1
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
On the roll: 6 – 8 August 2002
Case No: CCT23/02
In the matter between:
UNITED DEMOCRATIC MOVEMENT
Applicant
versus
THE PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA
1st Respondent
THE MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
2nd Respondent
THE MINISTER FOR PROVINCIAL
AND LOCAL GOVERNMENT
3rd Respondent
Together with
AFRICAN CHRISTIAN DEMOCRATIC PARTY
1st Intervening Party
AFRICAN NATIONAL CONGRESS
Party
2nd Intervening
INKATHA FREEDOM PARTY
3rd Intervening Party
PAN AFRICANIST CONGRESS
OF AZANIA
4th Intervening Party
PREMIER OF THE PROVINCE OF
KWAZULU-NATAL
5th Intervening Party
SOUTH AFRICAN LOCAL GOVERNMENT
ASSOCIATION
6th Intervening Party
INSTITUTE FOR DEMOCRACY IN
SOUTH AFRICA
1st Amicus Curiae
RESEARCH UNIT FOR LEGAL AND
CONSTITUTIONAL INTERPRETATION
2nd Amicus Curiae
HEADS OF ARGUMENT OF SECOND AMICUS CURIAE
2
INDEX:
1.
INTRODUCTION ………………………………………………………3-5
2.
NATURE OF THE COURT’S FUNCTION …………………………..5-7
3.
REASONABLE TIME …………………………………………………7-21
4.
RATIONALITY ………………………………………………………..22-45
5.
ULTRA VIRES ………………………………………………………..45-47
6.
CONCLUSION…………………………………………………………….48
3
1 INTRODUCTION
The three main submissions of RULCI are that:
1.1 The Loss or Retention of Membership of National and Provincial
Legislatures Act 22 of 2002 was not enacted within a reasonable time as
required by item 23A(3) of Schedule 2 of the 1993 Constitution (as
amended by item 13 of Schedule 6 Annexure A of the 1996 Constitution)
(hereafter “item 23A(3)”). The whole of the Act is therefore not a valid Act
of Parliament. This has the consequence of also rendering the whole of
the Republic of South Africa Second Amendment Act 21 of 2002 invalid.
1.2 The Constitution of the Republic of South Africa Amendment Act 18 of
2002 and the Loss or Retention of Membership of National and Provincial
Legislatures Act 22 of 2002 are unconstitutional for conflicting with the
principle of rationality, derived from the rule of law as entrenched in
section 1(c) of the Constitution.
These Acts are irrational insofar as they
4
1.2.1 prescribe that individual defections (except insofar as members of
political parties with a low representation in a legislature is
concerned) may take place only for a 15 day period following upon
the promulgation of the legislation in question;
1.2.2 prescribe certain limited time-periods within which defections from
parties, subdivisions into more than one party and mergers
between parties may take place;
1.2.3 prescribe, insofar as the National Assembly and the provincial
legislatures are concerned, for a period of defections `in the second
year and fourth year following the date of an election of the
legislature’ (item 23A(5)(a)(i) and (ii) of the Loss or Retention of
Membership Act).
1.3 The Loss or Retention of Membership of National and Provincial
Legislatures Act 22 of 2002) is ultra vires and therefore unconstitutional
insofar as it provides for the conditions or circumstances under which
members of a legislature may cease to be members of the party which
nominated such member and still retain membership of such legislature,
instead of (as item 23A requires) providing for `the manner in which it will
it will be possible for a member who ceases to be a member of the party
5
which nominated that member, to retain membership of such
legislature’.1
2 NATURE OF THE COURT’S FUNCTION
2.1
This case raises questions of separation of powers. The Constitutional
Court is requested to judge the validity of legislation, at least two of
which2 are constitutional amendments. It is, however, submitted that
this task (insofar as the constitutional amendments are concerned)
does not differ completely from the sui generis function this Court
fulfilled in terms of section 71(2) of the 1993 Constitution.3
2.2
As the Court did previously with regard to the constitutional principles
and the 1996 Constitution, in casu the court (in the context of the
present submission) will similarly have to decide, with reference to the
relevant provisions of the 1996 Constitution, whether the legislation in
question –
(a) was enacted within a reasonable period of time;
1
2
Italics added.
See para 3.18 infra with regard to the status of the Loss or Retention of
Membership of National and Provincial Legislatures Act 22 of 2002.
6
(b) complies with the requirement of rationality; and
(c) deals with the manner in which a member of legislature may cease
being a member of a party without loosing her seat in the
legislature.
2.3
Constitutional amendments are justiciable on procedural grounds and
there is no reason in principle for such amendments not to be justiciable
on substantive grounds.
2.4
The context within which a decision must be taken is a recently
democratised society. Legitimacy of democratically elected institutions is
critical to the survival of the South African democracy. Parliament must
and must be seen to respect the rules it has created for itself in the past
through the Constitutional Assembly. Through the adoption of the Loss or
Retention of Membership Act 22 of 2002 and the Second Constitutional
Amendment Act 21 of 2002 Parliament has allowed for a change in its
own composition. If these Acts survive constitutional scrutiny, it will have
important consequences for the adoption of future legislation (including
constitutional amendments).
The legitimacy of parliament as a
democratically elected institution is at issue in this case. The Constitution
3
See in this regard Ex Parte Chairperson of the Constitutional Assembly: In
Re Certification of the Constitution of the Republic of South Africa, 1996
1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) paras 26-30.
7
demands of all public institutions to act objectively and impartially in
fulfilling their constitutional obligations. When one of these institutions act
as judge in its own cause (see Collins v Minister of the Interior and
Another 1957 (1) SA 552 (A)), it is crucial that the system of checks and
balances created by the Constitution, comes into play. The Constitutional
Court has a role of the utmost importance in this case. It has to strictly
enforce the requirements of the rule of law in order to safeguard the
legitimacy of parliament as a democratically elected institution.
