TUESDAY, 18 JUNE 2002 __

          PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
                                ____

The Council met at 15:06.

The Chairperson took the Chair and requested members to observe a moment of silence for prayers or meditation.

ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see 000.

                          NOTICES OF MOTION

Mnr A E VAN NIEKERK: Voorsitter, ek gee hiermee kennis dat ek by die volgende sitting van die Raad gaan voorstel:

Dat die Raad kennis neem dat -

(1) die leier van die DP/DA, Tony Leon, die afgelope naweek die Noord-Kaap besoek het, en oor die nasionale media die stelling gemaak het dat 80% van die DA-raadslede na die oorloopgeleentheid by die DA gaan bly;

(2) die leierskap van die DP vantevore al die waarheid gerek het om by omstandighede te pas;

(3) daar geen substansie vir die stelling is nie, aangesien die raadslede in die Noord-Kaap lojaliteit aan die DA voorgee om sodoende skorsing deur die DP/DA vry te spring;

(4) die Nuwe NP om verskoning vra dat mense met integriteit die leuen, wat deur die DP/DA geskep is, moet leef, want dit is onbillik; en

(5) die einde egter in sig is vir hulle wat vasgevang is in die DP/DA-kokon van negatiwiteit om vry te breek en deel van die hoofstroompolitiek te word waar hulle ‘n verskil kan maak aan die lewens van al die mense om ons, eerder as om op die sypaadjie te sit en kritiseer. (Translation of Afrikaans notice of motion follows.)

[Mr A E VAN NIEKERK: Chairperson, I move that on the next sitting day I shall move:

That the Council notes that-

(1) the leader of the DP/DA, Tony Leon visited the Northern Cape the past weekend, and made a statement in the national media that 80% of the DA councillors will remain with the DA after the opportunity to cross the floor;

(2) the leadership of the DP have previously stretched the truth to fit the circumstances;

(3) there is no substance to the statement, as the councillors in the Northern Cape are feigning loyalty to the DA in order to avoid suspension by the DP/DA;

(4) the New NP apologises that people with integrity have to live the lie, created by the DP/DA, for this is unfair; and

(5) the end is, however, in sight for those caught in the DP/DA cocoon of negativity to break free and to become part of mainstream politics where they can make a difference to the lives of all the people around us, rather than sitting on the sidewalk and criticising.]

Mnr J L THERON: Voorsitter, ek gee hiermee kennis dat ek by die volgende sitting van die Raad gaan voorstel:

Dat die Raad: -

(1) kennis neem dat in die plaaslike regeringsverkiesing van 2000 die Demokratiese Alliansie ‘n totaal van 1 370 raadslede verkies gekry het, en dat bykans 600 hiervan uit die Nuwe NP-stal gekom het; … [Tussenwerpsels.]

The CHAIRPERSON OF THE NCOP: Order! Order! Order, hon member!

Mnr J L THERON:

(2) in die lig hiervan sal dit baie insiggewend wees om daarop te let dat verreweg die oorgrote meerderheid van hierdie raadslede ongetwyfeld by die DA gaan bly; en

(3) verder daarop let dat die oorgrote meerderheid van die raadslede dus gaan bly staan by die manifes waarvolgens hulle verkies is. [Tussenwerpsels.] (Translation of Afrikaans notice of motion follows.)

[Mr J L THERON: Chairperson, I give notice that at the next sitting of the House I shall move:

That the Council notes that -

(1) during the local government elections of 2000 the Democratic Alliance had a total of 1 370 councillors elected and that nearly 600 of these came from the New NP stable;

(2) in the light of this, by far the majority of these councillors will undoubtedly stay with the DA; and

(3) the majority of the councillors will therefore stand by the manifesto according to which they were elected.]

[Interjections.]

             SENSELESS MURDERS ON FARM IN KWAZULU-NATAL

                         (Draft Resolution) Dr E A CONROY:  Voorsitter,  ek  stel  voor  sonder  kennisgewing:  [I  move without notice:]

That the Council - (1) joins the uMshwati mayor, Moses Mkhize, in his condemnation of the unnecessary and senseless murder of Mr Robin and Mrs Joan Dent on their farm in KwaZulu-Natal;

(2) expresses its deepest sympathy to the Dent couple’s sons Jonathan and Nicholas and their family and friends in their hour of mourning;

(3) wishes Nicholas Dent strength in the period of recuperation following his traumatic experience during which he had to witness the murder of his parents and was then forced to help the murderers as they escaped; and

(4) will continue to play a reconciliatory role to prevent inflammatory behaviour which could contribute to repetitions of this event and similar shocking events.

Motion agreed to in accordance with section 65 of the Constitution.

  RECOGNITION OF OUR PRESIDENT'S CONTRIBUTION ON HIS 60TH BIRTHDAY

                         (Draft Resolution)

The CHIEF WHIP OF THE COUNCIL: Chairperson, I move without notice:

That the Council -

(1) notes that -

   (a)  the birthday of our President takes place at  a  time  when  our
       continent is free;


   (b)  our President is one of the  principal  architects  of  the  New
       Partnership for Africa's Development;


   (c)  his birthday will be celebrated with the imminent birth  of  the
       African Union;


   (d)  he has committed our country and its representatives to  achieve
       peace and resolve conflict in Africa and the world;


   (e)  he celebrates his  birthday  as  the  ANC  celebrates  its  90th
       anniversary and is committed to the struggle for the eradication
       of poverty and re-affirming the dignity of our people; and


   (f)  in recognition of the richness of the leadership  provided,  the
       World Summit on Sustainable Development will  be  conferring  on
       the soil of our land;

(2) wishes him a very happy 60th birthday, many happy years of contentment, continued wisdom, integrity and spiritual well-being; and

(3) recognises -

   (a)  his immense contribution and commitment to  the  achievement  of
       peace, the deepening of democracy and  eradication  of  poverty,
       the development of our continent and his perennial struggle  for
       the affirmation of the dignity of all persons; and


     (b)     that the 60 years of  his  life  bear  testimony  that  the
          integrity and noble commitment of an individual can alter  the
          course  of  humanity  from  a  situation  of  conflict  to   a
          transition to peace and justice.

Happy Birthday, Mr President.

Motion agreed to in accordance with section 65 of the Constitution.

     FOUR SUCCESSFUL EVENTS IN FREE STATE IN HONOUR OF YOUTH DAY

                         (Draft Resolution)

Ms P C P MAJODINA: Chairperson, I move without notice: That the Council -

(1) congratulates the National Youth Commission for organising four successful events in the Free State province in honour of Youth Day -

   (a)  a moral regeneration summit;


   (b)  the unveiling of a memorial stone with 176 names of our  martyrs
       in Bochabelo Location at St Barnard's School;


   (c)  a youth rally at Seiso Ramabodu Stadium which was attended by 56
       000 youth addressed by the President of the  Republic  of  South
       Africa; and


   (d)  the renaming of the Grand  Palace  Civic  Centre  in  honour  of
       fallen hero Bram Fischer; and

(2) notes that the future of this country is in good, capable hands.

Motion agreed to in accordance with section 65 of the Constitution.

