United Democratic Movement v President of the Republic of South Africa and Others (African Christian Democratic Party and Others Intervening ; Institute for Democracy in South Africa and Another as Amici Curiae) (No 2) (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495; 2002 (11) BCLR 1179 (4 October 2002)

[12] Amendments to the Constitution passed in accordance with the requirements of section 74 of the Constitution^{^[6]} become part of the Constitution. Once part of the Constitution, they cannot be challenged on the grounds of inconsistency with other provisions of the Constitution. The Constitution, as amended, must be read as a whole and its provisions must be interpreted in harmony with one another. It follows that there is little if any scope for challenging the constitutionality of amendments that are passed in accordance with the prescribed procedures and majorities.

[13] It is not disputed that the First Amendment Act and the Second Amendment Act were passed in accordance with the special majority prescribed by section 74(3) of the Constitution and the special procedures for constitutional amendments prescribed by sections 74(4) to (9). The constitutionality of these two amendments therefore depends on whether or not they fall within the scope of section 74(3). It is only if they do not that a challenge to their constitutionality can succeed.

[14] There were in substance three grounds on which it was contended that the amendments do not fall within the purview of section 74(3). The first contention was that the amendments undermine the basic structure of the Constitution and for that reason are not sanctioned by any of the provisions of section 74. The second was that the amendments are inconsistent with the founding values of the Constitution set out in section 1, which can only be amended in accordance with the provisions of section 74(1). The third was that the amendments are inconsistent with the voters’ rights vested in citizens by section 19(3) of the Bill of Rights, which can only be amended in accordance with the provisions of section 74(2). These arguments, which are dealt with below, are also relevant to the constitutional challenges to the Local Government Amendment Act and the Membership Act.

The basic structure argument

[15] The applicants contend that the right to vote and proportional representation are part of the basic structure of the South African Constitution, and as such, are not subject to amendment at all. In support of this contention they sought to rely on the judgment of this Court in Premier of KwaZulu-Natal and Others v President of the Republic of South Africa and Others.^{^[7]} In that case Mahomed DP, in whose judgment all the members of the Court concurred, said:

“There is a procedure which is prescribed for amendments to the Constitution and this procedure has to be followed. If that is properly done, the amendment is constitutionally unassailable. It may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and reorganising the fundamental premises of the Constitution, might not qualify as an ‘amendment’ at all.”^{^[8]}

[16] After referring to decisions of the Indian Supreme Court which had grappled with this difficulty, Mahomed DP continued as follows:

“Even if there is this kind of implied limitation to what can properly be the subject-matter of an amendment to our Constitution, neither the impugned amendment to section 245 nor any of the other amendments to the Constitution placed in issue by the applicants in the present case can conceivably fall within this category of amendments so basic to the Constitution as effectively to abrogate or destroy it.”^{^[9]}

[17] Here too it is not necessary to address problems of amendments that would undermine democracy itself, and in effect abrogate or destroy the Constitution. The electoral system adopted in our Constitution is one of many that are consistent with democracy, some containing anti-defection clauses, others not; some proportional, others not. It cannot be said that proportional representation, and the anti-defection provisions which support it, are so fundamental to our constitutional order as to preclude any amendment of their provisions.

The founding values argument

[18] The applicants also contended that the disputed legislation is inconsistent with the founding values of the Constitution. The founding values are set out in section 1 of the Constitution which provides:

“The Republic of South Africa is one, sovereign, democratic state founded on the following values:

(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.

(b) Non-racialism and non-sexism.

(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.”

[19] These founding values have an important place in our Constitution. They inform the interpretation of the Constitution and other law, and set positive standards with which all law must comply in order to be valid. They are specially protected by section 74(1) of the Constitution which provides that section 1 may only be amended with the support of at least 75% of the members of the National Assembly, and six of the provinces in the National Council of Provinces.^{^[10]}

[20] It is contended that the two constitutional amendments are inconsistent with the founding values and, as they were not passed in accordance with the provisions of section 74(1) of the Constitution, they are invalid. In particular, it is said that their provisions and those of the Membership Act and the Local Government Amendment Act (both of which were passed as ordinary Acts of Parliament) are inconsistent with a multi-party system of democratic government and the rule of law.

