Crossing the Floor legislation: hearings & deliberations

Meeting report

PORTFOLIO COMMITTEE ON JUSTICE; PORTFOLIO COMMITTEE ON PROVINCIAL AND LOCAL GOVERNMENT; SELECT COMMITTEE LOCAL GOVERNMENT AND ADMINISTRATION; SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS: JOINT MEETING
14 May 2002
CROSSING THE FLOOR LEGISLATION: PUBLIC HEARINGS

Chairpersons: Adv J H De Lange (ANC)
Mr YI Carrim (ANC)

Documents handed out:
Submission by SALGA (Appendix 1)
Submission by WECLOGO (Appendix 2)
Submission by the IEC (Appendix 3)
Submission by the Western Cape Provincial Government
"Crossing the floor" legislation (as Certified) March 2002
Constitution of RSA Amendment & Second Amendment Bills, 2002
Local Government: Municipal Structures Act
Local Government: Municipal Structures Amendment Bill

SUMMARY
The Committee is seeking to pass legislation to allow Members to cross the floor to another political party without losing their seat in the legislature. The Committee was therefore convening public hearings on the proposed legislation. The Committee heard submissions from SALGA, WECLOGO, the IEC and the Western Cape Provincial government.

The Committee deliberated briefly on the hearings. The parties' positions appeared as follows: IFP opposes the amendments; ACDP opposes the amendments; DP supports in principle; NNP supports in principle; ANC supports in principle

MINUTES
Presentation by SALGA
The South African Local Government Association was represented by Councillor MD Dikoko, the Executive Mayor of the Southern District Council, with Councillor Lebona, Ms Pillay and Councillor Mokgathle.

SALGA accepted the principle that a councillor who crosses the floor should retain his or her seat within the framework of the amendment bill. But they thought there was no need for the Constitution to contain such an elaborate scheme to regulate the crossing of the floor as this could have been dealt with as an amendment to the Municipal Structures Act. They also felt that crossing the floor could influence the proportionality of committees in Council and further stated that councillors who represent local municipalities should only cross at a local level because they were representing local municipalities and not political parties.

In their view, if there was a need for crossing the floor it must be done once a year and preferably in September. The Councillor went on further to comment that the term "simultaneously " as used in Clause 158(2)(a)(ii) be deleted and they use the 10% as the sole criterion. They further felt that the IEC should deal with the matters dealt with in Cl 158 (6)(b) and not the Municipal Manager.

The Chairperson asked what the rationale was for one to become independent. Did they want to do away with the 10% criterion or were they stating that Ward Councillors should be able to cross if they where part of the 10%?

Councillor Dikoko referred to the Electoral Act, which makes provision for Ward Councillors to be independent. If they wanted to join a party, that was up to them, but equally if a Ward Councillor came in as a party and then wanted to stand as an independent there should be room for this. Further, they wondered as to why there should be this 10% criteria, why could an individual not make his own choice? If he wanted to leave, then he should be left to go.

Mr YI Carrim stated that at the moment the PR system did not allow for independence, only the Ward Councillors could be independent.

Councillor Dikoko stated that their presentation highlighted two critical sentiments, these being the issue of elaborateness and secondly the practicalities that this will bring. They had alluded to the fact that if within three years people were to move six times this would lead to instability.

Mr Carrim asked as to what extent there was municipal instability at present and whether this law would exacerbate the problems.

Ms GM Borman (DP) asked SALGA whether they had an idea as to the percentage of municipalities that would be affected, as one would imagine that the instability would come from those with smaller numbers.

Dr JT Delport (DP) commented that if an independent could become a member then technically an independent could form a party. What did they mean when they spoke of instability?

Mr S.N.Swart (ACDP) stated, on the question of instability, at Paragraph 3 of their submissions they had stated that the committee would be 'hamstrung'. At what level would this affect service delivery?

Mr D.Dlali (ANC) stated that at Paragraph 4 of their submission SALGA made an interesting point that at a district level the councillor's should not cross. What if the particular councillor formed part of the 10% at the local level and was interested in crossing, since he would not be crossing parties at the district level but at the local level? What would their views on this be?

Mr J.H.Jeffery (ANC) wanted to know whether there were any amendments that would need to be made to deal with the consequences that could arise from crossing the floor at the Provisional and National level. He further wanted to know their views in regards to the stability aspect particularly in relation to the smaller councils, as it would make it difficult for them to cross.

Ms S.M.Camerer (NNP) referred to Paragraph 3 of SALGA's submissions wanted to know how the proportionality would be affected.

In response Councillor Dikoko stated that in regards to the proportionality in formulating a committee, they were concerned that there could be an instance where there would be a committee existing, but if there was a swing the whole compilation would change in terms of the majority. This could also apply to District Councils, where you found that the District was led by ANC but a specific local by IFP, while the representation was supposed to be proportional.

On the issue of instability, Councillor Lebona stated that due to whatever disgruntling elements, there would be the desire to cross over. There were also a number of other issues that contributed to instability; such service delivery, the balance of power would change. Priorities would be affected as the new crowd would want to change the ideas on what should be the priority, this would as a result affect the yearly budget plan which might need to be changed and further possibly who should be the municipal manager. It would become expensive.