           DEATH OF PATIENT AFTER BATHING IN BOILING WATER

                         (Draft Resolution)

Prince B Z ZULU: Chairperson, I move without notice:

That the Council -

(1) notes with shock the death of a patient at St Appolonaris Hospital in KwaZulu-Natal after bathing in boiling hot water;

(2) further notes that her condition had been described as chronic by the hospital authorities;

(3) finds it unacceptable and negligent that a chronic patient was without a nurse when she took her bath; and

(4) calls upon the MEC to act swiftly in line with the call by the President in his state of the nation address to investigate the circumstances surrounding the death of the patient.

Motion agreed to in accordance with section 65 of the Constitution.

         LACK OF ACCESS TO MONTHLY SOCIAL GRANT FOR CHILDREN

Mrs J N VILAKAZI: Chairperson, I move without notice:

That the Council-

(1) notes with concern that children throughout the country are starving because they have not been registered and consequently cannot gain access to a monthly social grant;

(2) further notes that this unacceptable situation is being caused by administrative impediments and a lack of interdepartmental co- operation; and

(3) appeals to the Department of Social Development and to the other departments concerned to make a co-ordinated effort in addressing this problem, and to put together a task team that will focus in particular on the registration of children.

Mr V V Z WINDVOëL: Chairperson I recommend the following as an amendment:

That, in paragraph (1), throughout'' be substituted by in certain parts of’’.

The CHAIRPERSON OF THE NCOP: Mrs Vilakazi, there is a proposed amendment to the motion. Is it acceptable?

Mrs J N VILAKAZI: Yes, Chairperson, it is acceptable. Amendment agreed to in accordance with section 65 of the Constitution.

Motion, as amended, agreed to in accordance with section 65 of the Constitution, namely:

That the Council -

(1) notes with concern that children in certain parts of the country are starving because they have not been registered and consequently cannot gain access to a monthly social grant;

(2) further notes that this unacceptable situation is being caused by administrative impediments and a lack of interdepartmental co- operation; and

(3) appeals to the Department of Social Development and to the other departments concerned to make a co-ordinated effort in addressing this problem, and to put together a task team that will focus in particular on the registration of children.

               INCREASE IN DRUG USE THROUGHOUT COUNTRY
                         (Draft Resolution)

Mr R Z NOGUMLA: Chairperson, I move without notice:

That the Council -

(1) expresses its concern at an enormous increase in drug use throughout the country;

(2) notes that, according to the Cape Times of today, 18 June 2002, the number of users has multiplied in the past five years;

(3) further notes with shock that children as young as 11 years are treated for addiction;

(4) expresses its concern at the fact that drug centres are battling to cope with the unprecedented demand for treatment; and

(5) appeals to the Government to intensify measures aimed at the prevention of drug abuse and of the entry of illegal drugs into the country. Motion agreed to in accordance with section 65 of the Constitution.

CALL TO REFRAIN FROM USING ``KILL THE FARMER; KILL THE BOER!'' SLOGAN

                         (Draft Resolution)

Mr K D S DURR: Chairperson, I move without notice:

That the Council -

(1) calls upon all who use or encourage the outdated political slogan, ``Kill the farmer; kill the boer!’’ to refrain from doing so in the future;

(2) notes that it was a slogan created for a different time in different circumstances and now, in our current circumstances, amounts to unconstitutional hate speak; and

(3) endorses the need for ongoing reconciliation and the reconstruction of our society. The CHAIRPERSON OF THE NCOP: Order! Is there any objection to that motion? There is an objection. The motion therefore becomes notice of a motion. [Interjections.]

Mr K D S DURR: Chairperson, on a point of order: Is it possible to record the names of the people who objected to that motion? [Interjections.]

The CHAIRPERSON OF THE NCOP: There is no such requirement in terms of our procedures. [Interjections.] Order! Order, hon member, all you need to do is object. The objection has been recognised through converting the motion. I think that is sufficient.

Hon members, I have been informed that there will be one debate on the three orders that are printed on the Order Paper. I would also like to alert our members to the fact that the select committee reports relating to the three orders have been placed on the desks of members in the House, and you should have the reports before you.

You should know that the report of the Select Committee on Security and Constitutional Affairs, on the Constitution of the Republic of South Africa Second Amendment Bill, should refer to the Bill B17B-2002 and the amendment B17C-2002.

 CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA SECOND AMENDMENT BILL

           (Consideration of Bill and of Report thereon.)

LOSS OR RETENTION OF MEMBERSHIP OF NATIONAL AND PROVINCIAL LEGISLATURES BILL

           (Consideration of Bill and of Report thereon.)

        LOCAL GOVERNMENT: MUNICIPAL STRUCTURES AMENDMENT BILL

             (Consideration of Bill and Report thereon.)

The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, this is the second occasion on which I have had the pleasure to participate in a debate in this House on the legislation dealing with the issue of crossing the floor. The first was when the public debate on the first Constitution of the Republic of South Africa Amendment Bill took place in this House as required by section 74 (5)(c) of the Constitution. Hon members are, no doubt, aware that this Bill, which regulates crossing in the local government sphere, is but one of four pieces of legislation dealing with crossing of the floor, the others being the subject of today’s debate.

The Bills in question are the following: The first is the Loss or Retention of Membership of National and Provincial Legislatures Bill, which deals with the issue of crossing the floor in the National Assembly and the provincial legislatures. The second Bill is the Constitution of the Republic of South Africa Second Amendment Bill, which creates a mechanism for adjusting the composition of a province’s delegation to the NCOP in the event of a significant change in the composition of a provincial legislature. The final member of the quartet is the Local Government: Municipal Structures Amendment Bill, which aims to harmonise the structures Act with the provisions of the first Constitution-amending Bill which, as I have said, addresses crossing the floor in the local government sphere.

Hon members will recall that when the first Constitution-amending Bill was debated in this House, I made the following remarks, among others:

It is already apparent, from the comments received, that there are certain areas of the proposed legislation that will require some refinement and I believe that those matters will shortly be dealt with comprehensively by the relevant committees of Parliament.

I do not wish to pre-empt the possible changes, save to remark that the provisions of the membership Bill will obviously have to be brought into line with those of the Republic of South Africa Constitution Amendment Bill because we want to ensure that the principles governing changes of party membership and mergers or subdivision of parties will be the same at national, provincial and local government levels.

I am of the view that the relevant portfolio committees in the National Assembly and the select committees in the NCOP displayed exemplary dedication and co-operation in their deliberations on this legislation. The committees held public hearings on the legislation and considered submissions made by a variety of role-players. From the way that the committees developed and refined the various draft versions of this legislation, it is clear that they have displayed extraordinary zeal towards improving the legislation, and I think that we have achieved a balanced concept which we can be proud of.

The Select Committee on Security and Constitutional Affairs has proposed amendments to both the Constitution of the Republic of South Africa Second Amendment Bill and the membership Bill which, albeit of a technical nature, will no doubt serve to further clarify the practical implications of the procedures envisaged in the legislation. Whilst recognising the need for legislation of this kind, we are committed to ensuring that the basic tenets underlying our system of democracy should remain intact.

Any provisions relating to changes of party membership and changes in party representation should be carefully crafted so as not to threaten to destabilise any tier or sphere of government. The main principle underlying the proposed legislation was that changes of party membership, mergers between parties and, for that matter, any subdivision of parties should only be allowed for very limited periods of time.