[21] The argument as far as multi-party democracy is concerned, looks to the circumstances in which the Constitution was adopted; the decision then to base the first election on a list system of proportional representation in which floor crossing would not be permitted; the inequity of changing the system in mid-term; and the particular system of floor crossing for which provision is made in the Local Government Amendment Act, the Membership Act, and the two constitutional amendments.

[22] The argument as far as the rule of law is concerned is that the legislation does not serve a legitimate government purpose. It is contended that the legislation is intended and has been designed to serve the purpose of the ruling party, rather than to introduce a fair electoral system; in the case of the Membership Act, the provisions are said also to be irrational and to a large extent to have no practical application. The two arguments, though directed to separate values identified in section 1 of the Constitution, overlap.

Multi-Party Democracy

[23] The interim Constitution, which came into force on 27 April 1994, provided a transition from apartheid to democracy. It was replaced by the present Constitution adopted in 1996 by a democratically elected Constitutional Assembly. The relevant history of the two constitutions and the principles according to which the Constitution was drafted are referred to in detail in two judgments of this Court: the First Certification Judgment^{^[11]} and the Second Certification Judgment.^{^[12]} It is sufficient for the purposes of this judgment to mention only that the Constitution had to comply with the Constitutional Principles contained in Schedule 4 to the interim Constitution, and that this Court had to certify that this requirement had been satisfied.^{^[13]} This is relevant to some of the arguments that have to be addressed in this judgment.

[24] The first question that has to be considered is the meaning of the phrase “a multi-party system of democratic government” in the context of section 1(d) of the Constitution. It clearly excludes a one-party state, or a system of government in which a limited number of parties are entitled to compete for office. But is that its only application?

[25] The phrase is not a term of art. We were referred to no authority on political science or on the South African Constitution that offers a meaning of these words. Nor can any assistance be gleaned from commentaries on the South African Constitution. Most authors seem to regard the meaning of the phrase to be self-evident and to require no explanation beyond the words themselves.^{^[14]}

[26] A multi‑party democracy contemplates a political order in which it is permissible for different political groups to organise, promote their views through public debate and participate in free and fair elections. These activities may be subjected to reasonable regulation compatible with an open and democratic society. Laws which go beyond that, and which undermine multi‑party democracy, will be invalid. What has to be decided, therefore, is whether this is the effect of the disputed legislation.

[27] The applicants contend that the proportional representation system is an integral part of the Constitution, that the purpose of the anti-defection provision is to protect this system and that any interference with these provisions is an interference with the multi-party system of democratic government contemplated by section 1(d) of the Constitution.

Proportional Representation

[28] In support of this contention reliance was placed by the applicants on constitutional principle VIII which was one of the principles with which the Constitution had to comply. Constitutional principle VIII provides:

“There shall be representative government embracing multi-party democracy, regular elections, universal adult suffrage, a common voters’ roll, and, in general, proportional representation.”

[29] Significantly, however, section 1(d) of the Constitution incorporates all the provisions of constitutional principle VIII, save for the last requirement that refers to proportional representation. If it had been contemplated that proportional representation should be one of the founding values it is difficult to understand why those words were omitted from section 1(d). Textually, proportional representation is not included in the founding values. Nor, in our view, can it be implied as a requirement of multi-party democracy. There are many systems of multi-party democracy that do not have an electoral system based on proportional representation. The United States of America, India, and Canada are examples of constitutional states which fall into this category.

[30] The applicants contend, however, that an anti‑defection provision is an essential component of an electoral system based on proportional representation. This, so the contention goes, is necessary to ensure that the results of an election are not affected by the defection of persons who gained their seats in a legislature solely because of their position on the party list. It is the party, and not the members, which is entitled to the seats, and if a member is allowed to defect, that distorts the proportionality that the system was designed to achieve.

[31] There is a tension between the expectation of voters and the conduct of members elected to represent them. Once elected, members of the legislature are free to take decisions, and are not ordinarily liable to be recalled by voters if the decisions taken are contrary to commitments made during the election campaign.

