DA loses floor-crossing appeal

Cape Town High Court Judge Burton Fourie dismissed the Democratic Alliance’s floor-crossing appeal with costs on Monday.

This means the DA has lost its fight to have the National Assembly seats of Dan Maluleke, Richard Ntuli, Enyinna Nkem-Abonta, Bheki Mnyandu and Craig Morkel retained by the party.

The seats were lost during the floor-crossing period last month when Maluleke, Ntuli, Nkem-Abonta and Mnyandu crossed from the DA to the African National Congress. Morkel, who made up the 10% needed to effect the crossing, formed his own Progressive Independent Movement party.

The DA’s chief whip, Douglas Gibson, said the party is disappointed but will not appeal the decision.

“The Democratic Alliance disagrees with the verdict, with respect to the judge, but we are not going to fall into the trap that some other parties have fallen into of spending their time and their energy and their money in court.”

The DA’s counsel Jan Heunis had argued that because the five MPs all ceased to be members of the DA on different days during the floor-crossing window, they did not constitute 10% of the DA, individually or together, at the time they left the party.

Further, at least six DA MPs would have had to defect to make up the 10% requirement, as the party had gained two MPs—one each from the United Democratic Movement and Inkatha Freedom Party—early on in the window period, bringing the DA seats to 52 instead of 50, he said.

Deon Irish, counsel for the ANC and the four MPs who defected to the party, countered it was fully within the MPs’ rights to take the whole window period to decide on their future.

He said an MP could do what he or she liked during the window because, according to his interpretation of the legislation, nobody could touch him or her.

“During each window period, no party can sack or discipline any member who belonged to their party,” he said.

On Monday, Fourie ruled in favour of this argument.

“In my view, the intention of the legislature in providing a window period in these terms was to freeze membership of the National Assembly for a period of 15 days, during which a member who wishes to change his or her party allegiance would nevertheless retain his or her seat in the legislature,” Fourie said in his written judgement.

He said it is clear the Constitution protects members from suspension or disqualification by a party “during” each window period.

“It follows, in my view, that the 10% threshold requirement has to be determined in accordance with the composition of the National Assembly immediately prior to the commencement of the relevant window period,” he said.

He argued if the DA’s interpretation of the law were to be adopted, the threshold requirement of 10% would be subject to constant change.

“This would, in my view, gives rise to unreasonable, unjust and even absurd consequences, as members of a party who wish to defect would be confronted with an ever-changing (and possibly unknown) threshold requirement.”

Fourie contended a variable threshold would frustrate the purpose of the floor-crossing legislation.

He dismissed the DA’s application and ordered it to pay the legal fees for National Assembly Speaker Baleka Mbete, the ANC and the ex-members, except Morkel’s.

Gibson said he is not sure how much this battle will cost the DA, but believes “knowing lawyers, a lot”.

The ANC’s chief whip, Mbulelo Goniwe, said his party is very pleased with the outcome.

“We feel we have been vindicated because we stuck to the law and won,” he said.—Sapa

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