South Africa: Floor-crossing 2002-2009

Extracted from: Susan Booysen & Grant Masterson 2009 "Chapter 11: South Africa" IN Denis Kadima and Susan Booysen (eds) Compendium of Elections in Southern Africa 1989-2009: 20 Years of Multiparty Democracy, EISA, Johannesburg, 402-403.

One of the most contentious pieces of legislation that existed in South Africa from 2002 until 2008 was the legislation permitting the defection of elected representatives of political parties (Booysen 2006, 751-770.). Four bills allowed members of parliament, of provincial legislatures and municipal councils to switch parties without forfeiting their seats. The First Amendment Act and the Local Government Amendment Act pertained to local level changes in representatives' affiliations. It provided for two fifteen-day window periods per elected term (plus one additional period immediately following the adoption of the legislation) during which councillors could change their party allegiances without losing their seats. The Second Amendment Act and the Loss or Retention of Membership of National or Provincial Legislatures Act enabled corresponding processes on national and provincial levels. Some political parties contested and Constitutional Court action followed. After a court directive, parliament passed a constitutional amendment in the form of the Constitutional Amendment Act 2003, thus legalising floor-crossing. The 'floor-crossing act', Act No. 22 of 2002, permitted members of a political party (under certain conditions, such as constituting a minimum of 10 per cent of the party's National Assembly members) to leave the party under which they were elected in the previous elections, and either form a new party or join an existing party, without forfeiting their seats. The Constitution of the Republic of South Africa Fourth Amendment Bill, 2002, passed into law in February 2003, permitted members of the National Assembly and the provincial legislatures to switch their allegiance from one party to another, irrespective of the fact that the members would have been elected on political party lists.

Floor-crossing could only take place in specified periods and certain conditions:

  • in order to cross the floor from one party to another (or to form a new party, or for two parties to merge) the person concerned, or group of people, had to constitute at least 10 per cent of the membership of the party that was being disowned; and
  • floor-crossing was only permitted twice during an electoral term, namely in the second and fourth years of the term, and only from 1 to 15 September in those years.

South Africa's system of floor-crossing specifically benefited big parties (see 2003 floor-crossing period, 2003 floor-crossing outcome, 2005 and 2007 floor-crossing periods, 2007 National Assembly floor-crossing outcome, and 2004 National Assembly Floor-crossing outcome). In the period from 2003 until 2008 the practice of floor-crossing had a substantial impact on party representation. It was predominantly the ruling party, the ANC, which systematically benefited from floor-crossing. Through floor-crossing events in the between-election period of 2004 to 2009, the ANC had increased its level of parliamentary representation from 69.69 to 74.25 per cent. At one stage, the DA was also a gross recipient of floor-crossers, but generally suffered losses.

Originally, the ANC had been opposed to introducing floor-crossing legislation, which was proposed by the then Democratic Party (DP) and NNP as a vehicle through which the two could merge after the NNP under the weight of its 1999 electoral decline formed an alliance with the DP. The DP-NNP relationship, however, broke down and the NNP requested the ANC's assistance to pass floor-crossing legislation. This time, the ANC was more receptive, in particular due to the NNP now supporting a merger with the ANC. Subsequently, there were three national-provincial floor-crossing window periods, namely in 2003, 2005 and 2007. (Local government floor-crossing was conducted in a separate cycle.)

The floor-crossing legislation faced several legal challenges, especially a Constitutional Court ruling which found that although there were some inherent flaws in the legislation, the act itself did not represent a subversion of constitutional rights or freedoms. Floor-crossing legislation remained a controversial and unpopular practice. IFP President Mangosotho Buthelezi once referred to MPs who had defected as 'crosstitutes', involved in 'crosstitution'. It was also unpopular with the ANC's rank-and-file, even if the ANC had been the only party that had consistently gained from the practice. Floor-crossing had subverted internal party democracy, with the floor-crossers often being rewarded with rapid rises through the party hierarchy. Following the ANC's 2007 Polokwane conference resolving to end floor-crossing, floor-crossing was abolished in January 2009 by means of the Constitution Fourteenth Amendment Act of 2008 and the Constitution Fifteenth Amendment Act of 2008, both of which were gazetted on 9 January 2009.

Reference

BOOYSEN, S 2006 "The will of the parties versus the will of the people? Defections, elections and alliances in South Africa", Party Politics 12(6).