[32] It is often said that the freedom of elected representatives to take decisions contrary to the will of the party to which they belong is an essential element of democracy. Indeed, such an argument was addressed to this Court at the time of the certification proceedings where objection was taken to the transitional anti‑defection provision included in Schedule 6 to the Constitution. It was contended that submitting legislators to the authority of their parties was inimical to

“accountable, responsive, open, representative and democratic government; that universally accepted rights and freedoms, such as freedom of expression, freedom of association, the freedom to make political choices and the right to stand for public office and, if elected, to hold office, are undermined; and that the anti‑defection clause militates against the principles of ‘representative government’, ‘appropriate checks and balances to ensure accountability, responsiveness and openness’ and ‘democratic representation’.”^{^[15]}

[33] This Court rejected that submission holding:

“Under a list system of proportional representation, it is parties that the electorate votes for, and parties which must be accountable to the electorate. A party which abandons its manifesto in a way not accepted by the electorate would probably lose at the next election. In such a system an anti‑defection clause is not inappropriate to ensure that the will of the electorate is honoured. An individual member remains free to follow the dictates of personal conscience. This is not inconsistent with democracy.

. . . . An anti‑defection clause enables a political party to prevent defections of its elected members, thus ensuring that they continue to support the party under whose aegis they were elected. It also prevents parties in power from enticing members of small parties to defect from the party upon whose list they were elected to join the governing party. If this were permitted it could enable the governing party to obtain a special majority which it might not otherwise be able to muster and which is not a reflection of the views of the electorate. This objection cannot be sustained.”^{^[16]}

[34] It does not follow from this, however, that a proportional representation system without an anti‑defection clause is inconsistent with democracy. It may be that there is a closer link between voter and party in proportional representation electoral systems than may be the case in constituency-based electoral systems, and that for this reason the argument against defection may be stronger than would be the case in constituency-based elections. But even in constituency-based elections, there is a close link between party membership and election to a legislature and a member who defects to another party during the life of a legislature is equally open to the accusation that he or she has betrayed the voters.

[35] We were referred in argument to a number of democratic countries with proportional representation systems in which defection is not allowed. No case was cited to us, however, in which a court in any country has ever held that, absent a constitutional or legislative requirement to that effect, a member of a legislature is obliged to resign if he or she changes party allegiance during the life of a legislature. In our view such a requirement, though possibly desirable, is not an essential component of multi‑party democracy, and cannot be implied as a necessary adjunct to a proportional representation system. Where the law prohibits defection, that is a lawful prohibition, which must be enforced by the courts. But where it does not do so, courts cannot prohibit such conduct where the legislature has chosen not to do so.

The anti-defection provision in the context of conditions in South Africa

[36] The interim Constitution made provision for a system of proportional representation for elections to both the National Assembly and provincial legislatures. In the case of local government, it required the electoral system to include both proportional and ward representation. The details were to be determined by legislation.^{^[17]} A transitional provision of the interim Constitution^{^[18]} provided that the first elections would be on the basis of 60% ward representation and 40% proportional representation. The electoral system for the proportional representation component of councils was to be

“according to the system of proportional representation applicable to an election of the National Assembly and regulated specifically by or under the [Local Government Transition Act 1993]”.^{^[19]}

[37] Details of the electoral system for the National Assembly and provincial legislatures were set out in Schedule 2 to the interim Constitution, to which reference will be made later. The election was contested by political parties who prepared lists of candidates. Although voters might have been influenced by the names of candidates, and possibly their place on the list, they voted for parties and not for particular candidates. Seats were allocated to the various parties proportional to the votes cast. Those seats were filled by representatives on the party lists, seats being allocated in accordance with the order in which the party’s candidates were named on the list.

[38] Schedule 2 to the interim Constitution did not deal with the circumstances in which a member of the National Assembly was required to vacate his or her seat. This was dealt with in sections 43 and 133 of that Constitution. Of relevance to this case is section 43(b) which provided:

“A member of the National Assembly shall vacate his or her seat if he or she–

. . .

(b) ceases to be a member of the party which nominated him or her as a member of the National Assembly”.

A similar provision concerning loss of membership of a provincial legislature was to be found in section 133(1)(b).

[39] The Constitution, as the interim Constitution did, deals separately with the electoral system and the loss of membership of a legislature. Section 46(1) which deals with the election of the National Assembly provides:

“The National Assembly consists of no fewer than 350 and no more than 400 women and men elected as members in terms of an electoral system that–

(a) is prescribed by national legislation;

(b) is based on the national common voters roll;

(d) results, in general, in proportional representation.”