3
REASONABLE TIME
Introduction
3.1
Item 23A(3) provides the following:
“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
4
Italics added.
8
3.2
It is submitted that the Loss or Retention of Membership of National and
Provincial Legislatures Act 22 of 2002 was not passed `within a
reasonable period’ as required by item 23A(3).
3.3
Stroud’s Judicial Dictionary of Words and Phrases5 defines `reasonable
time’ as follows:
“Where anything is limited to be done within a `reasonable time’ or
at a `reasonable hour’, the question what is a reasonable time or
reasonable hour must necessarily depend on the circumstances,
and is therefore a question of fact.
…
`There is of course no such thing as a reasonable time in the
abstract. It must always depend upon circumstances…. The only
sound principle is that the “reasonable time” should depend on the
circumstances which actually exist.’ Hick v Raymond & Reid [1893]
AC 22 at 28, 9, per Lord Herschell LC”.
3.4
In Words and Phrases legally defined6 the following definition of `reasonable
time’ appears:
“(1) Where a contract has to be performed…or a duty
discharged…within a reasonable time…such time will have to be
determined according to the circumstances of the case, and with
particular reference to the means and ability of the person by whom
the contract is to be performed, or the duty discharged….”
5
6
5th ed (1986).
3d ed (1990).
9
3.5
In Sanderson v Attorney-General, Eastern Cape7 Kriegler J deals with the
concept of a trial within a reasonable time. He observed that -
“[r]easonableness is not a novel standard in South African law.
Here, as in the common law context, one makes an objective and
rational assessment of relevant considerations”.
3.6
It is submitted that similar considerations should be taken account of in
determining what a reasonable period is for purposes of item 23A(3).
3.7
The Constitution makes the enactment of legislation in terms thereof either
compulsory or discretionary.
Obligation to enact legislation
3.8
The Constitution approaches the obligation to enact legislation as follows:
(a) by not providing for a specific time period within which the legislation is
to be enacted
See in this regard for example ss 3(3), 6(4) and (5), 25(6) and (7), 41(2)
and (3),8 47(1)(a)(ii), (2) and (4), 61(2)(a), 62(5), 65(2), 77(2), 84(2)(g),
7
1998 (2) SA 38 (CC); 1997 (12) BCLR 1675 (CC) para 27.
10
96(1), 105(2), 106(1)(a)(ii), (2) and (4), 127(2)(f), 136(1), 155(2), (3),
157(2), (4) and (6), 158(1) and (2), 159, 160(1)(c), 163, 168(1) and (2),
170, 171, 172(2)(c), 174(7), 176(2), 178(4), 179(1), (3), (4) and (7),
182(1), (2) and (5), 184(2) and (4), 185(1)(c), (2) and (4), 186(1), 187(2)
and (3), 188(4), 190(1)(c), 190(2), 191, 192, 195(3) and (4), 196(9) and
(13), 197(1) and (2), 198(b) and 199(4) and (8), 204, 205(2), 206(6) and
(7), 207(4)(a) and (6), 208, 210, 214(1), 215(2), 216(1), 218(1) and (2),
219(1), (2) and (5), 220(1) and (3), 221(1), (1A) (as amended) and (2),
223, 225, 228(2)(b), 230, 236.
In such an event item 21(1) comes into play (if the legislation in question
had not already been enacted at the time the 1996 Constitution took
effect).9
(b) by providing for a specific time period within which the legislation is to
be enacted
8
See National Gambling Board v Premier of KwaZulu-Natal and Others
2002 (2) SA 715 (CC); 2002 (2) BCLR 156 (CC) paras 32-33.
9
Item 21(1) of Schedule 6 to the 1996 Constitution provides as follows:
“Where the new Constitution requires the enactment of national or
provincial legislation, that legislation must be enacted by the
relevant authority within a reasonable period of the date the new
Constitution took effect”.
See also section 239.
11
See in this regard, for example,
sections 9(4), 32(2) and 33(3) read with item 23(1) of schedule 6 (three
years);
section 217(3) read with item 21(4) of Schedule 6 (three years)
section 46(1)(a) (read with item 6(3) of Schedule 6) and 105(1)(a) (read
with item 11(1)) (national legislation that prescribes an electoral
system must be enacted before national and provincial elections in
2004)
Discretion to enact legislation
3.9
A discretionary power to enact legislation is granted in the following terms:
(a) by not coupling it with a time-period
See in this regard, for example, sections 23(5) and (6), 25(8), 37, 42(6),
56(c), 58(2), 69(c), 71(2), 100(3), 101(4), 117(2), 139(3), 157(1)(b), 160(5)
and (8)(c), 164, 166(c) and (e), 167(6), 168(3)(c), 169(a)(ii) and (b), 180,
188(1)(c), 198(b), 199(3), 209(1), 212, 213(1) and (2), 216(1), 217(1),
229(1)(b) and (2)(b) and (5), 230A, 235.
12
If parliament has a discretion whether or not to enact legislation, without
this being coupled to a specific time period, it is obviously not required to
enact such legislation within any specified period. No sanction can be
imposed if parliament fails to enact such legislation.
(b) by coupling it with a time period
In the case of item 23A(3), the discretion to enact legislation is coupled
with a specific time limit within which the legislation is to be enacted, that
of a reasonable period.
3.10
Coupling a discretionary power to enact legislation with a time period is
significant. Although parliament is given a choice whether or not to enact
the legislation in issue, it is expected from the legislature to make up its
mind, soon after the start of the period, whether or not to enact the
legislation referred to.
3.11
The prescribed period in item 23A(3) is aimed at creating certainty (by
implication, before the elections in 1999), both insofar as individual
members of legislatures and the voting public are concerned, whether or
not floor crossing would be allowed between 1999 and 2004 elections.