With the wisdom of hindsight, the first Constitution amending Bill, as originally published for comment, improved upon this concept by stipulating fixed periods which would be allowed for such changes in the legislation itself, unlike the original proposal put forward by the membership Bill, which would entail that the President of the Republic would, from time to time, determine such periods by proclamation in the Gazette. The mechanism eventually established in the legislation entails that a member of a national or provincial legislature and a councillor in a municipal council will be allowed to change party membership or a party will be allowed to merge or to subdivide, or to subdivide and merge, only during the first 15 days following the commencement of the legislation and, thereafter, only during a period of 15 days from the first to the 15th day of September in the second year following the date of an election and during a period of 15 days from the first to the 15th day of September in the fourth year following the date of an election. [Applause.]

Kgoshi M L MOKOENA: Chairperson, I want to express my sincere thanks to members of the Select Committees on Security and Constitutional Affairs and on Local Government and Administration. We are where we are because of their preparedness, dedication, unselfishness and commitment. If hon members are the stars, then I am the moon.

On 7 April we explained in this very Chamber what this legislation was all about. We went further to explain what needed to be done when members and councillors want to cross the floor. Again we explained how parties could merge or subdivide. During those deliberations we made a call to stakeholders to come and participate in our public hearings. South Africans responded positively. Thanks to them, dear South Africans, and I can only say to them, the fruits of their labour will last longer than the colour of their skin.

Because of the interaction with stakeholders or their contribution, we are bringing before this Council modified legislation by bringing in a balanced piece of legislation. The final version we are committing to this Council takes into account all concerns raised by stakeholders. It is accommodative and polished.

Before one touches on some key issues in this legislation, there is one disturbing matter I must mention. I was reliably informed that there are parties and some individuals who are busy forcing their councillors to sign some forms accepting that they are crossing the floor. We are told that if a councillor refuses to sign, he or she is threatened with being replaced. We are told that there are those who have signed already.

I want to draw the attention of these parties to the provisions of item 7(1) of the proposed new Schedule 6A in the Constitution of the Republic South Africa Amendment Bill. It categorically states that any crossing of the floor, merging of parties or subdivision can only take place during the window period, not before or after.

All forms signed before the window period, in my opinion, should be nullified. In terms of the resolution we passed few days ago, relevant parties, the Speaker’s Office, and the Secretary to Parliament are expected to deal with some of these logistics and modalities.

I want to formally propose that a member or a councillor be required personally to submit his or her form to the relevant office, and that no party be allowed to submit forms on behalf of a member or a councillor. If it is discovered that councillors were forced into signing those forms before the stated period, those councillors must expose those parties or those individuals for who they are.

We cannot tolerate people who are not ashamed of adjusting their underwear in public. In terms of the original Bill we presented to Parliament, the window period was going to be twice a year, that is, February and September. But after a lengthy discussion and having taken into account inputs by stakeholders, both committees agreed that the window period would be twice in a five-year term. To put it a little more simply, the window period will be in the second year and the fourth year after an election. If I were in a classroom I would demonstrate by using my fingers to say crossing, no crossing; crossing, no crossing. [Laughter.] But because I am in Parliament I cannot do that.

For example, the next crossing for the national and provincial governments will only be in the next Parliament, but the local governments will have their next bite in September 2004.

Members will recall that in the original draft there was going to be a threshold in all the window periods - that is, a 10% requirement was going to be in place whenever there was to be a window period. Thanks to the wide consultations we had with parties and some NGOs, that requirement will not be there in the first window period. Immediately after the commencement of this Act, it will be a free-for-all. This will be during the transitional arrangement.

What is going to happen is that during this first window period, a member or a councillor can take his jacket or her clutch bag and cross to the party of his or her choice, or form a new party. But in future, it will be a threshold all the way.

I want to sound a word of caution to people who are going to cross that floor: They will be allowed to cross only once during that window period. They should think before they cross, because some parties might be interested in their seat, not in them.

Owing to the constraints of time, I am not going to talk about the composition of the council after crossing, how seats are going to be allocated to parties in the subcouncils, how the councils should be reconstituted after crossing, or how the first meeting is to be convened after crossing. Those are just technical and administrative. That would be like combing my hair in the kitchen, or handing out business cards at a funeral, or cleaning one’s ear with one’s little finger in public.

Permanent delegates in the NCOP are going to be directly and indirectly affected by this legislation. Any crossing in the provincial legislature will affect the NCOP’s permanent delegates directly. Those crossing in the provincial legislature will have an impact on this Council. Unfortunately, some members in this Council might be replaced.

It is a pity that whilst members in the NA, MPLs, councillors and their parties will be exercising their right during the window period, members in the NCOP cannot. But, of course, it is understandable, because members in the NCOP are appointed, not directly elected. That is the only difference.

Even though this cannot be legislated, I want to suggest that something be done to allow members who might be affected by any crossing in a particular legislature to buy back their pensions for the period they were supposed to be in this Council.

On behalf of the select committee, I would like to submit our amendments to the Loss or Retention of Membership of National and Provincial Legislatures Bill, as tabled before Parliament. I will not read them because members can do so for themselves. They have been agreed to by all parties and provinces.

Immediately after today’s debate, the long-awaited window period will be opened. Parties are ready to receive new members and councillors are ready to move.

Let us allow them to exercise their rights. Those parties who did not do their homework will be kicking and screaming like little babies. All one will hear will be, We was robbed.'' Dear patriots, loyal South Africans, let us support this legislation. King Solomon once said, In all labour there is profit.’’ Let us go and do it, because we can. I have spoken. [Applause.]

Mr L G LEVER: Chairperson, the three Bills before this House are collectively and colloquially known as the ``crossing of the floor’’ legislation. The concept of crossing the floor is not a new one. It is something that my party has been advocating since the earliest days of constitutional negotiations. The reason we have been advocating a system allowing floor-crossing seems to have been lost in the context of the present debate. The provision for crossing the floor is to allow a member to leave a party when the party changes its agenda and policies in a fundamental manner, without losing his or her seat in the legislature concerned.

In the present context in which these three Bills come before this House, the motivation behind these Bills is diametrically opposed to allowing a member to maintain his or her compact with the electorate. The motivation for these three Bills is to allow for a marriage of convenience between the ANC and the New NP. It is simply to allow the ANC to grab and maintain power in the Western Cape and the Cape Town Metro. [Interjections.] The whole motivation for the present three Bills comes out of the deal consummated between the ANC and the New NP.

Who will win the first round of the floor crossing? That is the question that is on everyone’s lips. I do not know who will win, but I do know that the New NP contributed 592 local government councillors to the Democratic Alliance. For the New NP to break even, they need to persuade all 592 to return to their old political home. I am sure some of the previous members of the New NP will accept the invitation to return to their old home, but I am equally sure that a significant number will stay in their new political home. [Interjections.]

As members of the NCOP cannot, by law, cross the floor, I cannot invite fellow hon members of this House to join me in the DA … [Interjections] … but their colleagues in the other legislatures are most welcome to join. [Interjections.]

Despite the fact that the present three Bills come before this House to cater for political expediency, we support the legislation because we feel that the short-term expediency will pass, and in the long term, as a result of this legislation, ordinary members of Parliament and members of other legislatures will achieve greater respect and autonomy from their particular political parties. [Applause.]