Councillor Dikoko stated that they were cognisant that they were dealing with problems of the Western Cape, out of the nine provinces this issue of crossing was in seven and a half provinces, it therefore should not be an issue of SALGA.

On the issue of the issue of the District council they stated that they did not necessarily have to tamper with the 60% but if the local level is dictating otherwise it would affect the way in which the local municipality appointed its representatives. On the issue of the consequences they had not done a research on the spin off but they would look into it.

Presentation by WECLOGO
WECLOGO, represented by Mr Evans, stated that in principle they were not opposed to the proposed introduction of the constitutional and legislative amendments allowing local government councillors to cross the floor without losing their seats on a municipal council, as this was consistent with international democratic practice. But they had comments on the policy issues arising from the draft legislation, on the government structure and on the ambiguities in the draft legislation. WECLOGO had no constitutional or legal challenge to the amendments. They felt that most of the detail in the bill could be dealt with in national level legislation. The crossing should happen only once a year in September as this would be within the new budgetary year.

Ms Camerer questioned WECLOGO's submission on the issue of protection during the fifteen days. What was the extent of this protection?

Ms Seaton (IFP) stated that they heard a lot about morality and democracy and the problems that would arise from this legislation, could they give their view on this.

Dr Delport wanted to know what their view was as regards the use of the 10% of ward councillors in any event crossing the floor. What was the rationale in having the 10% and not addressing the problem, of not wanting instability.

Mr Jeffery posed the question on the 'simultaneous' issue. If they removed 'simultaneous' they could not have a situation of crossing to another party at the end of the fifteen day period and expecting the 10% to be made up. If at the end of the fifteen day period they had not made up their seats and lost the 10% they would have to start again. Would this not be a reason for leaving in the term 'simultaneous'?

Dr Delport (DP) questioned the fifteen day protection, which he felt was not necessary as decisions for crossing the floor were premeditated, if they were talking about crossing with their seal then that was a different issue.

Mr G Grobler (DP) stated that September was a favourable period for crossing, why then did they make the window period September?

In response WECLGO stated that they saw the protection as a double-edged mechanism, for the fifteen day window period and as a potential defence in disciplinary proceedings, when a member is subsequently disciplined. On the issue of the wards, they agreed that the ward situation was different from the list situation. The ward represented a constituency and if it crossed the floor without its constituency, then the only remedy would be a political one, in the sense there was a bigger consequence for a ward councillor if he crossed the floor.

WECLGO believed that in order to support the method there needed to be a trigger mechanism. Legislation needs to provide that council meetings can not be held within the 15-day period. Where any steps are taken in pursuit of Cl 158 (a) a council meeting should be called as it may avoid any party trying to manipulate the council by calling a meeting. This will hence create legal certainty. By removing the word 'simultaneous' we come right back to the 15-day window period.

Presentation by the Independent Electoral Commission
The Independent Electoral Commission (IEC) proceeded to present its comments on the four bills dealing with the crossing of the floor and the merging and subdivision of the parties' issue. The IEC was represented by Adv SS Van der Merwe who stated that the commission did not support the bill specifically due to the reasons sat out in paragraphs 1.1; 1.2; 1.3; 1.4; 1.5 of their presentation.

The implication of this new system would mean that one person could out vote the 50 000 people who had voted him in. On the technicalities that arose from this Bill he stated that normally a party must be registered before the elections but there is no existing legislature to the effect that a party can not use another parties name. To register as a party takes 90 days. But if you want to keep your negotiations secret it would be difficult to do so for the period of ninety days. There is no guarantee that the party by name or acronym will be different from the other. If this problem is to be alleviated they may need to amend the Commission Act so as to protect the existing parties in that Act, so that existing parties can deal with the issue of crossing over. The other technicalities are things that could be sorted out on a technical aspect, as they were not policy.

Mr Carrim wanted to know whether they had any proposed amendments to the proposed Bill.

Adv SS. Van Der Merwe stated that with the principle problem they had with the Bill they could not implement crossing of the floor in the system.

The Chair asked whether the crossing of the floor bill should be done at municipal level.

Adv SS.Van der Merwe stated that it should be as was at present. The administration of the system would be difficult.

The Chair asked the IEC who should be the link if people were to walk over from the provincial level.

Adv. SS Van der Merwe stated that at the moment it was the secretary of Parliament and it should remain that way.

Mr S.E.Pheko (PAC) stated that having gone through the submissions of the IEC he had not heard them talk of the 10% and 15 days protection period. In their view who did it protect: the individual or party interests? He added that people do not understand election procedures. He felt that they were playing with people's emotions because by walking over, the people would not enjoy the benefit of the seat.

Mr P Uys (NNP) stated that he did not understand the issue. In his understanding you could not cross the floor unless you were crossing to a party under the Structures Act: the vacation of office was linked to the Constitution.

Mr Carrim stated in response to this comment that one could leave a party and join or create a new party. In fact a party can subdivide, Mr Uys' suggestion seemed to imply that one could only join an existing party.

The Chair commented that legislation gives allowance for the subdivision and merger of parties, but this would have to read in terms of the legislation.