Section 47 deals with membership. Qualifications for membership are prescribed in section 47(1). Loss of membership is dealt with in section 47(3) which provides:

“A person loses membership of the National Assembly if that person–

(a) ceases to be eligible; or

(b) is absent from the Assembly without permission in circumstances for which the rules and orders of the Assembly prescribe loss of membership.”

[40] Whilst section 46(1)(d) requires the electoral system to result “in general” in proportional representation, the details of that system are not prescribed and section 46(1)(a) leaves these to be determined by national legislation. The loss of membership provision, unlike section 43(b) of the interim Constitution, does not prescribe that membership will be lost if a member ceases to belong to the party on whose list he or she gained membership of the Assembly.

[41] The anti-defection provision relied upon by the applicants in respect of members of the National Assembly and provincial legislatures finds its place in the Constitution as a transitional provision. Schedule 6 to the Constitution, which deals with transitional arrangements, provides in item 6(3) that,

“Despite the repeal of the previous Constitution, Schedule 2 to that Constitution, as amended by Annexure A to this Schedule, applies–

(a) to the first election of the National Assembly under the new Constitution;

(b) to the loss of membership of the Assembly in circumstances other than those provided for in section 47 (3) of the new Constitution; and

(c) to the filling of vacancies in the Assembly, and the supplementation, review and use of party lists for the filling of vacancies, until the second election of the Assembly under the new Constitution.”^{^[20]}

[42] The relevant amendment dealing with loss of membership is inserted by item 13 of Annexure A to Schedule 6. The insertion is as follows:

“Additional ground for loss of membership of legislatures

23A. (1) A person loses membership of a legislature to which this Schedule applies if that person ceases to be a member of the party which nominated that person as a member of the legislature.

(2) Despite subitem (1) any existing political party may at any time change its name.

(3) An Act of Parliament may, within a reasonable period after the new Constitution took effect, be passed in accordance with section 76(1) of the new Constitution to amend this item and item 23 to provide for the manner in which it will be possible for a member of a legislature who ceases to be a member of the party which nominated that member, to retain membership of such legislature.

(4) An Act of Parliament referred to in subitem (3) may also provide for–

(a) any existing party to merge with another party; or

(b) any party to subdivide into more than one party.”

[43] In the case of local government, sections 157(2) and (3) of the Constitution provided:

“Composition and election Municipal Councils

(1) . . . .

(2) The election of members to a Municipal Council . . . must be in accordance with national legislation, which must prescribe a system–

(a) of proportional representation based on that municipality’s segment of the national common voters roll, and which provides for the election of members from lists of party candidates drawn up in a party’s order of preference; or

(b) of proportional representation as described in paragraph (a) combined with a system of ward representation based on that municipality’s segment of the national common voters roll.

(3) An electoral system in terms of subsection (2) must ensure that the total number of members elected from each party reflects the total proportion of the votes recorded for those parties.”

No reference is made in the Constitution to the circumstances in which councillors will lose their membership. This was dealt with in section 27 of the Local Government: Municipal Structures Act.^{^[21]}

[44] What emerges from these provisions is that the Constitution does not demand an anti-defection provision. It makes provision for an anti-defection provision only in the case of members of the National Assembly and provincial legislatures and then only for a limited transitional period, and sanctions that provision being amended during the transition by an Act of Parliament.

[45] The applicants contend that in the conditions prevailing in South Africa an anti‑defection provision is essential to promote multi‑party democracy. This so they contend is because we are a new and fragile democracy in which the governing party, the ANC, holds almost two-thirds of the seats in the National Assembly. The applicants say this means that the ANC has the ability to attract members from other parties by offering them inducements to cross the floor. They contend that if defections are permitted this is likely to weaken the position of smaller parties and thus to weaken multi‑party democracy.

[46] It is correct that the threshold of 10% makes it easier to defect from smaller parties than from larger parties. Presently there are eight political parties with three or fewer representatives in the National Assembly. A single member may defect from any of these parties if the threshold is 10%. But in the case of the ANC which has 252 seats, the threshold would be 26. On the other hand, the higher the percentage, the more difficult it becomes to defect from larger parties. If the threshold were to be raised to 30% one member could still defect from the eight parties referred to but 78 members would be the ANC threshold. It is of course possible to provide for no threshold, or a threshold expressed in a percentage of total seats linked with a minimum number. But if the number were set above four that would mean that there could be no defections at all from the eight small parties.