Mrs E N LUBIDLA: Madam Chair, hon minister and hon members, we know before a horse dies it has to kick its last kick. The DA is doing that now.

The lifting of restrictions on politicians crossing the floor is one of the most significant legislative developments coming from Parliament since the drafting of the final Constitution. Contrary to the lie which the DA is spreading about the real purpose of this legislation, the ANC believes this legislation is a definite sign that our democracy is maturing.

Moreover, we believe legislation such as this has become necessary to cater for political realignment and to prevent the formation of racial blocs, which contribute to racial polarisation, and which are aimed primarily at preserving racial privileges. I find it very difficult to reconcile the DA’s objections to certain aspects of the legislation with their previous support for legislation of this kind. If hon members would recall, the proposal to allow members of legislatures to cross the floor was very vocally supported by the DP.

In fact, former DP politician Colin Eglin was among those who, as long ago as 1994, championed floor-crossing legislation. The DA itself submitted proposals to Deputy President Jacob Zuma last year, on how best to lift the antidefection clause. According to the DA’s Tertius Delport, the DA has a fundamental objection against the inclusion of the clause, which requires the support of at least 10% of a party’s members before they can cross the floor to another party.

Why are they so afraid of this 10% requirement? [Interjections.] Is it because they are not confident enough of retaining their members? I would not be surprised if they lacked a bit of confidence, given the scandals that have rocked this party in recent times. I will understand if there are a lot of DA members who might feel uncomfortable with the DA right now, and would want to leave the party because of its association with unsavoury characters. We have already seen one of the DA’s most senior Western Cape politicians quitting politics as a result of these scandals.

I am sure there are also a lot of DA members who are uncomfortable with the confrontational and autocratic style of the DA leadership. Many of these members want to make a contribution to reconciliation and nation-building, but they are prevented from doing so by the DA’s confrontational style of politics. If this legislation is adopted, justice will eventually prevail, particularly in the Western Cape, where the ANC has won the majority of votes, but was excluded by virtue of the DP’s ambitions to get a foothold in Government, which they hoped to use to show they are a viable alternative to the ANC. [Applause.]

Mr S NGWENYA (Gauteng): Madam Chair, Minister Maduna, hon members, first I would like to commend the Springbok boys, for having beaten Wales. [Interjections.]

Section 19 of the Constitution of our country states that:

Every citizen is free to make political choices, which includes the right to form a political party; to participate in the activities of, or recruit members for, a political party …

Implicitly, intimidation or coercion of any form is outlawed. This I mention to concur with member Kgoshi Mokoena. As we rise to support these Bills, it has come to our attention that certain parties in Gauteng are unashamedly doing exactly what member Mokoena is doing, forcing certain councillors to sign those forms, lest they be taken out of the council. [Interjections.] This is a party that presents itself in the media and everywhere else as a morally and ethically ``skoon papier’’ party. [Laughter.]

Since 1995 some political representatives at national and provincial level have in actual fact been under political bondage within their respective parties. They had to conform to party policies and/or leadership style, a top-down type of leadership style, which they may no longer agree with. In certain instances, of course, these members’ rebelliousness or ill discipline could be the cause of their own frustration.

It may well be that some amongst these are dedicated and diligent political representatives. They sincerely still want to play a meaningful role in our country’s long and arduous walk of social transformation. Yet it is also true that some may just be habitual political opportunists, bent on misusing the system for their self-interest - cheque collectors. I would concur with member Mokoena when he tries to warn us that people should not jump into crossing the floor without proper thought, they must think and think and think.

Some have expressed the views that the Bills before us are a recipe for political chaos. Others even go so far as to say that these Bills are immoral, whilst some say we are going against the international civil ways of democracy. These are South Africans who are caught in a particular situation at a particular point in history, and they do not know how to handle this. It would be naive of any of us to presume that the electorate’s political thinking ability is switched off immediately after the elections, for the following three to five years.

Research findings after research findings after the elections of 1994 demonstrate how electorates have been changing allegiance. To say that these Bills are immoral, is ridiculous, as is the conclusion that it is immoral to introduce these Bills now. Yet, since the first election of 1994 to date, numerous researches have demonstrated how electorates have shifted their voting patterns between the election periods.

Yesterday the Markinor research here in the Western Cape showed that the DA/DP has dropped from 22% to 11% since the last elections. [Interjections.] The issue is not whether one believes this or not; the issue is that this does happen. Electorates are not static in their thinking, in their preference; they will change. Perhaps Markinor is wrong. To suggest that we are doing something to be scoffed by the international community is ludicrous. Who determines what is international and what not? When President Bush defines what terrorism is, and what is not, and cajoles everybody into believing him, was that the international standard? Why do people now tell us that we are going to be the laughing stock?

If South Africa shifts from a 100-day assessment period of the newly inaugurated President to a six-month assessment, because of certain sound factors that suit the South African situation, why would this be abnormal? People would say, why do we not follow the so-called civilised world? But we have our own material conditions to address.

By introducing these Bills, we are striving to enhance the culture of democracy in our country. Any person who, during the window period, should have the need to freely migrate to another party, or party wanting to subdivide and unite with another, must only do so after a well-thought-out process, free from fear or intimidation, as section 19 of our Constitution advocates. People must think of the consequences of the potential of their misjudgment of future events. Even more important is that henceforth most political parties, if not all, are going to embark on a revamping of their political management systems, political training and quality control of candidates particularly for the forthcoming general elections. No party would like just to accept any type of person because they have come to them, as Kgoshi indicated.

Parties, particularly for councillors, will have to have thorough quality control of their candidates. No more … yiza, singene nje, siphangele mfondini. [… come, let’s go in and work, mate.]

Unfortunately, these Bills, for some amongst us, may be a political death knell, as my comrade said. Some may lose their political seats in terms of provincial representativity, hence the complaints of political chaos. A sincere word of sympathy may be expressed to such persons, but then they have a chance of salvaging their situation rather than sticking to some sinking ships. They can jump to the passing rescue ship within the 15-day window of political salvation and stop moaning. They have freedom of choice of political home.

Democracy was never intended to be a static phenomenon. It is both evolutionary and revolutionary, as will be the Bills before us today, once the President has asserted to them - and only then, so people should not start marakalas now. Then the political stage in our country will be once more revolutionised and evolution within parties will have to take place. There will be no holy cows. More important is going to be the social impact of grappling with the new situations.

It would in the doubting Thomases’ interest to bear in mind the message from an interesting advert on TV. It goes like this: You snooze, you lose. Walala, wasala. [You sleep, you lose.] [Kwaqhwatywa.] [Applause.]

Mr M J BHENGU: Chairperson, the Bills before this House today undoubtedly will go down in the annals of our history for what they are, but more particularly because of how the Constitution, which is said to be sacrosanct, has actually been tampered with.

The IFP has never opposed pieces of legislation coming from the ruling party just for the sake of opposing them, and as a result it has been labelled in some quarters as an appendage of the ANC. This does not worry us because we know our principles. But today, we are facing a very unique problem - the problem of political morality contained in these Bills. We cannot sacrifice our moral beliefs for political expediency, for we believe that morality is the surest pledge of freedom.

