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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

[CAPE OF GOOD HOPE PROVINCIAL DIVISION]

Case No.: 9452/05

In the matter between:

FREDERICK ISAAC JULIES First Applicant

GODFRIED AUGUST JOSEPHES GROBLER Second Applicant

HENDRIKA HUNTER Third Applicant

MARK HARVEY STEELE Fourth Applicant

PENELOPE ANNE TAINTON Fifth Applicant

THE DEMOCRATIC ALLIANCE Sixth Applicant

v

THE SPEAKER OF THE NATIONAL ASSEMBLY First Respondent

THE PROGRESSIVE INDEPENDENT MOVEMENT Second Respondent

THE AFRICAN NATIONAL CONGRESS Third Respondent

THE INDEPENDENT ELECTORAL COMMISSION Fourth Respondent

CRAIG MERVYN MORKEL Fifth Respondent

DANIEL KAPENI MALULEKE Sixth Respondent

RICHARD SIBUSISO NTULI Seventh Respondent

BHEKINHLANHLA MNYANDU Eighth Respondent

ENYINNA NKEM-ABONTA Ninth Respondent

JUDGMENT DELIVERED: 3 OCTOBER 2005

FOURIE, J:

[1] This application concerns the proper interpretation of Schedule 6A to the Constitution of the Republic of South Africa, Act No. 108 of 1996 (“the Constitution”), and in particular item 2 (1) thereof. I would have preferred to have had more time to prepare this judgment, but in view of the urgency of the matter and the fact that I have reached a firm conclusion as to the proper interpretation of Schedule 6A, I proceed to furnish my reasons for the order which I intend to make. I should add, that in view of the constraints of time, I do not deal individually with all the arguments advanced regarding the interpretation of Schedule 6A, but stress that I have fully considered same. Insofar as such arguments are at variance with my conclusion as to the proper interpretation of Schedule 6A, same are rejected.

[2] Section 42 of the Constitution provides that our Parliament, in which the legislative authority of the national sphere of government is vested, consists of the National Assembly and the National Council of Provinces. In terms of section 46 (1), the National Assembly consists of no fewer than 350 and no more than 400 women and men elected as members of this legislature in terms of a prescribed electoral system. Seats in the National Assembly are allocated to political parties in proportion to the number of votes such parties received in an election. The names of the representatives of each party who are to compose the National Assembly, are designated by the Electoral Commission from gazetted lists of party candidates. In the event of a vacancy occurring in the legislature, the party which nominated the vacating member, fills the vacancy by nominating the next qualified and available person whose name appears on its published list of candidates.

[3] Section 47 (3) (c) of the Constitution provides that a person loses membership of the National Assembly, if that person ceases to be a member of the party that nominated him or her as a member of the National Assembly, unless that member has become a member of another party in accordance with Schedule 6A to the Constitution. Schedule 6A, which was inserted by section 6 of Act No. 2 of 2003, is aimed at allowing members of the National Assembly and Provincial Legislature to change their party allegiances without losing their membership of the relevant legislature. Schedule 6A prescribes a practice, described as “floor crossing” in parliamentary parlance, whereby members of the National Assembly who switch their party allegiance during a defined window period, are said to “have crossed the floor” without losing membership of the National Assembly. Under Item 2 (2) of Schedule 6A, the seat held by a member who has crossed the floor, is regarded as having been allocated to the party to which the member has crossed.

[4] Items 2, 4 and 5 of Schedule 6A, are relevant for purposes of this application and read as follows:

“2. Retention of membership of legislature in event of change of party membership

(1) Subject to item 4, a member of a legislature who becomes a member of a party (the new party) other than the party which nominated that person as a member (the nominating party), whether the new party participated in an election or not, remains a member of that legislature if that member, whether by himself or herself or together with one or more other members who, during a period referred to in item 4 (1) (a) or (b), ceased to be members of the nominating party, represents not less than 10 per cent of the total number of seats held by the nominating party in that legislature.

(2) The seat held by a member referred to in subitem (1) is regarded as having been allocated to the new party which the member represents.

4. Period of application of items 2 and 3 and further requirements

(1) The provisions of item2 and 3 only apply-

(a) for a period of 15 days from the first to the fifteenth day of September in the second year following the date of an election of the legislature; and

(b) for a period of 15 days from the first to the fifteenth day of September in the fourth year following the date of an election of the legislature.

(2) For the purpose of subitem (1) ‘year’ means a period of 365 days.