[47] The fact that a particular system operates to the disadvantage of particular parties does not mean that it is unconstitutional. For instance, the introduction of a constituency-based system of elections may operate to the prejudice of smaller parties, yet it could hardly be suggested that such a system is inconsistent with democracy. If defection is permissible, the details of the legislation must be left to Parliament, subject always to the provisions not being inconsistent with the Constitution. The mere fact that Parliament decides that a threshold of 10% is necessary for defections from a party, is not in our view inconsistent with the Constitution.

[48] Objection was also taken to the introduction of the system during the term of the legislatures. It was contended that the anti-defection provision might have affected the way voters cast their votes and that its repeal would thus infringe their rights under section 19 of the Constitution. The section provides:

“(1) Every citizen is free to make political choices, which includes the right–

(a) to form a political party;

(b) to participate in the activities of, or recruit members for, a political party; and

(2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.

(3) Every adult citizen has the right–

(a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and

(b) to stand for public office and, if elected, to hold office.”

[49] None of the rights specified in section 19, seen on its own or collectively with others, is infringed by a repeal or amendment of the anti-defection provisions. The rights entrenched under section 19 are directed to elections, to voting and to participation in political activities. Between elections, however, voters have no control over the conduct of their representatives. They cannot dictate to them how they must vote in Parliament, nor do they have any legal right to insist that they conduct themselves or refrain from conducting themselves in a particular manner.

[50] The fact that political representatives may act inconsistently with their mandates is a risk in all electoral systems. At the time of the last election the ANC had the support of the majority of the voters on the national voters’ roll. According to the evidence a number of parties campaigned on the basis that they would oppose the ANC in the National Assembly. That, however, could not preclude a party from changing its mind after the elections and forming an alliance with the ANC. Persons who voted for that party may feel betrayed by such a decision, but they cannot contend that the change infringed their rights under section 19. Their remedy comes at the time of the next election when they decide how to cast their votes.

[51] Counsel for the applicants contended that voters can be assumed to have been aware of the anti-defection provisions of item 23A of Annexure A to Schedule 6 and that this would have influenced the way that they cast their votes. If so, it must also be assumed that voters knew that the Constitution makes provision for Parliament to amend the Constitution. Apart from the fact that the express provisions of item 23A contemplated the possibility of such an amendment by an Act of Parliament, Parliament is entitled to repeal or amend any provision of the Constitution, including Schedule 6 and Annexure A. Voting on the assumption that this will not happen is a political decision. And if it does happen, and defections take place, that is the result of an incorrect political judgment, and the conduct of the particular persons who were elected to represent their interests, and not an infringement of section 19 of the Constitution.

[52] It was contended, however, that the impact of floor crossing on smaller parties goes beyond the temporary loss of membership and affects the funding to which they are entitled under the Constitution. Section 236 of the Constitution provides:

“To enhance multi-party democracy, national legislation must provide for the funding of political parties participating in national and provincial legislatures on an equitable and proportional basis.”

If the present legislation dealing with the funding of political parties does not adequately meet these requirements in the event that floor crossing becomes permissible, that legislation may have to be amended. It is not necessary to decide whether the current Act meets the constitutional requirements once floor crossing is permitted and we expressly refrain from expressing a view on this issue. That, however, is no reason for holding that floor crossing is inconsistent with section 236 of the Constitution. An equitable and proportional basis for funding political parties is possible in circumstances where floor crossing is permissible. For instance in Germany where floor crossing is allowed, funding of political parties is provided on the basis of the proportion of votes gained at the last general election.^{^[22]}

[53] The contention that an anti-defection provision is an essential adjunct to the proportional representation system contemplated by the Constitution, and that the repeal of the provision to permit defection without loss of membership of a legislature is inconsistent with the multi-party system of democratic government contemplated by section 1(d), must therefore be rejected.

[54] In support of the challenge based on section 1(d) of the Constitution it is contended that the legislation is designed to and in fact serves the interests of the ANC, which is the governing party in the National Assembly. In particular, it is contended that exclusion of the 10% threshold from the initial period, is designed to enable the NNP and the ANC to take advantage of the breakup of the alliance which previously existed between the NNP and the DP. Objection is also taken to the fact that a defecting member comes under the party discipline of the party which he or she joins, and if he or she should cease to be a member of the legislature, the seat is regarded as having been allocated to the party to which that member defected. Finally, it is contended that limiting defections to two “window periods” of 15 days each during the life of the legislature is likely to encourage opportunistic defections, rather than defections resulting from issues of principle. Similar issues are raised in relation to the argument that the disputed legislation is inconsistent with the rule of law, and it will be convenient to deal with them together.