The constitutional provision prohibiting members of Parliament from crossing the floor introduced the so-called imperative mandate theory of representation to the South African parliamentary system, whereby a representative would be bound by the mandates issued by the political party on which he or she was elected as a member of Parliament. The constitutional provision in question is the one that requires a member of Parliament or legislature to vacate his or her seat if he or she resigns from his or her political party of loses his or her membership of the party for whatever reason.

The South African parliamentary system has adopted the imperative mandate theory of representation as opposed to the free mandate theory of representation, which has been attributed to our party list proportional representation electoral system. In terms of the free mandate theory, the representative is not bound by any mandate whatsoever, but is free to exercise his or her mandate and is bound only by the dictates of his or her own conscience. Retaining the imperative mandate theory whilst purporting to allow members to cross the floor is a contradiction in terms. This is what gives us a major problem with these Bills.

The IFP believes that it would be morally and constitutionally wrong for an individual to decide overnight that he or she wants to cross the floor and violate the mandate of the voters who voted for the party to represent their needs. The will of the people, as expressed in an election, should not be negated and substituted by the will of an individual or a group of individuals.

It makes one shudder to think that our young Constitution can be amended willy-nilly for reasons of expediency. The Constitution is not a toy to play with. We know very well that this is being done simply to accommodate the Western Cape situation for the ANC-New NP coalition. We have no problem with that per se. We only have a problem with the process to achieve that goal, which is indeed nefarious. [Interjections.]

Because we respect the electoral mandate and the electoral will of the people who voted for us, the IFP cannot support these Bills because they are, we believe, immoral and unacceptable. We oppose the Bills. [Interjections.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order, hon members! The hon member has the right to freedom of expression.

Mr P D N MALOYI: Chairperson, Minister for Justice and Constitutional Development, Comrade Penuell Maduna, permanent and special delegates, ladies and gentlemen, I once more stand before you to present the views of my province on the Loss or Retention of Membership of National and Provincial Legislatures Bill and the Constitution of the Republic of South Africa Second Amendment Bill.

Item 23A of Schedule 2 to the Constitution of the Republic of South Africa of 1993 dictates to us that if an opportunity arises, an Act of Parliament can be passed within a reasonable period after the coming into effect of the new Constitution of 1996 to amend the item in order to provide for the manner in which it would be possible for a member of the legislature to move from one party to the other without losing his or her seat and for different parties to merge or subdivide into more than one party.

The North West province is of the opinion - with which I suspect that all of us agree - that our democracy is dynamic; it is not stagnant. It allows material conditions to assist in dictating the way forward.

We are a learning nation, and a learning nation is a nation that is able to set the trend. I am therefore proud to stand before the House and pronounce that we are trend-setters.

This is an opportune time to allow members of Parliament to move from one party to another and to allow parties to merge or subdivide. It is also necessary that mechanisms should be set up to avoid a situation where individuals would want to change parties like underwear for opportunistic reasons.

Moving from one party to the other due to ideological differences cannot be regarded as being opportunistic, but at the same time nobody can justly claim that he or she has an ideological difference with the party if that person does not have a sizeable number of persons behind him or her. That is why the present piece of legislation before us tries to cover that aspect. It talks about the 10% threshold. The province of the North West is satisfied that this Bill attempts to balance the two concepts.

As a consequence of the Loss or Retention of Membership of National and Provincial Legislatures Bill there might be some changes of party representation in the provincial legislature which might lead to changes in delegations to the National Council of Provinces.

The Constitution of the Republic of South Africa Second Amendment Bill provides that if, as a consequence of this legislation, there are changes in the composition of a provincial legislature, that legislature should, within 30 days of such changes, redetermine how many of each party’s delegates are to be permanent and how many are to be special delegates to this House.

On 27 May 2002, we briefed our province on the two Bills and, on 13 June 2002, we received a negotiating mandate from our province indicating that the province supported the two Bills. Finally, on 18 June, which is today, we received a final mandate that says the North West delegation should, on behalf of the province, vote in favour of the two Bills.

With the powers vested in me by the North West province, I support the passage of the Loss or Retention of Membership of National and Provincial Legislatures Bill and urge all parties to support the Constitution of the Republic of South Africa Second Amendment Bill. [Applause.] Mr P A MATTHEE: Chairperson, the New NP fully supports this legislation, including the technical amendment which merely provides for a deadlock- breaking mechanism. My party is on record as having been all along against an antidefection clause and in favour of a free mandate. We have always believed and still do that members of legislatures or councillors should not represent only the interest of their constituency, political party or ward, but should represent the best interests of the entire nation, province or municipality. Hence our slogan, ``South Africa first’’.

The fact that public representatives will, after the coming into operation of these Bills, be in a position to act in terms of their conscience and in terms of what is in the best interests of our nation as a whole, coincides not only with one of the most important principles on which our Constitution and our new dispensation are based, namely participatory democracy, but also with the principles and policies of the New NP.

Tydens die 1999-verkiesing het die Nuwe NP sy verbintenis tot ‘n konstruktiewe benadering en deelnemende regering herbevestig. In 2000 is die DA gevorm in die hoop dat Suid-Afrika se vernaamste opposisiepartye saam ‘n konstruktiewe alternatief vir die ANC-Regering sou kon bou. Ongelukkig het ervaring getoon dat die DP-element in die DA meer daarin belang gestel het om ‘n negatiewe opposisie te wees, en politieke punte teen die Regering te verdien, eerder as om te help om Suid-Afrika te maak werk. (Translation of Afrikaans paragraph follows.)

[During the 1999 elections the New NP reaffirmed its commitment to a constructive approach and participatory government. The DA was formed in 2000 in the hope that South Africa’s most prominent opposition parties would jointly be able to build a constructive alternative to the ANC Government. Unfortunately, experience has shown that the DP element in the DA was more interested in being a negative opposition and scoring political points against the Government than in helping to make South Africa work.] This was not what we had expected and had in mind. We could not share the DP’s attitude that what was bad for South Africa was good for the DP/DA. We believe that all South Africa’s people must work together and all South Africa’s public representatives must act in the best interests of all our people and our whole nation, and not only the narrow interests of a specific segment of our people or a specific constituency or their particular political parties, if we are to achieve the best for our country and for our people.

During the 2000 local government elections many councillors from the New NP were elected under the DA banner. The DP/DP will now say that these councillors cannot cross the floor to the New NP because they do not have a mandate to do so. That would be a lie. Councillors have a moral right to join the New NP.

In nearly all democracies worldwide it is more than just acceptable, it is the established practice that public representatives are free to change party affiliation when their conscience leaves them no other choice or when they believe it to be in the national interest. In fact, councillors who cross the floor to the New NP will do so because the DA has broken trust on its two most important promises in the 2000 local government elections. They promised to be a party for all the people. However, the DA soon became a party for only some of the people. What the DP leadership had in mind was only a larger DP. Their heart was simply not big enough to have a place in the sun for all the New NP’s voters. The DA promised to be the New NP plus the DP.

However, immediately after the elections the DP started an attempt at purging New NP leaders. We now look forward to welcoming all councillors and public representatives who share our vision, patriotism and message of hope and who want to make a constructive contribution to making South Africa work.