Mr Jeffery commented that effectively the main part of the IEC's submission was that the Bill did not fit in with the current legislation, though would it be inconsistent. In local elections the voters have voted for a party and find that party is not what they thought it was. If Parliament was to make a policy decision that it will pass these laws what other unforeseen consequences did they feel needed to be addressed?

The IEC responded to the questions through Adv SS Van Der Merwe by stating that the 15 days had not been considered because of their principle problem, it was therefore immaterial.
It appeared from the Bills that they did not have to walk over to a registered party which could cause problems, and the protection would not apply. On the issue of subdividing they did not know a party could subdivide itself, they knew how it could divide itself. As to whether the amendment would be inconsistent with the Constitution they had not gone into it.

Western Cape Provincial Government Submission
Minister Doman indicated that the Western Cape Provincial Government wholeheartedly supports the intention of the bills in discussion. They do not question the constitutionality of the bills and the legal opinion of his government was contained in paragraph 17 of their submission. They believed that changes could only be made by majority vote.

With respect to the composition of the Metropolitan Sub-councils; they argued that the bills do not make provision to recompose Metropolitan sub-councils when crossing the floor occurs. Accordingly they propose that a provision to recompose within 30 days should be made.

With respect to District Municipal Councils, Minister Doman explained that there is a provision on the Municipal Structures Act for recall and that this provision can be used for recomposing the District Councils. However they recommend that the Municipal Structures Act make provision for this.

Lastly, they recommended that the law should compel municipal managers to call a meeting in the fourteen days after crossing of the floor has occurred so that the council can reconstitute and elect office bearers. He explained that municipal councils meet once a quarter and that there is a need to put things back to normal as soon as possible subsequent to crossing of the floor.

The Chairperson immediately expressed his personal disagreement with the conclusion (Part A) that the Constitution is not being amended.

Discussion
The Chairperson asked Minister Doman's view on the frequency of crossing the floor (once, twice or three times a year) and the required percentage suggested (10%) for members to cross the floor, taking into account issues of stability and so on.

Minister Doman indicated that he did not have a mandate from his government on the issues raised by the Chairperson. However, he stated that from Local Government perspective crossing the floor more than once a year will be very disruptive. Accordingly he personally supports once a year (in September) crossing of the floor.

Minister Doman stated that his government makes no issue on the percentage question and that the impression is that it is acceptable. He also said that the person attempting to canvass for the required percentage in the 15 days window period will be vulnerable if it happens that he does not get the required support.

When asked by the Chairperson whether crossing the floor should apply to both ward and PR councilors, he stated that they hold no strong views on the percentage issue. But it should apply to all Members be it ward councilors or proportional representatives.

Dr Delport questioned Minister Doman on the rationale behind 10% if ward councilors can cross the floor and the meaning and measure of instability in the Western Cape if crossing of the floor was to take place.

Minister Doman indicated firstly that in 30 municipalities in the Western Cape only four are led by big majorities. On the basis of this any walk over in other municipalities will create a shift in the balance of power. He expressed his shared sentiments with Dr Delport to restrict opportunities and do away with 10% requirement. Instability occurs because of canvassing for positions, the decisions that need to be taken within the 15 days period and the fact that municipal personnel will fear for the future of their positions.

The Chairperson pointed out that crossing the floor should not be treated as when a vacancy occurs in the council and if the council changes then sub-councils will be affected.

Minister Doman said that crossing the floor should be linked with sub-councils reconstitution. He argued it might seem logical that there will be changes in sub-councils but may not be the case in practice. He strongly felt that there should be a link if you want to reconstitute. He also restated that District councils have an avenue in recall provision in the Municipal Structures Act but no provision for sub-councils and reemphasized the their recommendation on calling the meeting of the council in 14 days and the legislative provision for sub-council.

The Co-chair noted that there is a need that where there is slightest uncertainty the Committee and the legislation should be very explicit.

Ms Borman asked how the new legislation would affect municipal managers when there is so much at stake in terms of salaries and so on.

In response Minister Doman explained that Managers have contracts with the municipality and that when such contracts end there is negotiation for renewal of the contract. He conceded that there will be a need to look at the length of the contract that municipal managers have (whether the option is lengthy period contracts or normal contract). Furthermore Minister Doman stated that shift of power might often result contracts being affected or renegotiated. The Chair noted that he acknowledges the seriousness of the municipal managers contract issue as it may lead to instability and opportunities for power struggle. He however requested the meeting to discuss this issue later noting the need to minimise further chances of instability.

Rev Goosen questioned Minister Doman on how the issue at hand will affect the municipal administration.

In response Minister Doman indicated that he hoped it would not affect the administration, but further noting that it depends on whether the council allow politics to play a major role in their municipality. The Co-chair explained that there is no relationship between crossing the floor and contracts of municipal managers. Municipal managers have a performance-based contract, therefore a shift of power is not necessarily related to contracts of municipal managers. He noted that the general view is that the municipal manager should remain after crossing the floor has occurred.

Briefing by Dr Petra Bouwer (Department of Provincial and Local Government)
On resumption of the meeting the chair invited Dr Bouwer to brief the committee about the court case. Dr Bouwer explained that the opposition parties had taken the government to court challenging the fact that they are not represented in Mayoral Committees. The court has ruled that Mayoral committees are not committees of council therefore it is not a constitutional requirement that all parties be represented in Mayoral Committees.