Rule of law

[55] Our Constitution requires legislation to be rationally related to a legitimate government purpose. If not, it is inconsistent with the rule of law and invalid.^{^[23]}

[56] The appellants contend that the purpose of the disputed legislation is to enable the ANC and the NNP to take advantage of the breaking up of the DA. This argument equates purpose with motive. Courts are not, however, concerned with the motives of the members of the legislature who vote in favour of particular legislation, nor with the consequences of legislation unless it infringes rights protected by the Constitution, or is otherwise inconsistent with the Constitution. Here, the legislation was supported by 280 of the 324 members who voted – an 86% majority. Those voting in favour included not only members of the ANC and the NNP, but also members of the DP.

[57] The purpose of the disputed legislation was to make provision for members of legislatures to change their party allegiances without losing their seats in the legislature. The enactment of such legislation is specifically contemplated by item 23A introduced by Annexure A of Schedule 6 to the Constitution, but in any event, it is within the power of Parliament to deal with matters related to elections and the membership of the various legislatures.

[58] This power must be exercised subject to the provisions of the Constitution itself. We deal later with whether the legislation was enacted in accordance with the requirements of the Constitution. It is, however, beyond doubt that the subject matter – i.e. the retention and loss of membership – is a legitimate purpose in respect of which Parliament has the power to legislate and pass constitutional amendments.

[59] It was also contended that it is not rational to confine changes of membership to two window periods of 15 days each, nor to distinguish between the first period during which the 10% threshold does not apply, and all subsequent periods, during which there is such a restriction.

[60] Floor crossing has been the subject of debate within South Africa since the time of the negotiations prior to the adoption of the interim Constitution. Those opposed to floor crossing often cite the Indian experience. Counsel for the applicants referred us to a paper prepared by the Centre for Policy Research in New Delhi,^{^[24]} where it was said that between 1967 and 1972

“from among the 4000 odd members of the Lok Sabha and the Legislative Assemblies in the States and the Union Territories, there were nearly 2000 cases of defection and counter-defection. By the end of March, 1971 approximately 50% of the legislators had changed their party affiliations and several of them did it more than once – some of them as many as five times. One MLA was found to have defected five times to be a minister for only five days. Defections were always rewarded thereby establishing the fact that these ‘floor crossings’ were engineered and bought.”

This identifies two of the main objections to floor crossing – lack of stability within legislatures and the possibility of corruption.

[61] Although the South African Constitution prohibited floor crossing during the transitional period, it also made provision for the ban on floor crossing to be lifted by an amendment to item 23A. The Constitution came into force on 7 February 1997. Within a week Parliament had appointed a committee

“to consider the drafting of legislation which gives effect to Item 23A.(3) of the amended Schedule 2 to the Constitution, 1993, as provided for in Item 13 of Annexure A of Schedule 6 to the Constitution, 1996”.

[62] The committee deliberated for over a year during which it received evidence from Professor Steytler of the University of the Western Cape and Professor Schrire of the University of Cape Town. The committee reported on 5 June 1998. The recommendation of the majority was that “at this stage of our transitional democracy, it would be neither fair nor democratic for the ban to be lifted.” The committee accordingly resolved by a majority “that Item 23A should be retained as it is.” The committee went on to recommend

“3. . . . that the ban on defections should be reviewed in the process of devising the new electoral system after the 1999 general elections. The majority in the Committee felt that the case for reviewing the ban will be strengthened if the new electoral system includes constituency elections.

4. The issue of ‘loss of membership’ through expulsion from a political party should also be addressed, together with the review of the ban on defections.

5. In any future review of the ban on ‘crossing the floor’ and ‘loss of membership’ through expulsion from a political party, this Report and the deliberations of this Committee should be given appropriate attention.”