(3) During each period referred to in subitem (1) (a) and (b)-

(a) a member of a legislature may only once change membership of a party, by informing the Speaker of the legislature thereof in writing and by submitting to the Speaker written confirmation from such other party that he or she has been accepted as a member of that party; and

(b) a party may only once –

(i) merge with another party;

(ii) subdivide into more than one party; or

(iii) subdivide and any subdivision may merge with another party,

by informing the Speaker of the legislature thereof in writing and by submitting to the Speaker written confirmation from the other party of the names of all members involved in the merger or subdivision, and that the party has accepted the merger; and

3. no party represented in a legislature may –

   1. suspend or terminate the party membership of a member representing that party in that legislature; or

   2. perform any act whatsoever which may cause such a member to be disqualified from holding office as such a member, without the written consent of the member concerned.

(4) A party which has not been registered in terms of any law applicable to the registration of political parties is regarded as a party for the purposes of this Schedule, but such a party must apply for registration as a party in accordance with applicable law within the period referred to in subitem (1) (a) or (b). If the party is not registered within four months after the expiry of that period, it is regarded as having ceased to exist, and the seats in question must be allocated to the remaining parties in accordance with applicable law.

5. Composition of legislature maintained until election or reconstitution in terms of Schedule

(1) After the expiry of a period referred to in item 4 (1) (a) or (b), the composition of a legislature which has been reconstituted as a result of any conduct in terms of item 2 or 3 is maintained until the next election of that legislature or until the composition of the legislature is reconstituted in accordance with item 2 or 3.

(2) Within seven days after the expiry of a period referred to in item 4 (1) (a) or (b), each party represented in a legislature contemplated in subitem (1) must submit a list of its candidates to the Secretary of the legislature.

(3) The Speaker of a legislature contemplated in subitem (1) must, within seven days after the expiry of a period referred to in item 4 (1) (a) or (b), publish a notice in the Gazette which must reflect-

(a) the number of seats allocated to each party represented in that legislature; and

(b) the name of, and party represented by, each member.”

[5] As 2005 is the second year following the election of members of the National Assembly, the period of 15 days from 1 September 2005 to 15 September 2005, was a designated window period in terms of Item 4 (1) (a) of Schedule 6A, during which floor crossing by members of the National Assembly could take place. The events which occurred during the window period and gave rise to this application, may be summarised as follows in chronological order:

1. At 00h01 on 1 September 2005, when the window period commenced, 50 members of sixth applicant, a political party known as the Democratic Alliance, were members of the National Assembly. The said 50 members included fifth to ninth respondents.

2. On 1 September 2005, seventh respondent ceased to be a member of sixth applicant and joined third respondent, a political party known as the African National Congress.

3. On 2 September 2005, eighth respondent ceased to be a member of sixth applicant and joined third respondent.

4. On 6 September 2005, first respondent, the Speaker of the National Assembly, announced in Parliament that two members of the National Assembly, Messrs. Stephens and Joubert, had left their respective parties and joined sixth applicant. On the same day (it is not apparent in which order these events occurred), ninth respondent ceased to be a member of sixth applicant and joined third respondent.

5. On 14 September 2005, sixth respondent ceased to be a member of sixth applicant and joined third respondent. On this date sixth respondent handed in a prescribed form to the official designated by first respondent, informing first respondent of his change of party membership and submitting written confirmation from third respondent that he had been accepted as a member of third respondent.

6. On 15 September 2005, at 16h50, seventh to ninth respondents handed in their prescribed forms to the official designated by first respondent. Thereafter, an announcement was made in the National Assembly that fifth respondent had become a member of a new political party (the second respondent) and that sixth to ninth respondents had become members of third respondent.

7. The window period of 15 days came to an end at 24h00 on 15 September 2005.

[6] Applicants maintain that as none of fifth to ninth respondents, either alone or counted together, had satisfied the 10% threshold laid down by Item 2 (1) of Schedule 6A, they have not legally crossed the floor and have lost their membership of the National Assembly. Applicants further maintain that by virtue thereof, sixth applicant is entitled to have the seats previously held by fifth to ninth respondents, filled by first to fifth applicants. In the result applicants, in their notice of motion, as amended, seek the review and setting aside of the following decisions of first respondent taken on 16 September 2005:

1. That the 10% threshold established in item 2 (1) of Schedule 6A, governing the number of members who are required to cross the floor during a window period within which such floor crossing is permissible, is determined at the time immediately prior to the commencement of the said period.