The co-chair explained the difference between Collective Executive systems and the Executive Mayoral system stating that in Collective Executive committees constituted on the basis of proportional representation of committees and that in Executive Mayoral the majority party choose the mayor and the mayor appoints mayoral committees. He further explained to the meeting that opposition parties claimed that it is unconstitutional to have single party Mayoral Executive committees, which the court ruled against.

The chair asked where the sub-councils are placed. it was explained by the co-chair that sub-councils are specific structures not equivalent to committees.

A Member requested clarity on the uniqueness of governance at local level, specifically if there is clear distinction between the executive and the legislature and also whether councils exercise both or not.

Dr Bouwer explained that both executive and legislative functions are vested constitutionally on the council. A Member asked the extent to which municipal councils could delegate powers to sub-councils. Dr Bouwer explained that Section 160 (2) of the Constitution outlines the functions and powers that may not be delegated and that municipalities must develop systems to delegate. The Co-chair explained further that in collective executive systems delegations is to the executive as a whole and that in Executive mayoral systems the mayor delegates.

Ms Chohan-Kota requested explanation on the nature of sub-councils. The chair noted that section 64 functions of metro-councils are more of administrative entities. The Co-chair explained that sub-councils are different and not the same as committees.

Mr. Barker made a comment on the composition of sub-councils but the chair requested that the matter be discussed later.

Adv. Masutha mentioned that sub-structures and sub-councils are constitutional in the sense that they are referred to in the constitution. The Chair confirmed to Mr. Mzizi that the case has been finalised.

Deliberations
The Chair explained that usually after submissions departmental personnel summarizes all submissions before deliberations, noting that because of time and other issues this procedure will not apply. He explained that the Committee would apply a structural approach to deliberate on the bills. Members need to take issues up with their caucus structures first although he encouraged members to raise issues of concern. He further explained that Municipal Structures Act and the issue of the NCOP should be set aside for now as they will be discussed together at a later stage. He invited parties that are opposed to the bill in principle to articulate their positions.

Ms Sybil Seabon of the IFP stated that the IFP is opposed to the amendments and that the IFP will challenge the constitutionality of the amendments. She stated further that the IFP believes if people want to change parties it should happen through elections not crossing the floor. As points of addition Mr. Mzizi noted that due to the PR elections system crossing the floor will cause havoc since no person can claim to have a constituency but political parties. He noted that as far as District councils are concerned the issue of Amakhosi was not dealt with. He argued strongly that the role of the Amakhosi has not been resolved but a new issue in crossing the floor is brought forth. Further stating that the new legislation will demarginalise black people and that it is a Eurocentric rather than an African approach. He expressed the need to change the electoral system and that the IFP has long been against the bills in discussion.

The Chairperson noted that he would convey the issue of the Amakhosi to the Minister.
On behalf of the ACDP Mr. S Swart stated that his party is opposed to the crossing the floor noting that it is premature to decide on this issue when the Van Zyl Slabbert Commission is still looking the electoral system. He noted that Crossing the floor does not take into account the concern of the electorate.

The Chair noted that there is a need to look at what is happening in the real world and that there some merit also noting that he hopes that there will be fuller discussion on the issue.
On behalf of the Democratic Party Dr. T Delpoort explained that his organisation supports in principle crossing the floor as an inherent part of democracy. He noted that however before amendments to the legislation are made the fact that crossing the floor can cause disruption, corruption and instability must be addressed. He further noted at the moment that are some remedial mechanisms to the concerns raised. Firstly, is the question of how many times do you have a window period in a year is of paramount importance. Further stating that they support crossing the floor once in the middle of government tenure. Secondly, the 10% issue does not address the real problems, noting that it does not deal with parties evenhandedly in the sense that it makes easier for people in smaller parties to cross but almost impossible for people in bigger parties. In general his party provide qualified support and may have to vote against the suggested legislation amendments and that they are willing to negotiate over this issue.

The chair asked for clarity from Dr Delpoort on whether they do not support 15 days window period after the Act come to play or they will still argue for the middle of five years window period even in the first occasion of the Act coming to play. Dr Delpoort noted that his party would have to look at this matter.

On behalf of the NNP Ms. Camerer noted three points;
NNP supports crossing the floor in principle
A need to find a way that would minimise destabilisation
A need to avoid constitutional challenge.
She noted that there is a consensus that crossing the floor should not happen more than once a year and that her party is open minded on the frequency and the number of people allowed crossing the floor and the need to avoid disruption.
The Chair spoke on behalf of the ANC: their position is contained in the bills and that they noted the concern raised by other parties. He hoped for extensive deliberations on issues raised.

The meeting was adjourned.