13
Allowing floor crossing could impact significantly upon the choices made
by voters:
(a) they could decide to abstain from voting (holding the view that the
choice they make will in any event be subverted by floor crossing);
(b) they could decide to abstain from voting for small parties as members
from these parties (in terms of the legislation in casu) could easily be
induced to join bigger parties);
(c) they could decide to not vote for a big party, in the fear that such party
would obtain a two-thirds or 75% majority (both through the election
and by means of floor crossing after the election) which would allow
such party to amend the Constitution on its own.
History of enactment
3.12
It is submitted that Parliament (initially) understood item 23A(3) as
follows:10
10
Insofar as statutory interpretation is concerned, account may be taken of its
interpretation and implementation by the department concerned (see De Ville
Constitutional and Statutory Interpretation (2000) 236-237). It is submitted that
the way in which Parliament initially understood item 23A, can be accorded a
similar role (as part of the historical context) in determining the proper
interpretation of this item.
14
(a)
as implying that the legislation to be enacted is to be enacted by
the first parliament, ie the first parliament elected in terms of the
1993 Constitution;
(b)
as requiring action within a limited period (in any event before the
1999 general elections); and
(c)
as not open for reconsideration (except insofar as the issue had to
be reconsidered in the drafting of national legislation for the
purpose of sections 46(1)(a) and 105(1)(a) of the Constitution).
3.13
The above submission is supported by the following:
The 1996 Constitution took effect on 4 February 1997. On 13 February
1997 a committee was established by resolution in the National Assembly
(1) 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; and
(2) to report back to the House on its proposals.
15
The membership of the committee was as follows: ANC 7; NP 2; IFP 1; FF
1; DP 1; PAC 1; ACDP 1.
The Committee report was completed on 25 May 1998. The majority of the
committee was of the view that
“At this stage of our transitional democracy, it would be neither fair
nor democratic for the ban to be lifted. The Committee therefore
resolves that Item 23A should be retained as it is”.
The Committee furthermore recommended -
“That the ban on defections be reviewed in the process of devising
the new electoral system after the 1999 general elections.”11
The report was tabled in Parliament on 5 June 1998. The report was
adopted on 27 August 1998.
3.14
The decision not to enact such legislation (in August 1998) was taken
within a reasonable period. Should parliament instead have taken the
decision (in August 1998) to enact legislation dealing with floor-crossing
and enacted legislation shortly thereafter, this would have complied with
the requirement of a reasonable period.
11
In para 4 of the report it is also stated that `[t]he majority of the Committee was of
the opinion that, ultimately, the issue of “crossing the floor” could only be
addressed properly once the new electoral system has been finalised, but in terms
of the Constitution a new electoral system can only apply to elections after 1999.’
16
3.15
The legislation in question was promulgated on 20 June 2002. That is a
period of 5 years, 4 months and 16 days after the coming into effect of the
1996 Constitution (on 4 February 1997), when it could only have been
enacted between 4 February 1997 and the election to be held in 2004.
This cannot be regarded as `within a reasonable period’ as required by
item 23A(3).
Conclusion
3.16
The legislation in question cannot be said to have been enacted within a
reasonable period, for the following reasons:
(a)
The legislation had to be enacted before the 1999 general
elections. Parliament decided not to enact the legislation.
(b)
Even if it is held that Parliament could have enacted the legislation
after the 1999 general elections, the legislation concerned was
enacted more than five years after the coming into effect of the
1996 Constitution. No circumstances exist which justify such a long
delay in the enactment of the legislation.
17
(c)
To the extent that it may be argued a reasonable time is governed
by necessary circumstances it is submitted that there are no
circumstances (such as a split in an existing party) which made the
enactment of the legislation necessary at this stage (as the NNP
and the DP exist separately in the national and provincial
legislatures).
Effect of non-compliance with time period
3.17
Three questions arise in this respect:
(a)
Is item 23A a constitutional provision?
(b)
Is the prescription of a reasonable time a mandatory requirement?
(c)
If the Loss or Retention of Membership Act is held to be invalid for
want of compliance with the requirement of a reasonable period,
does it mean that the South Africa Second Amendment Act 21 of
2002 is also unconstitutional?
18
The status of item 23A
3.18
The respondents at first submitted that item 23A is part of the
Constitution.12 IDASA submitted that item 23A has the same status as
ordinary legislation.13 The Respondent now submits that IDASA may be
correct in its contention regarding the status of item 23A.14 RULCI will not
make submissions as to the status of this item as it has nothing to add in
addition to the submissions already made by the other parties to this case,
but will instead present argument with regard to the effect of noncompliance in respect of both the above possibilities.
Item 23A having constitutional status
3.18
If item 23A is regarded as being a constitutional provision, non-compliance
with its (mandatory) requirements will necessarily render the Act in
question unconstitutional.15 Should it therefore be found that the
amendment of item 23A was not effected within a reasonable time (as
required) the amendment would be unconstitutional and the legislation in
question invalid. This is in spite of the fact that the amendment effectively
repealed the requirement that the amending legislation be enacted within
a reasonable time. The maxim lex posterior priori derogat cannot find
12
13
14
15
Affidavit of Penuell Mpapa Maduna, para 34.
Affidavit of Judith Gail February, para 30.
Supplementary affidavit by Penuell Mpapa Maduna para 30.
By virtue of s 2 of the Constitution.
19
application here, as it would undermine the values of the Constitution. 16 It
would mean that the legislature may act in disregard of the demands of
the Constitution, by simply amending the requirements it has not complied
with due to good reason, bad reason or no reason at all. 17 Whatever the
reason, this is not constitutionally acceptable. If the amendment obviates
the need for compliance with the requirement of enactment within a
reasonable time, it would sanction arbitrariness, in conflict with the
founding principle of the rule of law (s 1(c)).18
This Court does not have to decide whether the requirement of a
reasonable time could have been amended or repealed within a
reasonable time because it was not.