DA councillors and DP public representatives have a clear choice. On the one hand the DP says that what is bad for South Africa is good for the DA. We say, South Africa first''. [Applause.] They have a message of fear and we have a message of hope. They believe infight back forever’’ and we say ``building together’’. [Applause.] They believe in a home for some and we say a home for all the people. They shout from the sidelines and we say participatory government. They want to go back to the past and we say: Let us move forward together to the future. [Applause.] [Interjections.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Hon members, let the screams stop.

Mr B J MKHALIPHI: Chairperson, hon Minister and hon members, it is indeed a marathon year full of challenges for all of us, as we are tasked by South Africans to insist on the paramountcy of transformation on the agenda of society and Government, and full of inspiration as we see how the majority of our people, while still living in squalor, disease and pain, rise to the challenge and walk hand in hand with Government to create a better life for all. The Local Government: Municipal Structures Amendment Bill before us proposes to amend paragraphs (c) and (f) of section 27 of the Local Government: Municipal Structures Act, Act 117 of 1998. This is due to the fact that the proposed constitutional amendments will render these paragraphs redundant.

These amendments stem from the consideration of the Loss or Retention of Membership of National and Provincial Legislatures Bill, which creates a mechanism in terms of which members of the National Assembly or provincial legislatures can change their party membership without losing their seats, since at present the Constitution does not provide for similar changes of party membership, mergers between parties or the subdivision of parties in the context of the local government sphere. The department propose a constitutional amendment in respect of the local government sphere which deals comprehensively with crossing the floor, the mergers of parties and the subdivision of parties within the municipal councils, the Constitution of the Republic of South Africa Amendment Bill, which was deliberated on by this House a few weeks ago.

This Bill also proposes other amendments to the Local Government: Municipal Structures Act of 1998 to give effect to the constitutional amendments which require the reconstitution of structures and committees of a municipal council in the event of the reconstitution of a local municipality’s representation in the district municipality.

Furthermore this Bill will also regulate the following. Firstly, it provides for the term of office of local government representatives in the district municipality in the event of there being a change in the composition of the councils. Secondly, it regulates the first meeting of the council after the change of membership, or merger or subdivision of parties. Thirdly, it redetermines the size of a metropolitan subcouncil and the allocation of councillors to those seats. Fourthly, it regulates the submission of party lists. Lastly, it provides for any transitional arrangements.

This Bill is monumental in that local government is also the immediate and sometimes the only point of contact between citizen and Government. This is the sphere of government where we can only say that it is the facilitator of government, for it is local government which makes land available, be it for housing, industry, tourism or recreation. It is therefore this importance that necessitated the amendment of the Constitution so as to bring local government into line with the national and provincial legislatures, which were provided for in the Constitution.

We have heard all sorts of comments and accusations about us creating a scenario for marriages of convenience and all such other nonsensical ideas. May I put on record that this amendment does not just come out of nowhere. It flows directly, even from 1955, when people never dreamt that we would have a Government of this nature in this country. People would now come and say that there was convenience in 1955 when people were meeting secretly and took such decisions. We are implementing those decisions right now. The hon Maloyi has highlighted that these amendments do not depart considerably from the Constitution because during the drafting of the Constitution provision was made for such eventualities that we are implementing. Where is this departure from the spirit and later of the Constitution? Where is this marriage of convenience?

Those hon members voted for this Constitution and we were there when it was being made. They were aware that such an event would arise. Now they come and scream that we are departing from our mandate. No, we are implementing precisely the mandate that we were given by the people. [Applause.]

Cllr R M MASEDI (Salga): Hon Chairperson, hon Minister, hon members of the Council and special delegates, the last time we stood at this podium and spoke on this issue of the crossing of the floor, Salga raised a number of concerns, most of which will be covered in this input.

The Local Government: Municipal Structures Amendment Bill deals with the consequences of the constitutional amendments providing for the crossing of the floor in municipalities. As my colleague who stood here on the occasion on the debate on the constitutional amendment stated, Salga accepts the principle that a councillor who crosses the floor will retain his or her seat within the framework of the law, and we wholeheartedly support the legislation.

One of the points we raised during that debate was the question of the frequency of the crossing. As Salga we were deeply concerned with the instability that would have been caused to our municipalities if the crossing of the floor had been allowed to happen as envisaged in the previous drafts of the crossing-of-the-floor bills - that is, in February and September of each year in the second, third and fourth year between elections.

As Salga we are happy to note that our concerns have been given due consideration and that the crossing of the floor will only take place in September of the second and fourth year between the elections, thus creating the land of stability required to advance democracy, development and effective delivery of services at the local sphere of government. September is also appropriate because it comes after the annual adoption of municipal budgets in July, and so the crossing will not undermine the crucial budget adoption process.

We are also happy that the disparity or the inconsistencies of the crossing between the ward and provincial councillors have been addressed. We are satisfied that all the councillors are going to be treated the same under the new legislation.

Our system of a developmentally oriented local government is new and must therefore be nurtured. We cannot allow a system to be fundamentally tampered with, resulting in instability, little or no service delivery and ultimately the disillusionment of the very people we are supposed to serve.

The current electoral system in the Local Government: Municipal Structures Act is very closely linked to the model of local government. The model was significantly based on the prohibition of floor crossing. In respect of both the constitutional amendment and the amendment of the principal Act by this Bill, there has been a concern to provide for floor-crossing in a way that does not erode the foundations of the new model of local government, especially the concepts of democracy underpinning it.

We therefore believe that the suite of legislation that would regulate the crossing of the floor by councillors will contribute to the development of our fledgling local government system. It will bring stability to those councils where difficulties have been experienced as a result of the internal party-political dynamics.

The provisions to allow for the crossing of the floor have consequences for the composition of district councils, metropolitan subcouncils and other municipal structures and committees. Among other matters the Bill provides for the reconstitution of metropolitan subcouncils in terms of a new formula that makes provision for floor-crossing.

Whilst it is difficult at this stage to fully anticipate all the consequences that the crossing of the floor will have for local government structures, Salga will monitor developments closely and will not hesitate to return to this forum should insurmountable difficulties be experienced in the implementation of the legislation.

We would also urge the Department of Provincial and Local Government to play a full and effective role in ensuring that all the practical consequences of floor crossing are catered for through legislation, including regulations. We cannot afford to find ourselves in a position, three or four months down the line, where councils are involved in protracted litigation as a result of inconsistent application of the law.

Similarly, the provisions on crossing the floor also confer additional responsibilities on the Independent Electoral Commission. Salga therefore urges the IEC to put the necessary infrastructure and procedures in place to ensure that the provisions of item 7 of the new Schedule 6 (a) as provided for in the Constitution of the Republic of South Africa Amendment Bill could be implemented smoothly in the local government sphere.

Salga notes further, and with appreciation, the efforts by the Portfolio Committee on Justice and Constitutional Development in compiling the following pro forma notices: firstly, the notice to the electoral commission; secondly, change of membership of a party; thirdly, becoming a member of a party; and lastly, ceasing to be a member of a party. It would be the absence of such pro forma notices that may result in the inconsistent application of the law and resultant court challenges.

We must continue building our local government system. We must continuously seek new and imaginative ways of delivering on our election promises. We must do so without sacrificing the principles of democracy that underpin our system of government. We must continue tirelessly in these endeavours so that we may ultimately realise a better life for all our people. [Applause.]

