Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
9 October 2008

Floor crossing and an ANC “split”

When it was announced earlier this year that the ANC has had a change of heart about the much maligned floor crossing legislation and that it will now support the abolition of floor crossing, many people were pleasantly surprised. Since floor crossing was introduced after the marriage of the Democratic Party and the National Party, the ANC has been by far the biggest benefactor of this system.

The legislation was devised to protect the ANC from floor crossing while exposing smaller parties to its vagaries. Thus it only provided for legal floor crossing if at least 10% of the members of a particular party in a particular legislature crossed the floor within the window period every two years.

For the National Assembly that meant that the ANC with almost 300 MP’s was for all intense and purposes immune from floor crossing because it would require between 25 and 30 MP’s to jump ship for the floor crossing from the ANC to be valid. For smaller parties with less than 10 members in the National Assembly (like the Independent Democrats or the UDM) floor crossing could be disasterous because  even if one member defected it would be legally valid as long as it was done during the window period provided for by the legislation.

Over the years the ANC gained many new members of the various legislatures through floor crossing. It was therefore quite surprising when the ANC decided to abolish a system that served it so well. One argument put forward was that some ANC members were also upset with floor crossing because in order to provide “encouragement” to floor crossers, the ANC promised them positions high up on the election lists. This meant floor crossers were in effect jumping the queue and people who had been diligently working for the ANC and expected to be rewarded with positions in the various legislatures were kept out.

But I wonder whether there might not have been another reason for the ANC to have had a change of heart about floor crossing. If it is true, as Blade Nzimande said yesterday, that the ANC had been aware of Lekota’s intention to form a breakaway party from the beginning of the year, then one might wonder whether there is not a more cynical explanation for the ANC’s sudden attack of principles.

Because while it would be difficult (if not impossible) for any existing opposition party to convince between 25 or 30 ANC MPs to cross the floor to their party, it would not be impossible to get that number of MP’s to cross the floor to a break away party formed by Lekota or by others in the future.

In a political climate in which the ANC was less assured of absolute unity, floor crossing had become a threat to its fortunes as well. No wonder the legislation is now being launched through Parliament.

One wonders whether the threat of a breakaway party will not make the ANC reconsider its opposition to the pure list system of proportional representation as well. As many people have pointed out tbefore, he representative nature of our democracy has been impoverished by this system because legislators are selected by party bosses (by the “deployment committee” in the case of the ANC) and are therefore beholden to party leaders instead of to the electorate that they are supposed to serve.

Maybe real competition at the polls might convince ANC leaders that they need to give up some control over their MPs so that they can demonstrate a closer link with an ever more restless electorate. If that happens, the split would already have been worth it.

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