3.20
However, from the preamble of the Act in question it is clear that
Parliament, in enacting the legislation, purported to give effect to the
requirement of a reasonable time in item 23A. Parliament therefore did not
attempt to act in derogation of this requirement, but believed (mistakenly,
it is submitted) that the legislation was enacted within such period.
Item 23A having the status of ordinary legislation
16
17
18
See De Ville Constitutional and Statutory Interpretation (2000) 66.
See the submissions made in para 31 of the Respondents’ Supplementary
Answer (affidavit by Penuell Mpapa Maduna).
See in this regard Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374
(CC); 1998 (12) BCLR 1458 (CC) paras 58-59.
20
3.21
A possible argument that can be raised is that parliament, in enacting later
legislation, is not bound to comply with a requirement set by earlier
legislation of the same status (lex posterior priori derogat). This argument
can be dismissed for substantially the same reasons as were raised
above. Non-compliance with a statutory requirement will, however, not
render the Act in question unconstitutional. It will nevertheless render the
Act in question null and void.19
Mandatory or directory nature of item 23A(3)
3.22
The discretionary element of item 23A attaches to the question whether or
not legislation should be enacted. It does not relate to the period within
which the legislation is to be enacted. In this regard parliament has no
choice. If it decides to enact the legislation (with regard to which it has a
discretion) it is obliged to do so within a reasonable period. The
consequence of non-compliance with this mandatory requirement is
invalidity of the Act in question, both if item 23A is held to have
constitutional status,20 and if it is held to have the status of ordinary
legislation.
19
20
De Ville Constitutional and Statutory Interpretation (2000) 66.
See s 2 of the Constitution.
21
3.23
If the Act in question is held to be valid in spite of its non-compliance with
the requirement of a reasonable time, it would undermine the rule of law. It
would sanction arbitrary action by parliament.21
3.24
The appropriate remedy if parliament refrains to enact legislation it is
obliged to enact within a reasonable period (except if some other remedy
is provided for) is a mandatory order. If parliament, however, refrains to
enact legislation it has a discretion whether or not to enact (within a
reasonable period), but only does so after such reasonable period has
expired, the appropriate remedy is a declaration of invalidity.
The validity of the Constitution of the RSA Second Amendment Act
3.25
Should the whole of the Loss or Retention Act be declared invalid, it would
necessarily follow that Act 21 of 2002 is also invalid. As appears from the
long title and preamble to Act 21 of 2002, it was enacted to give effect to
expected changes in the composition of provincial legislatures because of
the perceived effect of the Loss or Retention Act. Should the latter Act be
invalid (as submitted above), Act 21 of 2002 will necessarily also be
invalid (cessante ratione legis cessat et ipsa lex).
21
The submissions made in para 31 of the Respondents’ Supplementary
Answer (affidavit by Penuell Mpapa Maduna), if accepted, will undermine
the rule of law.
22
4
RATIONALITY
Section 1(c) of the 1996 Constitution – the Rule of Law and rationality
4.1
According to section 1 of the Constitution,
“[t]he Republic of South Africa is one, sovereign, democratic state
founded on the following values:
(a) …
(b) …
(c) Supremacy of the constitution and the rule of law.
(d) …
4.2
De Waal, Currie & Erasmus The Bill of Rights Handbook22 refer to the rule
of law as one of the `basic principles…which underlie the new
constitutional order’. They explain further:
“The principles…are all justiciable in the sense that any law or
conduct inconsistent with them may be declared invalid. But the
basic principles do more than this. They tie the provisions of the
Constitution together and shape them into a framework that defines
the new constitutional order. The basic principles therefore have a
broader effect in that they influence the interpretation of many other
provisions of the Constitution, including the provisions of the Bill of
Rights”.
22
4th ed (2001) 6-7.
23
4.3
The Constitutional Court has derived inter alia the principle of rationality
from the Rule of Law. In New National Party of SA v Government of the
RSA23 Yacoob J said the following:
“[19] It is to be emphasised that it is for Parliament to determine the
means by which voters must identify themselves. This is not the
function of a Court. But this does not mean that Parliament is at
large in determining the way in which the electoral scheme is to be
structured. There are important safeguards aimed at ensuring
appropriate protection for citizens who desire to exercise this
foundational right. The first of the constitutional restraints placed
upon Parliament is that there must be a rational relationship
between the scheme which it adopts and the achievement of a
legitimate governmental purpose. Parliament cannot act
capriciously or arbitrarily. The absence of such a rational
connection will result in the measure being unconstitutional. An
objector who challenges the electoral scheme on these grounds
bears the onus of establishing the absence of a legitimate
government purpose, or the absence of a rational relationship
between the measure and that purpose.
…….
[24] Courts do not review provisions of Acts of Parliament on the
grounds that they are unreasonable. They will do so only if they
satisfied that the legislation is not rationally connected to a
legitimate governmental purpose. In such circumstances, review is
competent because the legislation is arbitrary. Arbitrariness is
inconsistent with the rule of law which is a core value of the
Constitution”.
Compliance with the requirement of the rule of law
Ordinary legislation
23
1999 (3) SA 191 (CC) paras 19 and 24.
24
4.4
It is clear from the above that legislation which is enacted by Parliament
(in casu the Loss or Retention of Membership of National and Provincial
Legislatures Act 22 of 2002 - on the assumption that it has the status of
ordinary legislation), has to comply with the principle of rationality derived
from the Rule of Law, irrespective of whether or not a fundamental right is
affected by such legislation.