Mr K D S DURR: Chairperson, there are very many anomalies left in this legislation which need clarification, and I am therefore pleased to hear what the Minister had to say in his introductory remarks.

Take, for example, the unfairness of a provincial parliamentarian who changes his or her mind and crosses the floor. This parliamentarian not only changes the mind of the 35 000 or so voters that put him or her there, but also, by force majeure, then could change the mind or endanger the seat of the member of the NCOP of the same political party, thus doubly frustrating the views of the electorate, I ask the Minister to look at that, please.

We are not against the principle of crossing the floor at all. What we are against at the moment is the prematureness of this measure, given the fact that the Slabbert commission has just been appointed and currently has already started hearings on the subject. In fact, my party has already appeared before them, as have other parties.

As Slabbert himself said - or Idasa said, in recent hearings before the House - to finalise the provisions of the membership Bill before the Slabbert commission has offered its recommendations would, in our opinion, pre-empt the matter, in effect putting the cart before the horse. We agree with that.

We also think that it is premature. We think the legislation is designed to meet the short-term needs of a particular political party, and we do not think it is right to tinker with the Constitution in that way. In fact it is a precedent that we believe could later come back to haunt us.

Thirdly, we are concerned about the indecent haste in ramming the legislation through when its consequences have not been dealt with. For example, in the case of a departing member who loses his or her seat and the money to support that seat, who deals with the liabilities or contingent liabilities that he or she leaves behind - the lease for a constituency office, hire-purchase agreements, staff and so on? That is a matter I think will also have to be considered.

We are not against the principle of crossing the floor. We think, in fact, that it could be a useful tool in a democratically elected, representative parliament, but not with the current list system of proportional representation that we have as it is currently constituted. That is our view. It is significant that our view is shared by other authoritative bodies, for example the IEC itself, which said recently when it gave evidence before the committee that there were problems and that the instability created by crossing the floor and by parties merging and subdividing would be, and I quote, ``much worse than nationally and provincially at local government level’’. The IEC added:

There are a substantial number of smaller parties represented in municipal councils, as well as a relatively large number of hung councils where no one party holds an absolute majority. This instability will undoubtedly filter through to district councils and local councils.

Salga themselves said in their evidence that even three times in five years will cause instability. We agree that that could create instability.

We also have no less an authority than the Constitutional Court itself. [Time expired.]

Mr V V Z WINDVOëL: Chairperson, I think the member is very fortunate. I wanted to ask him a question, but fortunately his time ran out.

Mr J F AULSEBROOK (KwaZulu-Natal): Mr Chairman, I must begin by stating that the legislature of KwaZulu-Natal, by a simple majority, supported the section 74 and 76 Bill, but I will express the views of the three parties that opposed the Bill in our legislature, which went to a division in the House. Those parties were the ACDP, the UDM and the IFP. I want to make it very clear the position that I occupy here today.

Please allow me once again to briefly motivate our stand in principle against these Bills. In the 1999 election, not a single representative, MPP or MP, in the Republic of South Africa received a single vote. No one’s name appeared on any ballot papers. Not one of those public representatives can prove that they received a single vote. The voters voted for political parties on the basis of their policies, their principles and their collective leadership.

I challenge any member of the House to prove otherwise. The names on the ballot paper were the names of political parties. This proves that we were all democratically elected in the system we have in this country through our parties. We, whose names appeared on party lists, were collectively elected and serve at the grace of our parties. That, whether we like it or not, it is beyond all doubt and is the position, given our electoral system. I ask what it means when we say that we serve as a collective of our parties that nominated us? In most cases we were elected through internal democratic processes within our parties.

We now need to look at the principle of the issue we are debating, certainly from the perspective of those parties that opposed it, which, I submit, is contained in the question: What gives the individual the right to violate the basic principle of representative democracy? The answer is obvious and very simple. Nothing. An MP has no right to turn his back on the voters who voted for his party, no moral right. By turning his back on voters such an MP is telling us, ``I do not care what you think. I do not care what mandate you gave me. I do not care about you, I only care about my own selfish position and my own political future.’’

Had the electoral system been different, if it were constituency-based, things could, of course, have been viewed very differently. If an MP were elected in a constituency where the voters voted especially for him or her, that would be a very different story. Voters from a member’s constituency who elected that member may be consulted and may then support the individual’s crossing of the floor. In that case crossing of the floor would be the right thing to do and morally justifiable. But if the electorate does not support members’ crossing, then those MPs and MPPs will soon discover that it is a short cut to ending their political career. [Interjections.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! there is so much noise in that corner that we cannot hear Mr Aulsebrook. Would the member please continue.

Mr J F AULSEBROOK: Why do I mention this, as it is not applicable to us MPs and MPPs? Purely because there are those who argue that nearly all First World democracies - we have heard that in this House from two members who spoke earlier - provide for crossing the floor in their legislation. That may be true, but they fail to acknowledge that it takes place within the parameters of a very different electoral system.

Given what I have said, I am rather surprised that the ex-DP component of the DA has seen fit to support this legislation. I would have thought that they would share the view that if an MP or MPP were dissatisfied with their party, they would do the right thing and resign.

Now let us turn to local government, where a similar Bill provides for the crossing of the floor. It is turning certain municipalities into a merry-go- round of political prostitution.

We are aware that this amendment within our given electoral system would open the door for the undemocratic behaviour that is being experienced currently at municipal level, and we have heard that from members of all parties here. Public representatives have generally not been held in very high esteem by the electorate in this country, although we have all been working hard at improving that image. Indiscreet behaviour by individual members, regardless of their political party, usually reflects negatively on all the members. This legislation could exacerbate the problem - that is, the public negative perception of public representatives.

The second principle on which we oppose this Bill is the ad hoc manner in which the Constitution is being changed and dealt with. In this case the motivation for this change appears to be more for political expediency than to improve the democracy of this country. [Time expired.] [Interjections.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! I know some members do not like some of the comments, but a member must be given the opportunity to address the House.

Mr N V E NGIDI (KwaZulu-Natal): Chairperson, in 1996 the IFP went to the Constitutional Court and called the antidefection clause immoral. Today they are standing in this House and calling the laws that regulate defection immoral. Where do they stand? [Interjections.] It is with the greatest pleasure that I rise to support the Bills regulating the crossing of the floor.

I believe that if these Bills become law, democracy will have been entrenched in this country. I believe that the pillars of freedom for which we fought for so long and sacrificed so much will be cast in iron. Members of Parliament, provincial legislatures and local government will taste real freedom. For the first time they will be able to belong to parties of their choice without any fear.

These Bills herald the end of the suffocating grip that party bosses have over their membership. No longer must a person remain in a party even when his or her conscience dictates otherwise. Members of Parliament will now be able to follow their conscience and leave a party that is patently no longer true to the ideals and principles that attracted that member to that party in the first place.

The Bills are particularly good for KwaZulu-Natal. This is a province where, at times, when one decides to follow the dictates of one’s conscience, dire consequences visit one. Killing those who change political allegiance will no longer benefit anyone as the death of a member will not bring back the seat to the party that has lost it. Inherent to this Bill, therefore, is the protection of lives. Furthermore, the DP will no longer subject its members to lie-detector test to ensure their loyalty.