Appendix 1:

SALGA
South African Local Government Association
CAPE TOWN OFFICE

SUBMISSION ON THE CONSTITUTION OF THE RSA AMENDMENT BILL
2002
GENERAL COMMENTS
1. SALGA accepts the principle that a councillor who crosses the floor will retain her or his seat within the framework of the amendment bill.
2 .We are of the view that there is no need for the Constitution to contain such an elaborate scheme to regulate the crossing of the floor. This could more appropriately be dealt with as an amendment to the Municipal structures Act. This will also be in line with the approach adopted in the Loss or Retention of membership of National and Provincial Legislatures Bill, 2001 that is an ordinary piece of legislation. Such an approach will also facilitate possible future amendments that may arise as a result of possible practical difficulties that may be experienced later on in the application of the Act. We submit that the only provisions that should be enshrined in the Constitution is firstly, the right to cross the floor without losing membership of a Council and second, the frequency of crossing.
3. The crossing of the floor may influence the proportionality of committees in Council. The amendment is not clear on the possible consequences for the composition of committees as a result of the crossing of the floor of councillors. It must be stated explicitly what the effect would be as there could be differing interpretations which could result in committees being hamstrung in their operations
4.The Bill is silent on the position of councillors at district level who represent local municipalities. SALGA submits that such councillors must not be allowed to cross at district level because they are not representing political parties but local municipalities. Such councillors would have the right to cross at local level should they so wish. The right to recall a councillor will remain in place for the local municipality to invoke should the need arise.

SPECIFIC COMMENTS
5.There must be a common understanding on the meaning of the word simultaneously" as used in section 158(2)(a)(ii). It is potentially confusing because it is not clear whether it means that all defecting councillors must cross at the same time in the window period. Should it mean that they must all defect at the same time it would make no sense in the light of the window period of two weeks. It is suggested that the term be deleted so that the 10% can be the sole criterion that can be judged after the window period.
6.Section 1 58(6)(b) allocates certain responsibilities to the municipal manager. Provisions of a similar nature are found in the Municipal Structures Act that deal with the consequences of elections and where there is a change in representation. The lEO is in terms thereof, the designated body to deal with such matters. SALGA submits that this role must likewise be allocated to the lEG and not to the municipal manager
7.Section 158(2)(a) and 158(3)(a) reflects a difference in consequence between a Ward Councillor and a PR Councillor when they cross the floor. In terms of those clauses a Ward councillor who crosses and chooses to remain independent shall retain the seat whereas the PR Councillor who crosses MUST join or form another party in order to retain the seat. It is not clear whether this distinction is deliberate and what the rationale behind it is. There appears to be no reason in principle why a PR councillor cannot become an independent councillor.

Appendix 2:

WECLOGO COMMENTS SUBMITTED BY
THE WESTERN CAPE LOCAL GOVERNMENT ORGANISATION (WECLOGO)
ON THE LOCAL GOVERNMENT: MUNICIPAL STRUCTURES AMENDMENT BILL, 2002
AND THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL, 2002

INTRODUCTION
WECLOGO represents local government in the Province of the Western Cape and as
Such represents a range of diverse political interests. Its aim in commenting on the Local
Government: Municipal Structures Amendment Bill, 2002 ("the Structures Amendment Bill"), and the Constitution of the Republic of South Africa Amendment Bill, 2002 ("the Constitution Amendment Bill"), is that it wishes, in order to represent local government responsibly and in order to promote stability and good governance in the local government sphere, to avoid the introduction of potentially impractical and confusing legislation pertaining to local government.

WECLQGO is in principle not opposed to the proposed introduction of constitutional and legislative amendments allowing local government councillors to cross the floor without losing their seats on a municipal council as a step towards deepening democracy, having regard to the fact that this is consistent with international democratic practice. WECLOGO has considered the draft legislation containing the floor-crossing provisions and wishes to submit comments on, firstly, policy issues arising out of the draft legislation which, in their practical implementation, may undermine good governance in the local government sphere or which do not adequately capture the principles which the legislation is designed to achieve; secondly, an issue relating to local government structures; and thirdly, certain ambiguities in the draft legislation.

3. Inasmuch as the Structures Amendment Bill and the Constitution Amendment Bill both contain provisions addressing crossing of the floor and ought really to be read together, WECLOGO has commented on both bills in this submission.

POLICY ISSUES

4. In terms of Section 158A(5) of the Constitution Amendment Bill, councillors who wish to change their party membership and parties which wish to merge and/or subdivide will have the protection of the floor-crossing provisions for a limited period in FEBRUARY and SEPTEMBER every year, i.e every six months (although in terms of Sections 1 58A(2), (3) and (4), they will not be protected during the first twelve months following a municipal election nor during the twelve months preceding the next municipal election). One of the fundamental features of the Structures Act is that it encourages stable local government. This is particularly important in the light of the protracted and difficult process of local government transition which municipalities have been through. Stable local government facilitates good governance at a local government level and makes it easier for municipalities to fulfil their constitutional obligations, including the delivery of services, the promotion of social and economic development and so forth. As has been mentioned above, WECLOGO is in principle not opposed to the introduction of floor-crossing legislation; WECLOGO questions, however, whether every six months is the appropriate frequency - it may be, for example, that allowing floor-crossing once a year strikes a better balance between promoting local government stability and facilitating councillors' changed political allegiances.

5. Moreover, the timing of the window-period during which floor-crossing is protected is of great practical importance to local government: changes in government (and even the possibility of changes in government ie merely the imminence of the window-period)
during the period when a municipality is preparing and passing its budget would, we suggest, hinder the municipality's budgeting process. We therefore suggest that the fifteen-day period should take place only in SEPTEMBER, which is a relatively quiet time in the municipal financial year, so that municipalities can more easily weather any disruptions brought about by councillors crossing the floor.