Constitutional Amendments
4.5
It is furthermore submitted that the founding value of the Rule of Law in
section 1(c) of the Constitution requires that amendments to the
Constitution (in casu the Constitution of the Republic of South Africa
Amendment Act 18 of 2002 and the Loss or Retention of Membership of
National and Provincial Legislatures Act 22 of 2002 – on the assumption
that the latter has constitutional status) also have to comply with the
requirement of rationality unless the constitutional amendments of this
specific section (id est, section 1(c)) is adopted in accordance with the
requirements of section 74(1).
4.6
A special majority is prescribed for the amendment of this provision,
namely a 75% supporting vote of members in the National Assembly and
a supporting vote of at least six provinces in the National Council of
Provinces. An amendment to this section would have to be explicit. In
25
other words, Parliament cannot amend this provision through amending
some other provision of the Constitution.
4.7
Any amendment to the Constitution, which departs from the values
entrenched in section 1, in effect amounts to an amendment of this section
and would therefore be invalid (unless such amendment expressly aims at
amending section 1 and the appropriate procedure is followed).
4.8
Amending the Constitution in a way that would include a provision in the
Constitution that is irrational, would undermine the founding value of the
Rule of Law in section 1(c). An amendment to another provision of the
Constitution, say section 74, that for example provides that the President
may by proclamation amend the Constitution, would undermine the value
of the supremacy of the Constitution (section 1(c)) and would thus be
unconstitutional.
4.9
Act 18 of 2002 and Act 22 of 2002 do not explicitly aim to amend section
1(c) of the Constitution, but purportedly amend other sections thereof.
4.10
The question therefore arises whether the above amendments comply
with the values set out in section 1 of the Constitution and specifically the
principle of rationality as derived from the Rule of Law.
26
Compliance with the requirement of rationality
4.11
In order to test legislation against the principle of rationality, it is necessary
to establish
(a) the purpose of the legislation in question; and
(b) whether there is a rational relationship between the measure and the
purpose.24
Establishing the purpose of the legislation in question with reference to item
23A(3) and (4) of Schedule 2 of the 1993 Constitution
4.12
Item 23A(3) and (4) (before their amendment by the Loss or Retention of
Membership of National and Provincial Legislatures Act) provided the
following:
“(3)
24
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.
See New National Party of South Africa v Government of the RSA 1999
(3) SA 191 (CC); 1999 (5) BCLR 489 (CC) para 19.
27
(4)
4.13
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.”
In S v Lawrence; S v Negal; S v Solberg25 Chaskalson P pointed out that -
“[t]he purpose of particular legislative provisions has ordinarily to be
established from their context which would include the language of
the statute and its background”.
4.14
Items 23A(3) and (4) must be understood in the light of item 23A(1) of
Schedule 2 to the 1993 Constitution (before its amendment by the Loss or
Retention of Membership of National and Provincial Legislatures Act). The
subitem provided the following:
“(1)
4.15
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”.
Item 23A(1) imposed an imperative mandate on members of a provincial
and national legislature.26 Allowing `a member of a legislature who ceases
to be a member of the party which nominated that member, to retain
25
26
1997 (4) SA 1176 (CC); 1997 (10) BCLR 1348 (CC) para 52.
Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of
the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744
(CC); 1996 (10) BCLR 1253 (CC) para 182.
28
membership of such legislature’27 necessarily means granting such
member a free mandate. In the same manner allowing parties to merge or
to subdivide envisages a free mandate to such groups of legislators. Dion
Basson28 explains the difference between the two mandates as follows in
the context of section 43(b) of the 1993 Constitution:
“The free mandate theory of representation means that a
representative who is elected as a member of Parliament is free to
exercise his or her mandate in the national interest and is bound
only by the dictates of his or her own conscience. In terms of this
free mandate, the representative is not bound by any mandates
whatsoever, whether these mandates or instructions originate from
the electorate or whether these mandates or orders are issued by
the political party to which the representative belongs. Furthermore,
the fact that a representative exercises such free mandate means
that the representative does not have to vote according to party
political principles or instructions. Accordingly, the representative
retains his or her seat even when he or she resigns from the
political party (under which banner the representative concerned
was elected) or ceases to be a member of that political party for
whatever other reason.”29
4.16
Subitems (3) and (4) can thus clearly be seen to envisage the enactment
of legislation allowing members of a legislature a free mandate (as against
an imperative mandate).
4.17
The free-mandate theory of representation entails that a member of a
legislature acts in the national interest (in the case of a member of
27
28
29
Item 23A(3).
South Africa’s Interim Constitution: Text and Notes (1994) 76-77.
Italics added.
29
parliament) and is bound only by her own judgment and conscience. 30
This will apply mutatis mutandis to members of provincial legislatures and
municipal councils. A member of a legislature can thus vote according to
her own conscience/judgment in the legislature (dissent) without the fear
of losing her membership in the legislature (because of the institution of
disciplinary proceedings by the party she belongs to, forcing her to lose
her membership in the legislature).
4.18
This does not, of course mean that the party has de facto no control over
the member. In practice members of a party (even if they have a free
mandate) would normally vote according to the instructions of their party. 31
4.19
A member of a legislature can also (if she has a free mandate) become an
independent or join another political party (defect) if she no longer wishes
to belong to a specific political party.
4.20
The free-mandate theory of representation stands opposed to the
imperative theory, which entails that members of a legislature are bound
by the mandate that they received from the electorate. They can thus be
forced to resign if they cease to be members of the party that nominated
30
31
See Basson & Viljoen South African Constitutional Law (1988) 83.
See Basson & Viljoen South African Constitutional Law (1988) 88-90.
30
them to the legislature. The anti-defection clauses in the 1993 and 1996
Constitutions are reflective of the imperative-mandate theory.32
4.21
The Constitutional Court, in Ex Parte Chairperson of the Constitutional
Assembly: In Re Certification of the Constitution of the Republic of South
Africa, 199633 expressed the view that the imperative mandate imposed by
the Constitution does not prevent a member from acting according to her
own conscience:
“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 loose 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.”
