the Western Cape legislature with him.
The loss of Max’s seat means the ID also loses a seat in the National Council of Provinces, where delegates’ places are allocated on the basis of a party’s legislature representation.
However, even if Davis rules in Max’s favour on Wednesday morning, Max still has to face the hurdle that the ID has scheduled his appeal hearing for Wednesday afternoon.
Max has countered with a separate court application to stall the hearing on the grounds of procedural unfairness.
Davis commented during argument by the ID’s advocate Paul Tredoux on Monday afternoon that having had Max’s expulsion come into immediate effect seems ”incredibly unfair” in this context.
He asked what would happen if the appeal succeeded, and Max’s successor as provincial leader, Neville Hendricks, had already been sworn in in the legislature in his place.
”That’s another aspect of the argument,” said Tredoux, and suggested that an agreement might be drawn up that would oblige Hendricks to resign if Max was successful.
Davis said he wasn’t sure how enforceable that agreement would be at some point in the future, commenting that he did not know how long the ”ID saga” would continue.
”Like Dallas, it could go on for 20 years,” he said.
He also said he could understand the anger and frustration of smaller parties over the floor-crossing legislation, which in the words of one commentator creates ”hellish disadvantages” for them.
However, the Constitutional Court has accepted that defection is constitutional, and politicians are therefore free to change allegiance.
Max’s advocate Geoff Budlender said his client’s floor-crossing intentions are totally irrelevant to the case, which is not an abuse of the court process, but an exercise of his rights.
”The question is not if Max behaved well or badly,” he said. ”The questions are questions of law.” — Sapa