6. Section 158A(5)(c) of the Constitution Amendment Bill highlights the need for the party membership of councillors to be protected from suspension or termination by their nominating parties during the fifteen-day floor-crossing periods. WECLOGO is concerned that further protection may be required for councillors outside the fifteen-day periods. The proposed amendments open the door for local government councillors to change their political allegiance - indeed, the amendments create a constitutional right for councillors to do so - and it is arguably an integral part of the political process of changing allegiances that councillors be able to mobilise amongst each other and caucus openly, without fear of disciplinary action being taken by their nominating parties. This is particularly so where the legislation stipulates minimum threshold percentages in order for defecting councillors to retain their seats. WECLOGO would support, in the spirit of openness, legislative recognition of the need for councillors to be protected at all times from termination or suspension of their membership or other disciplinary action where they wish to mobilise for the purposes of crossing the floor.

LOCAL GOVERNMENT STRUCTURES

It appears that the drafters of the two Bills have not given careful consideration to the implications of the Bills vis-a'-vis local government structures.

Section 160(8) of the Constitution gives certain rights to members of a municipal council in regard to their participation in council and committee proceedings - most importantly, that they are entitled to participate in a manner which allows parties and interests reflected within the council to be fairly represented. It is unclear from the Structures Amendment Bill whether, when the composition of a municipal council changes as a result of councillors crossing the floor, Section 160(8) needs to be complied with afresh in respect of sub-councils - in other words, whether sub-councils should be recomposed in order that they continue to comply with Section 160(8). Although the case of a council's executive committee is dealt with in terms of Sections 43, 46, 47 and 53, read together, of the Structures Act, WECLOGO suggests that additional provisions be added to the Structures Amendment Bill in order to clarify the position with regard to a council's sub-councils and other committees.

DRAFTING ISSUES

9. In terms of Section 1 58A(2)(a)(ii) of the Constitution Amendment Bill, a list councillor who leaves the nominating party and joins another party must, in order to remain a councillor, "himself or herself, or together with one or more other councillors who simultaneously ceased to be members of the nominating party, [represent] not less than 10 per cent of the total number of seats held by the nominating party" (emphasis added). Certain questions arise from this provision:

9.1 What is meant by "simultaneously"? Is it sufficient that, in respect of the required number of councillors, each councillor's membership of the nominating party ceases on the same day? Would it be sufficient if each councillor's membership ceases during the same fifteen day protected period? We suggest that the wording be clarified.

9.2 The timing of councillors' leaving their nominating party is a determining factor in whether or not such councillors will retain their seats: the requirement is that councillors representing at least 10 per cent of the nominating party's total number of seats "simultaneously [cease] to be members of the nominating party". How will councillors who wish to take advantage of Section 1 58A(2) be protected against obstructions raised by the nominating party? For example, a nominating party could refuse to consider or accept or could delay considering or accepting a member's resignation notice and could thus frustrate the operation of Section 158A(2).
9.3 Must the required 10 per cent be made up of list councillors only or may it comprise list and ward councillors?

9.4 Where 10 per cent of the total number of seats held by the nominating party is a fraction (for example where the total number of seats is 13 and 10 per cent is therefore 1.3), should the fraction be rounded off to the nearest whole number or should it always be rounded up?

10. Moreover, the draft legislation does not make it clear whether the "other party" referred to in numerous places in the Constitution Amendment Bill must be a party already represented in that council, or may be a party not yet represented in the council. The legislation ought to make this clear.

CONCLUSION

11. In conclusion, we reiterate that we are raising these concerns constructively and with a view to facilitating good governance. With this in mind we would welcome the opportunity,
firstly, to address the relevant Portfolio Committees so that these concerns can be more fully
explored; and, secondly, to give consideration to revised drafts of the Bills.

Appendix 3:

INDEPENDENT ELECTORAL COMMISSION

Dear Minister

The attached document is hereby submitted in response to general notice no 335
of 2002 in which comment is invited on the Constitution of the Republic of South
Africa Amendment Bill, 2002 and the Constitution of the Republic of South Africa
Second Amendment Bill, 2002.

The document contains the Electoral Commission's comment on the groups of four bills dealing wit
the crossing of the floor and the merging and subdivision of parties issue. A copy will also be
submitted to the Minister for Local Government and it will be appreciated if a copy could be
Chairperson of the Portfolio Committee on Justice and Development.

Provincial and handed to the Constitutional

Yours sincerely

BH BAM CHAIRPERSON

ELECTORAL COMMISION
Constitution of the Republic of South Africa Amendment Bill, 2002;
Constitution of the Republic of South Africa Second Amendment Bill,

2002;
c) Loss or Retention of Membership of National and Provincial Legislatures Bill, 2001; and
(d) Local Government Municipal Structures Amendment Bill, 2002.

Introduction

The electoral commission formulate and submits comment on the four bills against the background of -
(1) section 4 of the Electoral Commission Act, 1996 which describes the objects of the Commission as being the strengthening of constitutional democracy and the promotion of democratic electoral processes; and
section 5 of the Act describing the functions of the Commission to include "to continuously review electoral legislation and propose electoral legislation, and to make recommendations in connection therewith".