4.22
This finding of the Court was in response to a submission that the
imperative
mandate
created
by
the
Constitution
breached
the
requirements of accountability and responsiveness. The court rejected this
argument and held that an imperative mandate is not inconsistent with
democracy.34 The last sentence in the above quotation (understood in its
context) presumably means that an individual member could follow her
32
33
34
Basson South Africa’s Interim Constitution: Text and Notes (1994) 76-78.
1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) para 186.
Para 186.
31
own conscience by resigning from her party under such circumstances or
by joining another party in the run-up to new elections. This would, in
terms of the imperative mandate created by item 23A(3), mean that the
member would automatically lose her membership in the legislature
concerned.
4.23
Although, in a certain sense, it can thus be said that members of a
legislature with an imperative mandate are still free to act according the
dictates of their personal conscience, this is vastly different from the
position where a member has a free mandate. If parliament allows for a
free mandate (by enacting legislation in terms of item 23A(3)), `acting
according to the dictates of personal conscience’ takes on a different
meaning, as argued above. It means that a member of a legislature can
vote according to her own conscience/judgment in the legislature without
any fear of losing her membership in the legislature.
4.24
Whereas item 23A(3) in Schedule 2 of the 1993 Constitution provides for
the possibility of individual members of a legislature who cease to be
members of a party to retain membership of such legislature, item 23A(4)
provides for legislation to be enacted in the event of mergers between
parties and subdivisions of parties. The preambles of the Acts in question
state that the aim of the enactment thereof is the same as that of item
32
23A(3) and (4). Allowing members of a political party a free mandate is, it
is submitted, a legitimate governmental purpose.
Establishing whether there is a rational relationship between the measure and
the purpose
Individual defections
4.25
Allowing individual defections from a party under a list system of
proportional representation, should be treated with circumspection. The
Constitutional Court has stressed the importance of not allowing individual
members of parliament to defect from their parties under the current list
system of proportional representation. In Ex Parte Chairperson of the
Constitutional Assembly: In Re Certification of the Constitution of the
Republic of South Africa, 199635 the following was stated:
“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”.
35
1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) para 187.
33
4.26
Parliament attempted to achieve the purpose of subitem (3) in the
following ways:
(a) By providing for a free mandate to individual members of a legislature
and municipal council in the period of 15 days immediately following
upon the promulgation of the legislation in question.
(b) By providing for the possibility of members of a legislature or municipal
council resigning from their parties and joining other parties (during
two further window periods), should the member(s) who wish to leave
the original party constitute at least 10% of the members of such party.
4.27
It is submitted that these restrictions prevent the legislative schemes in
question from achieving their main objective, namely to allow members to
act according to their own conscience and judgment. Furthermore, the
legislative schemes in question draw distinctions which have no rational
bases.
Insofar as (a) is concerned:
4.28
The legislative scheme is to the effect that a member can act according to
her own judgment and conscience only during a specified period (the 15
days following upon the promulgation of the legislation). The rest of the
34
time (apart from the other two window periods discussed below), even if
she fundamentally disagrees with party policy, she will effectively be
precluded from acting according to her own conscience/judgment36
(except during the other two window periods and if the 10% threshold is
met).
4.29
The measure furthermore draws a distinction between those members
who wish to defect from their parties immediately after the coming into
effect of the legislation in question and those who (may) wish to do so (for
reasons of conscience) only after a certain period of time. The firstmentioned are allowed to do so, whereas the latter are not (unless they
fall under the exception in (b)). In Prinsloo v Van der Linde37 the following
was stated:
“In regard to mere differentiation the constitutional state is expected
to act in a rational manner. It should not regulate in an arbitrary
manner or manifest `naked preferences’ that serve no legitimate
governmental purpose, for that would be inconsistent with the rule
of law and the fundamental premises of a constitutional state”.
4.30
It is submitted that there is no rational basis for the drawing of this
distinction.
36
37
As defined in para 4.23 supra.
1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC) para 25.
35
Insofar as (b) is concerned:
The 10% threshold
4.31
This measure allows for individual defections only if the members wishing
to leave the party constitute at least 10% of the members of such party in
the legislature. This effectively allows for individual defections from parties
with a small representation in a legislature, but not in parties with a high
representation.
There is no rational basis for such distinction.
4.32
It is furthermore irrational to impose a 10% threshold if, as is the case
here, individual members who defect are allowed to join different parties.38
The only purpose such a measure serves is to make individual defections
from parties with a high representation more difficult than in the case of
smaller parties.
The window periods
38
Imposing a threshold in the case of subdivisions and mergers may be
rational (see para 4.36ff infra).
36
4.33
The measure is furthermore irrational in that members are permitted to act
according to their own conscience/judgment39 only during two window
periods. This is a completely arbitrary way of allowing for defections.
Differences of opinion with regard to party policy can occur at any time
during the period of a legislature. Those who express their unhappiness
with party policy at other times (than during the window periods) could be
expelled from their party. Acting according to one’s conscience cannot
logically be restricted to a window period. Allowing defections only during
window periods is fundamentally at odds with a scheme that aims to allow
members of a legislature to act according to their own conscience.40
4.34
There are various rational ways of providing for a free mandate to
individual members of a party:
1. By in principle allowing unlimited defections to take place (as in
countries like Germany and the Netherlands)
2. By imposing rational restrictions on individual defections.
(a) A rational way of providing for a free mandate for individual
members of a party (should parliament wish to provide for this)
whilst also maintaining stability and at the same time minimising
39
40
As defined in para 4.23 supra.
As defined in para 4.23 supra.