2. That as a result thereof, fifth to ninth respondents retain their seats in the National Assembly.

3. Refusing to swear in first to fifth applicants to fill the seats vacated by fifth to ninth respondents after they ceased to be members of sixth applicant and thereby lost their membership of the National Assembly.

Applicants further seek an order declaring that:

1. The aforesaid decisions of first respondent, are unlawful, invalid and inconsistent with the provisions of the Constitution.

2. Fifth respondent lost his membership of the National Assembly when he ceased to be a member of sixth applicant.

3. Sixth to ninth respondents lost their respective memberships of the National Assembly when they ceased to be members of sixth applicant.

4. The five seats in the National Assembly previously held by fifth to ninth respondents are vacant.

5. Sixth applicant is entitled to have the seats previously held by fifth to ninth respondents, filled by first to fifth applicants.

Finally, applicants seek orders directing first respondent to:

1. Swear in first to fifth applicants as members of the National Assembly forthwith.

2. Desist from publishing a membership list of the National Assembly, as contemplated in the provisions of Item 5 (3) of Schedule 6A of the Constitution, which includes the names of fifth to ninth respondents and fails to include the names of first to fifth applicants.

The application is opposed by first, third and sixth to ninth respondents. Second, fourth and fifth respondents abide the decision of the court.

[7] In their founding papers the gravamen of the case made out by applicants, is the following:

(a) On 6 September 2005, Messrs. Stephens and Joubert crossed the floor to sixth applicant. Consequently, as of 6 September 2005, sixth applicant was represented by 52 members in the National Assembly.

(b) Accordingly, when fifth to ninth respondents left sixth applicant and attempted to cross the floor subsequent to 6 September 2005, no fewer than six representatives of sixth applicant in the National Assembly would be required to cross the floor to meet the 10% threshold requirement of item 2 (1) of Schedule 6A.

(c) As fifth to ninth respondents failed to meet this requirement, they lost their membership of the National Assembly.

[8] In their replying affidavit the applicants say that it is not their contention that, in order to cross the floor, fifth to ninth respondents needed to cross the floor in a bloc of six members during the window period. They state that it is rather their case that the 10% threshold needed to be satisfied (by fifth to ninth respondents) at the time they ceased to be members of sixth applicant. In particular, applicants submit that as the representation of political parties is measured at the time members leave the party, none of fifth to ninth respondents, either alone or counted together, constituted 10% at the time that they left the sixth applicant. I should add that in argument the applicants also pointed to the fact that the defection of seventh, eighth and ninth respondents to third respondent, occurred considerably earlier than the handing in of their floor crossing forms to the official designated by first respondent, on 15 September 2005. Applicants accordingly submitted that as these respondents chose to hold back on submitting their forms, they failed to act in terms of Schedule 6A and therefore forfeited their seats.

[9] The first, third and sixth to ninth respondents hold a contrary view, as is reflected in the ruling of first respondent. They contend that the 10% threshold should be calculated immediately prior to the commencement of the window period. These respondents submit that as sixth applicant held 50 seats in the National Assembly at that moment, fifth to ninth respondents satisfied the 10% threshold requirement when they subsequently left sixth applicant and crossed the floor. They accordingly maintain that fifth to ninth respondents lawfully crossed the floor in accordance with the provisions of Schedule 6A.

[10] The traditional method of statutory interpretation is to ascertain the intention which the legislature meant to express from the words which it used. Those words, if they are clear and unambiguous, are to be given their ordinary, literal, grammatical meaning. A court may depart from the ordinary meaning of the words used, only where not to do so would lead to absurdity so glaring that it could never have been contemplated by the legislature, or where it would lead to a result contrary to the intention of the legislature, as shown by the context or by such other considerations as the court is justified in taking into account.

See R v Venter 1907 TS 910 and Randburg Town Council v Kerksay Investments (Pty) Limited 1998 (1) SA 98 (SCA) at 107B-G.

[11] In our new constitutional era the technique of purposive interpretation is often used in statutory interpretation, especially in the interpretation of the Constitution. In Soobramoney v Minister of Health, Kwazulu-Natal 1997 (12) BCLR 1696 (CC) at paragraph 17, Chaskalson P said:

“The purposive approach will often be one which calls for a generous interpretation to be given to a right to ensure that individuals secure the full protection of the bill of rights, but this is not always the case, and the context may indicate that in order to give effect to the purpose of a particular provision a narrower or specific meaning should be given to it.”

