An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
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.BACK TO TOP