[63] It appears from the report that the committee considered that there were three basic approaches to crossing the floor. First, absolute freedom to cross the floor; second an absolute prohibition on floor crossing; and thirdly qualified freedom to cross the floor.^{^[25]} As far as qualified freedom was concerned, the committee drew attention to systems in which groups of members, and not individual members, may cross the floor. Limits are imposed in respect of the minimum number of members who can form a group entitled to cross the floor and form a new party or join an existing one. Attention was also drawn to the fact that

“[i]n some systems, a qualified freedom to ‘cross the floor’ is not allowed immediately after a general election but only after the first year or so of the term of the legislature.”

[64] The committee stated that:

“The basic argument for this approach is that during the term of the legislature there can be significant shifts in public opinion which do not warrant fresh elections, but which have to be represented in the legislature. By allowing groups of MPs to ‘cross the floor’ these shifts of opinion may be reflected in the legislature. Also, genuine differences of interpretation on what mandate the electorate gave a party, and how to implement it, can lead to splits in the party, and this should be allowed expression by way of ‘crossing the floor’. The ability to cross the floor also curtails the power of the ‘party bosses’ and makes for a more vibrant political atmosphere. In short, greater democracy and representivity is made possible through a qualified freedom to ‘cross the floor’.”

[65] In dealing with the approach to be adopted in South Africa, reference was made in the committee’s report to the opinions of Professor Steytler and Professor Schrire, both of whom felt that a qualified freedom to cross the floor should be allowed in South Africa. It was reported that

“Prof Steytler was of the opinion that if 20% to 25% of the members of a party wanted to leave that party, they should be allowed to do so, provided that they constitute a minimum number of members in the case of small parties. Prof Schrire felt that 5% to 10% of a party would be acceptable.”

[66] It also appears from the report that a number of representatives of the political parties, including the DP, the NNP, the PAC and the ACDP, argued for an absolute freedom to cross the floor. The ANC and the IFP seem to have been the only parties in favour of the restrictions on defections imposed by item 23A.

[67] What is apparent from this is that there were conflicting views within Parliament as to whether or not floor crossing was appropriate for South Africa. The differing views were each supported as being consistent with democracy and ultimately a political decision was taken not to amend item 23A.

[68] In the Pharmaceuticals Manufacturers case^{^[26]} it was pointed out that rationality as a minimum requirement for the exercise of public power,

“does not mean that the courts can or should substitute their opinions as to what is appropriate, for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary, and as long as the functionary’s decision, viewed objectively, is rational, a court cannot interfere with the decision simply because it disagrees with it or considers that the power was exercised inappropriately.”

This applies also and possibly with greater force to the exercise by Parliament of the powers vested in it by the Constitution, including the power to amend the Constitution.

[69] The limitation of floor crossing to two window periods in the life of the legislature is clearly directed to concerns relating to stability within the legislatures that had been identified in the debates that had taken place concerning floor crossing. Viewed objectively in the light of the debates and the expert opinions that had been obtained, a decision to limit floor crossing to two window periods is in our view a rational decision.

[70] The distinction between the first period and all subsequent periods is also rational. The DA had broken up. The legislation was clearly a reaction to that event. Parliament was able to assess the extent of the break up itself, and there was no need for an artificial threshold to be set to determine whether or not significant changes in the political climate had taken place that warranted the sanctioning of changes of membership. The DP and NNP, the two parties most affected by the change, both voted in favour of the amendments. Whilst other parties would not necessarily have been affected by this event, it cannot be said to be irrational to pass a law of general application to deal with a concrete situation, rather than a law which would apply only to members of the DA, the DP and the NNP. Indeed, to have made provision only for members of those parties might itself have given rise to constitutional objection.^{^[27]}

[71] The final issue with regard to the founding values and rule of law relates to the filling of vacant seats. Members elected on party lists are subject to party discipline and are liable to be expelled from their party for breaches of discipline. If that happens they cease to be members of the legislature.

[72] Defecting members who form or join another party become subject to that party’s discipline and are equally liable to expulsion for breaches of discipline. Thus, if a defecting member is subsequently expelled from his or her new party, or if a member dies, provision has to be made for how the vacant seats are to be filled.

[73] The legislation makes provision for seats of defecting members to be regarded as having been allocated to the party that the defecting members join or form. It is contended that this is not rationally related to the governmental purpose of permitting defections, and that it is inconsistent with multi-party democracy, for it allows a member not only to defect, but to cede to party B a seat won at the election by party A.