See also Stopforth v Minister of Justice and Others; Veenendal v Minister of Justice and Others 2000 (1) SA 113 (SCA) at paragraph 21, where the Supreme Court of Appeal gave a purposive interpretation to the provisions of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995.

[12] Item 2 (1) of Schedule 6A, lays down the requirements which a member of the National Assembly has to meet if he or she, in the event of a change of his or her party membership, wishes to retain membership of the National Assembly. In my view the provisions of item 2 (1), read with item 4 of Schedule 6A, are unambiguous and upon an ordinary grammatical construction thereof, these requirements are met, if-

1. during a window period, the member:

(i) becomes a member of a party (the new party) other than the party which nominated him or her as a member (the nominating party); and

2. informs the Speaker of the National Assembly of his or her change of party membership in writing and submits to the Speaker written confirmation from the new party that he or she has been accepted as a member of that party; and

(b) the member represents not less than 10% of the total number of seats held by the nominating party in the National Assembly, or the member together with one or more other members who, during the window period, ceased to be members of the nominating party, represents not less than 10% of the total number of seats held by the nominating party in the National Assembly.

[13] It is clear from the wording of Schedule 6A, that in enacting this legislation, the Legislature intended to provide a window period of 15 days during which the conduct required by item 2 (1), may take place. Item 4 (3) (a) expressly states that it is during each window period that a change of membership in terms of Schedule 6A may take place. Item 4 (3) (c) protects a member from suspension or disqualification by a party during each window period. Item 5 (1) provides that after the expiry of a window period, the composition of a legislature which has been reconstituted as a result of any conduct in terms of item 2 or 3, is maintained until the next election of that legislature or until the composition of the legislature is reconstituted in accordance with item 2 or 3 (emphasis supplied).

[14] In my view the intention of the legislature in providing a window period in these terms, was to freeze membership of the National Assembly for a period of 15 days during which a member who wishes to change his or her party allegiance, would nevertheless retain his or her seat in the legislature. I do not find any indication in Schedule 6A that conduct at any particular moment during a window period, such as a change of party membership, would result in termination of membership of the National Assembly. I agree with the submission made on behalf of third respondent, that it is rather the cumulative effect of all conduct required by item 2 (1) of Schedule 6A, which, at the conclusion of a window period, determines the reconstitution (if any) of the National Assembly.

[15] It follows, in my view, that the 10% threshold requirement has to be determined in accordance with the composition of the National Assembly immediately prior to the commencement of the relevant window period. It is common cause that immediately prior to the commencement of the window period on 1 September 2005, sixth applicant was represented by 50 members in the National Assembly.

[16] I accordingly do not agree with the submission of applicants, that the crossing of the floor by Stephens and Joubert on 6 September 2005, resulted in sixth applicant being represented by 52 members in the National Assembly as of that date. I further do not agree that fifth to ninth respondents needed to satisfy the 10% threshold requirement at the time they ceased to be members of sixth applicant. In my view, fifth to ninth respondents satisfied the requirements mentioned in paragraph 12 (a) and (b) above, and in particular satisfied the 10% threshold requirement as calculated immediately prior to the commencement of the window period.

[17] I should finally mention that in view of my interpretation of the provisions of Schedule 6A, the submission that seventh, eighth and ninth respondents have forfeited their seats due to their delay in submitting their forms to the official designated by first respondent, also has to be rejected.

[18] I am satisfied that my aforesaid interpretation of Schedule 6A, accords with what I perceive the purpose of this legislation to be, i.e. to provide a procedure whereby mid-term shifts in political allegiances can be accommodated in an orderly manner. See also UDM v President of the Republic of South Africa (No.2) [2002] ZACC 21; 2003 (1) SA 495 (CC) at paragraph 74. If the applicants’ construction were to be adopted, the threshold requirement of 10% would be subject to constant change during the window period, as and when members leave and join a party. This would, in my view, give rise to unreasonable, unjust and even absurd consequences, as members of a party who wish to defect would be confronted with an ever-changing (and possibly unknown) threshold requirement. This would, in my opinion, frustrate the purpose of this floor crossing legislation. The absurdity which could follow upon the construction contended for by applicants, is illustrated by the following example suggested during argument:

Party A has 50 seats prior to the window period. On day one, it loses 10 members, who change parties. These members would satisfy the 10% threshold. On day ten, another member of the party wishes to leave. He or she, being alone, would not constitute 10% of the remaining 40 members. Accordingly, he or she would be precluded from changing parties, even though together with the 10 who had already left, he or she would far exceed the 10% requirement. Even if he or she found two others to go with him or her, the three of them together would not be entitled to cross the floor.