37
the possibilities of bribery and corruption, would have been to
provide that members of a legislature may cross the floor only
once during a five-year period.41 Although this measure would
not be able to completely eradicate all possibilities of bribery
and corruption, it would at least force members, who wish to
leave their parties for financial and other benefits, to consider
their positions carefully before crossing the floor to another
party. At the same time members would be able (in their
individual
capacity)
to
act
according
to
their
own
conscience/judgment in the event that they no longer feel at
home in the party of their original choice.
(b) Another possibility would have been to provide that if a person
is expelled from a party, such person would not lose her
membership in the legislature.42
Mergers and subdivisions
4.35
Item 23A(4) (as amended by item 13 of Schedule 6 Annexure A of the
1996 Constitution) (hereafter `item 23A(4)’) gives parliament a discretion
41
42
See however para 5 infra where it is argued that item 23A(3) does not
allow for conditions to be placed upon defections from a party.
Nico Steytler `Parliamentary democracy – the anti-defection clause’ 1997
Law, Democracy & Development 229.
38
to allow for the merger and subdivision of political parties during the lifetime of a legislature.
4.36
In India, individual defections are not permissible, whereas defections of a
group consisting of not less than a third of the members of the party in the
legislature are permissible. In Kihota Hollohon v Zachilhu43 the court
pointed out that there are important reasons for distinguishing between
individual defections and `splits’. The court held that the anti-defection
clause provided for in the Constitutional Amendment was constitutional:
“The underlying premise in declaring an individual act of defection
as forbidden is that lure of office or money could be presumed to
have prevailed. Legislature has made this presumption on its own
perception and assessment of the extant standards of political
proprieties and morality. At the same time legislature envisaged the
need to provide for such “floor-crossing” on the basis of honest
dissent. That a particular course of conduct commended itself to a
number of representatives might, in itself, lend credence and
reassurance to a presumption of bona fides. The presumptive
impropriety of motives progressively weakens according [to] the
numbers sharing the action and there is nothing capricious and
arbitrary in this legislative perception of the distinction between
`defection’ and `split’…. The provisions are salutary and are
intended to strengthen the fabric of Indian parliamentary democracy
by curbing unprincipled and unethical political defections”.
4.37
Nico Steytler44 explains the importance of allowing for splits and mergers
between parties without the members concerned losing their seats:
43
44
AIR 1993 Supreme Court 412.
1997 Law, Democracy & Development 227-228.
39
“If a week is a long time in politics, then five years may seem like
an eternity. Within the life of a legislature genuine and significant
shifts in opinion may occur within and between parties: marriages
of convenience between different parties before a general election
may not hold; interpretational differences may emerge in parties
over the mandate received from the electorate; new events may
bring dormant differences to the fore; a meeting of minds between
members of different parties may take place, etc. Differences of
opinion in parties stem from the fact that a party platform often
contains more than one strand of principle or policy. As a
consequence, such a party attracts support from more than one
segment of voters. If, during the life of a legislature, these
differences in principle or policy become unmanageable, resulting
in a split in the party, it seems undemocratic to allow that faction of
the party which captures the party machinery to boot the smaller
faction out of the party and hence the legislature. A significant
fraction of a party can validly claim that it, too, has a mandate from
a section of the voters whom it should continue to represent in a
legislature”.
4.38
In the South African context, because of the list system of proportional
representation, the case for allowing subdivisions or mergers whilst
disallowing individual defections, is even stronger than in India (with its
first-past-the-post system)
4.39
The aim of subitem 23A(4) can be established from the above. It is
submitted that the aim is the following:
“Allowing for ethical defections in the event of a major split in a
party concerning policy-issues. In addition it allows for a free
mandate to be introduced. Members of parties may (together with
others) decide to defect from such party for reasons of conscience”.
40
4.40
It may (as in India) be important (in order to achieve these aims) to impose
restrictions on the way in which these splits and mergers may take place
(in the interests of stability and to minimise the possibilities of bribery and
corruption). As pointed out above, in India a limit was imposed through a
Constitutional Amendment in 1985, that subdivisions of parties or splits
may be allowed to happen (and for members to retain their seats) if such
group consists of not less than one third of the party in the legislature.
4.41
In South Africa, parliament decided to impose a limit of 10% and to
impose time-period restrictions. Doubt may be expressed regarding the
advisability of a 10% threshold as it is a very low threshold which works to
the disadvantage of small parties.45 A threshold of 20% or 30% would,
however, similarly disadvantage smaller parties. Another option would be
to impose a percentage limit and to supplement that with a rule that if the
strength of a party is less than 20 members, defection would not be
allowed unless at least 5 members of such a party cross the floor.46
However, smaller parties would always be at a disadvantage where splits
in parties are provided for/allowed without members losing their seats.
Parliament clearly has a discretion in this regard and it is thus not argued
that the limitation of 10% per se imposed in casu has no rational basis.
45
46
See the affidavit by Judith Gail February paras 56-59.
See Steytler 1997 Law, Democracy & Development 228.
41
4.42
The time-period restriction is, however, a different matter. As was pointed
out above in the context of individual defections, there can be no rational
basis for allowing for subdivisions in parties to take place only during
certain periods. The ostensible aim of such a restriction is to ensure
stability in a legislature. It is, however, an irrational (and unprincipled)
method of allowing for defections. It effectively makes impossible splits in
big parties (where a number of members would have to defect) as a party
(in such a case) could easily foresee (and hear about) a possible split
before the 15 day period and act to prevent such split from happening by
expelling the members concerned. In parties with a low representation in a
legislature, subdivisions would be easier as individual members or a small
number of members would be able to break away during the window
periods (without the party leadership being alerted to such action). On a
principled level, the time-period restriction makes it very difficult (perhaps
impossible) for groups of members (in parties with a high representation in
a legislature) to act according to their conscience.
4.43
Rational measures were available to parliament such as
(a)
imposing no restriction with regard to time period;
42
(b)
imposing a restriction insofar as the number of times that a member
may partake in a party split during the term of a legislature is
concerned .