[74] The legislation accommodates mid-term shifts in political allegiances. Hence the 10% threshold. Bearing in mind that the purpose of the legislation is to accommodate mid-term shifts in political allegiances and the limited term for which a defecting member will remain a member of the legislature it seems to us to be neither irrational nor inconsistent with multi-party democracy to provide that the seat should be regarded as the seat of the new party for the remainder of that member’s term.

[75] In the result the objection to the four Acts on the grounds that they are inconsistent with the founding values and the Bill of Rights must fail. That makes it unnecessary to consider whether such provisions can be amended by inference, or whether it is necessary if that be the purpose of an amendment, to draw attention to this in the section 74(5) notices, and to state specifically that the provisions of section 74(1) or 74(2), as the case may be, are applicable to such amendments.

[76] It is now necessary to consider the challenges directed specifically to change of membership in the local government sphere, and to change of membership in the National Assembly and provincial legislatures. We deal first with local government. This involves the First Amendment Act and the Local Government Amendment Act.

The Constitutionality of the First Amendment Act and the Local Government Amendment Act

[77] Prior to these amendments the Constitution provided that the local government electoral system must ensure that the total number of members elected from each party reflects the total proportion of the votes recorded for that party.^{^[28]} The terms of the First Amendment Act are set out below. The words in square brackets indicate deletions and the underlined portions indicate additions. The amendments to section 157 of the Constitution were as follows:

“(1) Subject to Schedule 6A, a Municipal Council consists of–

(a) members elected in accordance with subsections [(2), (3), (4) and (5)] (2) and (3); or

(b) if provided for by national legislation–

(i) members appointed by other Municipal Councils to represent those other Councils; or

(ii) both members elected in accordance with paragraph (a) and members appointed in accordance with subparagraph (i) of this paragraph.

(2) The election of members to a Municipal Council as anticipated in subsection (1)(a) must be in accordance with national legislation, which must prescribe a system–

(b) of proportional representation as described in paragraph (a) combined with a system of ward representation based on that municipality’s segment of the national common voters roll.

(3) An electoral system in terms of subsection 2 must [ensure that the total number of members elected from each party reflects the total proportion of the votes recorded for those parties] result, in general, in proportional representation.”

[78] Schedule 6A details the circumstances in which the loss of membership of the party to which a councillor belongs will result in the loss of membership of the council, and circumstances in which a change of allegiance will not have such a result. The broad principles have already been referred to^{^[29]} and it is not necessary to set out the full terms of the Schedule. Item 9 of the Schedule provides that

“[t]his Schedule may be amended by an Act of Parliament passed in accordance with section 76(1).”

[79] In the First Certification Judgment this Court held that the Constitution could not immunise statutes from constitutional review.^{^[30]} In the Second Certification Judgment, however, it accepted that transitional provisions subject to amendment by an Act of Parliament could be recorded in a schedule to the Constitution, holding that in such circumstances the transitional provisions constituted ordinary legislation.^{^[31]} A material consideration in reaching this conclusion was that the Constitutional Principles prescribed that a special majority would be necessary for amendments to the Constitution.

[80] Item 9 of the Schedule therefore gives rise to some uncertainty. Is it valid? If so, what impact does it have on the status of the Schedule? Does the Schedule have constitutional status or the status of ordinary legislation or possibly a special status of provisions which, if not amended, are protected against constitutional review?

[81] There was no challenge to the validity of item 9 and, as such, it is not necessary to deal with these issues here. In our view, however, it is not appropriate to deal in a schedule to the Constitution with detailed legislative provisions of a permanent nature, which are subject to amendment by an Act of Parliament. It may even be impermissible to do so where such provisions are not closely related to constitutional structures. Here, however, the Constitution regulates elections, and the circumstances in which an elected member of a legislature will lose his or her membership. There is accordingly sufficient proximity between the subject matter of Schedule 6A and the provisions of the Constitution to make it unnecessary to consider this question. That, however, does not dispose of the difficulty as to the status of the Schedule.

	Links to media summary

South Africa: Constitutional Court

United Democratic Movement v President of the Republic of South Africa and Others (African Christian Democratic Party and Others Intervening ; Institute for Democracy in South Africa and Another as Amici Curiae) (No 2) (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495; 2002 (11) BCLR 1179 (4 October 2002)