1Present Electoral System

1.1 The members of the National Assembly and of the provincial legislature were elected in 1999 in accordance with a proportional representation system prescribed in the Constitution. Only parties in terms of the electoral Commission Act, 1999 , could contest the election; they did so by submitting a list of their nominated candidate which were made
available for inspection and objections could be filed in respect of any of the nominations.

1.2 The names of the parties that submitted candidates lists appeared on the ballot papers and voters voted for the parties of their choice. The number of seats won by each party was determined proportionally to the number of votes cast for that party. The seats won by successful parties were then filled from their candidates lists, starting from the top of the lists.

1.3 Citizens voted primarily for the party of their choice and by implication also for the nominated candidates in the order of preference in which their names appeared on the lists. The names of candidates, however, do not appear on the ballot paper, only that of the party. In general, voters therefore voted for a party and its leader, not so much for the candidates on the party list, whom the vast majority of voters did not know.

1.4It is a cardinal principle of the PR system that elected members vacate their seats when they resign from their party or lose their party membership. The vacancy is filled from that party's list. Parties thus retain the number of seats voted to them until the next election. Members cannot cross the floor (join another party) and thus leave parties with more, or less, seats than they received in an election (which could even result in a party losing or gaining the power to govern). The system thus ensures that the will of the people, as expressed in an election, cannot be negated and substituted by the will of an individual (or a group of individuals). This is the main underlying principle of a pure PR (party list) system.

1 .5 In local government (in general and with the exclusion of district councils and councils without wards), half the members of a council are elected on the same PR (party list) system. The other halt of the members are elected in first past the post ward elections (either as independents or having been nominated by a party). Members cannot cross the floor. A member elected on a party list, vacates the seat should he or she lose their party membership and is replaced by a candidate on that party's list. A ward member nominated by a party also vacates the seat if he or she loses their party membership, but in that case a by-election takes place in the ward.

2 Proposed New System

2.1 The bevy of four bills now on the table seeks to introduce certain changes to this system, focussing mainly on Schedule 2 of the 1993 Constitution (still operative in terms of Schedule 6 of the current 1 996 Constitution) and sections 157 and 158 of the 1996 Constitution. The end result of the proposed changes seem to be the introduction of a contradictory mixture of systems (stradling both PR and first past the post principles) whereby the voter votes for a party, but thereafter the members are allowed to act as if they had been individually elected from constituencies.

2.2 The specific changes proposed by the four bills are as follows:

National Assembly and Provincial Legislatures

2.2.1 A member of the National Assembly or a provincial legislature may "cross the floor" and join another party. In doing so the seat occupied by that member becomes a seat of the member's "new party". Should a vacancy occur in that seat, the vacancy is filled from the party list of the "new party". The implication of this is that the proportionality as expressed by voters on election day will change.
2.2.2 A party represented in the National Assembly or a provincial legislature may (after the expiry of twelve months after the election) merge with another party or subdivide into more than one party. In this case, the seats of the members of the original party thereupon become seats of the new merged or subdivided parties. Vacancies in those seats are filled from the lists of the "new" parties.

2.2.3 Members may only cross the floor and parties may only merge or subdivide during a period of time determined by the President by proclamation in the Gazette. It is, however, possible that this proposal has been changed to one where crossing of the floor and merging and subdivision of parties may take place twice a year during two predetermined periods of fifteen days each.

National Council of Provinces

Should the composition of a provincial legislature be changed (in terms of number of seats held by each party) as a result of crossings of the floor or party mergers or subdivisions, that provincial legislature must re-determine the number of each party's permanent and special delegates in the National Council of Provinces.

Municipal Councils

The bill dealing with crossing of the floor and related matters in respect of municipal councils has not been drafted in the plainest of languages. As we understand it, it provides as follows

A Members of municipal councils that have been elected on the PR (party list) part of an election, may change their party membership (cross the floor). The seat held by that member then becomes a seat of his or her "new party" and future vacancies in that seat are filled from the "new" party's list.

Members who have been elected to represent wards -
on party tickets may change parties taking their seats with them to their new parties; or
on party tickets may leave the party and become independents taking their seats with them;
and
as independents may join a party and take their seats with them to their "new" parties;
Parties may merge, or subdivide, or merge with a subdivision of another party.
Members take their seats with them to any merged party or subdivided party that they may become members of. Such a crossing of the floor by members may only take place twice a year during two predetermined fifteen day periods and members may only leave a party if those leaving represent more than 10 per cent of the seats held by that party.
A party may only subdivide if the members leaving the original party represent not less than 10 per cent of the seats held by that party.
Nothing is said about the representation of local councils in district councils after such a reshuffling of parties and members.[See items 1 9 and 20 of schedule 2 to the Local Government Municipal Structures Act, 1998.]
Nothing is said about the effect on overall proportionality of such a reshuffling (eg ward
versus PR party representation). [See item 17 of schedule 1 to the Structures Act.]