This result can surely not be regarded as being in accordance with democratic principles or reasonable and just.

[19] I accordingly conclude that the applicants have not made out a case for the relief sought and that the application falls to be dismissed.

[20] With regard to costs, the parties were in agreement that this matter justified the employment of two counsel. However, applicants submitted that it was wholly improper for first respondent to oppose the relief sought by applicants and for her to have done so, gravely compromises the independence that is the very essence of her office. It was accordingly submitted that even if the court were to find in favour of first respondent, an adverse costs order against first respondent is clearly indicated. Applicants further submitted that even aside from her special position in the National Assembly, for the first respondent to have actively opposed this application for review, is a grave misstep. In this regard applicants relied upon the following principle reiterated by Pickard JP in Cash Paymaster Services (Pty) Ltd v Eastern Cape Province and Others 1999 (1) SA 324 (CkHC) at 353H – 354B:

“It seems, however, unusual to me that an independent tribunal such as the Tender Board should file such comprehensive and lengthy papers and offer such stringent opposition by employing senior counsel and the like to argue their case. More often than not independent tribunals, having done their duty in terms of the provisions of Rule 53, take the attitude that they abide the decision of the Court and leave the other matters to the interested parties to dispute before the Court. When they do so the Court will in the normal course of circumstances not grant costs against the tribunal, save if it is satisfied that the latter acted mala fide. Having, however, offered the strenuous opposition that the Board did in this case, and having been really at the forefront of the opposition to the review, this Court was obliged to order costs jointly and severally with the other respondents against the Board”.

[21] I do not agree that first respondent should be mulcted in costs. Her position is not the same as the Tender Board in the Cash Paymaster-case. Here she has not filed any affidavit nor taken issue with any of the factual averments upon which the applicants rely. This application concerns the legality or regularity of decisions taken by first respondent in terms of Schedule 6A of the Constitution. In my view, first respondent has a real interest in the outcome of this application and was entitled to brief counsel to present argument regarding the legality of her decisions. In addition, the submissions made by her counsel, as was the case with the submissions made by counsel for the other parties, greatly assisted me in arriving at a decision.

[22] In the result, I make the following order:

1. The application is dismissed.

2. The applicants are ordered, jointly and severally, to pay the costs of suit of first, third and sixth to ninth respondents, such costs to include the costs of two counsel.

__________________

P. B. Fourie, J

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

[CAPE OF GOOD HOPE PROVINCIAL DIVISION]

Case No.: 9452/05

In the matter between:

FREDERICK ISAAC JULIES First Applicant

GODFRIED AUGUST JOSEPHES GROBLER Second Applicant

HENDRIKA HUNTER Third Applicant

MARK HARVEY STEELE Fourth Applicant

PENELOPE ANNE TAINTON Fifth Applicant

THE DEMOCRATIC ALLIANCE Sixth Applicant

v

THE SPEAKER OF THE NATIONAL ASSEMBLY First Respondent

THE PROGRESSIVE INDEPENDENT MOVEMENT Second Respondent

THE AFRICAN NATIONAL CONGRESS Third Respondent

THE INDEPENDENT ELECTORAL COMMISSION Fourth Respondent

CRAIG MERVYN MORKEL Fifth Respondent

DANIEL KAPENI MALULEKE Sixth Respondent

RICHARD SIBUSISO NTULI Seventh Respondent

BHEKINHLANHLA MNYANDU Eighth Respondent

ENYINNA NKEM-ABONTA Ninth Respondent

Adv for first to fifth applicants : Adv. A. Katz

Attorneys : Van Rensburg and Co

Adv for sixth applicant : Adv. J. C. Heunis (SC)

Adv. M. F. Osborne

Attorneys : Van Rensburg and CO

Adv for first respondent : Adv. I. Jamie (SC)

Adv. D B. Ntsebeza

Attorneys : State Attorney

Adv for third, sixth to ninth respondents : Adv. D. F. Irish (SC)

Adv. N. Bawa

Attorneys : E. Moosa, Waglay

& Petersen

Date of hearing : 26 September 2005

Date of judgment : 3 October 2005

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