4.44
It is furthermore submitted that parliament could have enacted legislation
only allowing for group-based defections, id est mergers and subdivisions
(instead of providing for individual defections too, as was done in casu).
Parliament acted irrationally in failing to understand the fact that the
electoral system governing the five year period of the legislature was a
once off five year period and not a recurring period
4.45
As pointed out above,47 item 23A(5)(a)(i) of the Loss or Retention of
Membership Act allows defections for a period of 15 days from the first to
the fifteenth day of September in the second and fourth years following the
date of an election of the legislature. It is submitted that parliament acted
irrationally in making defections possible in these periods. The reason is
that the electoral system in question, in terms of the 1996 Constitution,
remains in existence only until the enactment of the legislation envisaged
in section 46(1)(a) (read with item 6(3) of Schedule 6 to the Constitution)
and section 105(1)(a) (read with item 11(1) of Schedule 6 to the
47
Para 1.2.3 supra.
43
Constitution). There is only one second and one fourth year following the
1999 election.
By legislating for the second year (which had already
passed in June 2002) and the fourth year, Parliament wrongly assumed
the electoral system, which was being amended, was to apply to future
elections. At the time of the promulgation of the legislation, at least three
years had already passed since the election of the national and provincial
legislatures. Parliament irrationally provided for a window period in the
second year (1 September – 15 September 2000 [or even 2001]) which
will never occur.
It is submitted that this shows, in addition to the above arguments, that
parliament acted irrationally in passing the legislation.
The provisions which are unconstitutional in light of their irrationality
4.46
The Constitution of the Republic of South Africa Amendment Act 18 of
2002
The offending provisions in light of the above are the following:
Schedule 6A:
item 2(1)
item 4(1)(a)
item 7(1)
44
4.47
It is, however, submitted that the rest of the Act is so intricately tied up
with these provisions that there cannot be severance. The whole of the
Act should be declared unconstitutional.
4.48
The Loss or Retention of Membership of National and Provincial
Legislatures Act, 22 of 2002
Schedule 2:
Item 23A(2)(a)
Item 23A(4)
Item 23A(5)(a)
4.49
It is, however, submitted that the rest of the Act is so intricately tied up
with these provisions that there cannot be severance. The whole of the
Act should be declared unconstitutional.
4.50
The Local Government: Municipal Structures Amendment Act 20 of 2002
and the Constitution of the Republic of South Africa Second Amendment
Act 21 of 2002 do not contain any irrational provisions (insofar as the
arguments above are concerned). These two Acts, however, owe their
existence to Acts 18 and 22 of 2002. It is submitted that they would serve
no purpose if Acts 18 and 22 of 2002 are declared unconstitutional. It is
45
therefore submitted that Acts 20 and 21 of 2002 should also be declared
unconstitutional.
5
ULTRA VIRES
5.1
Item 23A(3) of Schedule 6 gives a discretion to Parliament to enact, within
a reasonable period, legislation –
“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”.48
5.2
It is submitted that parliament acted ultra vires in enacting the Loss or
Retention of Membership of National and Provincial Legislatures Act 22 of
2002 insofar as it provides for the conditions or circumstances under
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.
5.3
The phrase `manner in which’ refers to the way in which something is to
be made possible. If parliament would, for example, have prescribed a
48
Italics added.
46
procedure to be followed should a member wish to cease being a member
of the party which nominated such person to a particular legislature (for
example, by providing that the speaker of the legislature concerned must
be notified of the defection) this would constitute compliance with item
23A(3). The phrase does not envisage conditions under which it would be
possible to cease being a member of a party whilst retaining membership
of a legislature.
5.4
Instead, parliament prescribed strict conditions under which it would be
possible for a member to cease being a member of party without losing
her membership in the legislature. A member may only cease to be a
member of the party which nominated such person if:
(a) this occurs during 3 `window periods’ of 15 days each;49 and
(b) such member on her own or together with other members of the party,
represent not less than 10% of the seats held by such party in the
relevant legislature (during 2 of the three window periods).50
5.5
It is submitted that the legislation in question is ultra vires in this respect.51
49
Item 23A(4) and (5)(a).
Item 23A(2)(a).
See in this regard Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA
374 (CC) paras 58-59.
50
51
47
5.6
The same restriction was not imposed by item 23A insofar as mergers and
subdivisions of parties are concerned. The legislation (insofar as it
provides for conditions where mergers and subdivisions are concerned)
thus cannot be said to be invalid for the above reasons.
5.7
It is therefore submitted that the Loss or Retention of Membership of
National and Provincial Legislatures Act 22 of 2002 is invalid insofar as
the following sections are concerned:
Schedule 2:
Item 23A(2)(a)
Item 23A(4)(a) and (5)(a) (insofar as it relates to individual defections).
5.8
The above provisions should be invalid irrespective of whether or not the
legislation in question has constitutional status or the status of ordinary
legislation.52
5.9
The following provisions of the Act in question are inseparable from the
above provisions and would therefore also be invalid:
Item 23A(2)(b)
Item 23A(5)(c)(i)
52
See para 3.18 supra.
48
CONCLUSION
6.
This Court should declare:
6.1
the Constitution of the Republic of South Africa Amendment Act 18 of
2002,
6.2
the Constitution of the Republic of South Africa Second Amendment
Act 21 of 2002,
6.3
the Local Government: Municipal Structures Amendment Act 20 of
2002,
6.4
the Loss or Retention of Membership of National and Provincial
Legislatures Act 22 of 2002,
to be inconsistent with the Constitution of the Republic of South Africa 108 of
1996 and invalid.
_____________________
ANTON KATZ
COUNSEL FOR 2nd AMICUS
CURIAE
CAPE TOWN
26 JULY 2002