3. Comment on Principle

National Assembly and Provincial Legislatures

3.1 The PR electoral system on which the members of the National Assembly and the provincial legislatures were elected in 1999 can be reduced to a very simple basic tenet : Voters vote for a party, parties are allocated seats in proportion to the number of votes they received, these seats (and any subsequent vacancies in them) are filled from lists compiled by the parties themselves. Under a PR system like ours, the number of seats that the voters voted to a party cannot be reduced or increased by the action of individuals. If an individual member can no longer live with the principles of the party (and he or she cannot persuade the rest of the party towards their point of view) the normal thing to do is to resign from the party, vacate the seat and join the party of her/his choice. This basic tenet is what distinguishes a pure PR (party list) system from a first past the post, single member constituency system.

3.2 In a PR system a party will not be able to "subdivide" because the "new" party or parties that would emerge from such subdivision would not have received a mandate from an election and would therefore not be representing voters. Furthermore, it would result in the reduction of the number of seats voted to the original party.

Similarly again, parties that merge amount to the formation ot a new party that people did not vote for. Parties represented in legislatures need not merge; if they want to govern together (or oppose together) they can do so by forming coalitions.

Legislatures are elected for fixed terms; five years in our case. Good governance requires at least some years of stability. Consideration must be given to the effect the proposed changes will have on good governance, more particularly the six monthly opportunities for parties to merge and subdivide (form "new" parties) and for members to move and thereby redistribute seats, between parties. Theoretically this could result in a new government every six months without an election. Consider in this regard the founding values of the Republic of South Africa described in section 1 of the Constitution, more particularly subsection (d)

"Universal adult suffrage, a national common voters roll, regular elections and a multi-party
system of democratic government, to ensure accountability, responsiveness and
openness

Municipal Councils

3.5 For municipal councils the above considerations also hold true for the portions of councils elected on a PR basis. Allowing ward representatives to cross the floor could be justified because these individuals are voted for in a first past the post system. The problem, however, is that in compliance with the constitutional overall proportionality requirement, votes cast for ward party candidates are also counted for the seat allocation in the PR part of the election. Furthermore, wards won by a party are deducted from the number of seats won by the party on the PR side. As long as this is the case, crossing the floor by ward representatives cannot be recommended. There may be a case to be made out for turning the municipal electoral system into a mixed non-compensatory system by freeing ward representatives from the overall proportionality requirement and allowing ward councillors to join or support any party of their choice. This is comparable to the case where, after a by-election, voters voted only for the person and not for the party, the result does not affect the PR allocated seats (see section 25(7) of the

Structures Act). This will, however, entail the introduction of a new mixed electoral system for
municipal councils.

3.6 In local government the instability created by regular opportunities for councillors to change sides and for parties to merge and to split will be much worse than nationally or provincially. There is a substantial number of small local parties represented in municipal councils. There is also a relatively large number of hung councils and councils where no one party holds an absolute majority. Such instability will invariably filter through to district councils from local councils.

3.7The administration of new parties arriving on the scene and of members crossing the floor regularly in municipal councils will be much more difficult than nationally or provincially. There are already many problems resulting from faction forming and power struggles within a number of smaller parties in local government.

Comment on technicalities and practicalities
The bills present a range of technical and practical implementation problems. Here are a
number of examples

A party must be registered before it can participate in an election. The required registration of parties serves a number of purposes eg parties' names and logos are protected. The merging and subdivision of parties are not made conditional on the pre-registration of the new parties to be formed. This can result in confusing party names and logos and in party names and logos that do not comply with other requirements of the Electoral Commission Act 1996. To factor in the required pre-registration of the parties to be formed by mergers or subdivisions, may play havoc with the prescribed timelines in the bills.
This is so because to form and register a new party may take 90 days. It may also negate the protection against expulsion given to party members who intend to leave their parties in the merging, subdivision and floor crossing processes [clause 2 of the Constitution of the Republic of South Africa Amendment Bill, 20021 Those intending to defect will not be able to conceal their intentions until the arrival of the 15 day period.

In the bills party lists from which vacancies are to be filled are confused with lists of party members in the legislatures [ibid].

Terminology used in clause 2 of the Constitution of the Republic of South Africa Amendment Bill, 2002 seems to indicate that the drafters have overlooked amendments to item 1 of schedule 1 of the Structures Act and that the drafters were not aware of the fact that in the case of municipal councils party lists and records of elected councillors are kept and maintained by the Electoral Commission and that the filling of vacancies from party lists is done by the Commission.

The deletion of subsection 27(c) and (f) of the Structures Act will leave members free to cross the floor and to retain their seats, even if expelled from their parties, at any time and not only during the predetermined periods. [Clause 1 of the Local Government: Municipal Structures Amendment Bill, 2002.]

It is difficult to imagine how a party will, in practical terms, go about "subdividing" itself and the bills do not shed any light on this question.

5. Conclusion
5.1 As said in paragraph 2.1, the end result of the proposed changes seems to be the amalgamation into one electoral system of conflicting elements of a mixture of systems (stradling both PR and first past the post principles) whereby the voter votes for a party, but thereafter the party
members of legislatures are allowed to act as if they had each been individually and independently elected to represent a constituency.

5.2 Would it not be better to leave the crossing of the floor issue to be factored into an overall review of the electoral systems for national, provincial and municipal elections.