Those opposed to the Bill have argued that the Bills will bring about instability in South African politics. Nothing can be further from the truth. Firstly, crossing the floor can only take place twice within a parliamentary term. During the present term it will take place only once. Secondly, crossing of the floor can only happen after a year has passed after general elections. The Bills have safety valves to ensure stability.

Another argument put forward even more forcefully is that the Bills distort the will of the electorate. When voters exercise their right to vote, they do so on the basis of issues. They do not vote for political parties based on a whim or inexplicable fancy, but do so on the basis of a programme that a party puts forward in its election manifesto. Voters then expect parties to do specific things in Parliament, if the party veers away from what it promised, the electorate will withdraw its support. The same right must therefore be afforded to members of Parliament. Why should anyone be forced to remain in an unhappy marriage.

It has also been argued that the Bills are a result of the events that are unfolding in the Western Cape and the desire of the ruling party to control the province. I have my doubts as to the veracity of these claims. My doubts are based on my knowledge of debates that have been taking place within the ruling party. I would therefore hold the view that the Western Cape events may have precipitated the process, but definitely did not initiate it.

Even if there is truth in these arguments, I believe that the worth of these Bills cannot be judged on what is happening in the Western Cape only. These are not Western-Cape-only Bills; they have national application. The architects of these Bills must have looked at the national picture. We need to agree that these Bills deepen and entrench democracy in this country. Beside crossing the floor it is going to affect not only one party, but all parties.

By the way, events that are unfolding in Western Cape started just after the 1999 elections, not when we started debating these Bills. South Africa is not the only country where crossing of the floor takes place. India may be the only country now that still prohibits defections within its political system. Recently in the USA, a Republican senator who was no longer happy with George W Bush’s policies crossed the floor, moving away from the Republican Party and there was no train smash.

I believe that we should embrace these Bills, for their time has come. [Applause.] Mnr C ACKERMANN: Mnr die Voorsitter, hierdie pakket van wetgewing lei nog ‘n nuwe era en ‘n opwindende era in die Suid-Afrikaanse politiek in. Die Wes-Kaap steun dit met geesdrif. Alhoewel neergekyk word op Afrikaregerings en hoe hulle die demokrasie toepas, staan Suid-Afrika op die spreekwoordelike bogrond, die rots van Gibraltar wat betref ons konstitusionele ontwikkeling. Trouens, ons is verskeie lande ver vooruit op hierdie gebied en ons word toenemend beskou as ‘n rolmodel waarheen onderontwikkelde lande op konstitusionele gebied kan beweeg.

Suid-Afrikaners kan opreg trots wees op ons land se prestasie om ‘n Grondwet daar te stel wat nie alleen eie aan die Afrikabodem is nie, maar wat ook die toon aangee in ontwikkelende lande en selfs in moderne demokrasieë. Ons eie voorsitter se toespraak by die eerste Wêreldkonferensie van Tweede Kamers in Parys het hierdie impak van die Suid- Afrikaanse model bevestig. (Translation of Afrikaans paragraphs follows.)

[Mr C ACKERMANN: Mr Chairman, this package of legislation introduces another new and exciting era in South African politics. The Western Cape supports it with enthusiasm. Although African governments and the manner in which they apply democracy are disparaged, South Africa is on the proverbial high ground, the rock of Gibraltar concerning our constitutional development. As a matter of fact, we are far ahead of several countries in this field and we are increasingly viewed as a role model which underdeveloped countries can emulate in the constitutional sphere.

South Africans can truly be proud of our country’s accomplishment of creating a Constitution that is not only peculiar to the territory of Africa, but is also a leading example in developing countries and even in modern democracies. Our own chairperson’s speech at the first World Conference of Second Chambers in Paris confirmed this impact of the South African model.]

This package of legislation will, of course, have a major impact on the present political scene in South Africa. Constitution and constitution- making is a process and therefore not static. Realignment in South African politics is a given; it is a certainty, and therefore the need for this legislation to create a stable democracy to serve South Africa first.

I have no doubt that this legislation will probably have a great impact on the Western Cape local government, both positive and negative impacts on the DP-Democratic Alliance. On the positive side, the Cape Town unicity will be free of the shackles of the present DP/DA leadership.

I am prepared to give a 100:1 bet that Gerald Morkel will be removed as the mayor of the Unicity of Cape Town. [Applause.] Who wants Gerald Morkel in any case? This is the latest report from Sapa today on the Desai commission, and I want to read it to hon members:

Alleged German fraudster Jürgen Harksen has claimed that Gerald Morkel’s lawyer phoned him on the eve of his latest round of testimony to the Desai commission, urging him to stick to a particular version of events … The commission’s leader of evidence, Adv Webster, reported back soon after that a number the call came from was apparently that of Paul Katzeff, Morkel’s attorney. He told me I must stick to the version (that) I have not given money to Morkel's court case,'' Harksen told the commission.In other words Mr Katzeff was telling you to lie?’’ asked Adv Peter Hodes, who is appearing for Morkel and the Democratic Alliance. ``To use your words, yes,’’ replied Harksen.

Here is another report from the SA Broadcasting Corporation:

Jürgen Harksen, German fugitive and alleged fraudster, today said he was prepared to spill the beans on links between Gerald Morkel and Vito Palazzolo, alleged Mafia kingpin.

So who wants Morkel, who is dancing with the Mafia and disregarding the rule of law in South Africa? [Interjections.] The DP/DA is too scared to get rid of Gerald Morkel because they are afraid he will spill the beans and expose Tony Leon. [Interjections.]

If that party does not want to serve Cape Town’s interests and if they do not want to serve South Africa’s interests, the representatives of the people in Parliament will do so by supporting this legislation. [Interjections.]

South Africa does not deserve a leader of the opposition and DA/DP leader who regularly drags South African politics through mud baths. I am now reading for the House from statements, statements by Tony Leon. His own deputy leader, a black person who was a distinguished colleague of this House - what does Mr Leon say about William Mnisi? ``DP leader Tony Leon on Wednesday turned on his former deputy, William Mnisi, for defecting to the NP, describing him as a confused and bedraggled rat, who had clambered onto a sinking ship.’’ [Interjections.]

Here is another quote from Hansard in Parliament, on the late Minister of Safety and Security. What does he say about that Minister? He said: ``It sends into the Ministry of Safety and Security a buffoon, a blusterer and a bully to go and fix it.’’ Next is what he said about the President of South Africa - on the President of South Africa, by the Leader of the Opposition!

• ``Mr Mbeki is treating the DA like he treats anyone and anything that gets in his way. He is a ruthless man who does not like to be thwarted.’’ [Interjections.]

This is a shame: to say that the President is a ruthless man; that the senior Minister of Safety and Security is a buffoon; that his own previous deputy leader, a black person, is a bedraggled rat. We need leaders that deserve respect in South Africa, not fight-backs clouded with personal smears. [Interjections.]

Through his actions he has placed a question mark over all politicians and put them in a bad light. This is not acceptable. The realignment of opposition politics can only benefit if this legislation makes it possible. South Africa needs more respectable opposition. It needs participatory government. It needs contributing to the Government from opposition benches, whilst maintaining the right to differ.

But, on the other hand, this legislation will also have a negative effect on politicians. Those who decide to stay in the DP-DA will have a big surprise. I predict today that councillors who stay in the DP will soon have a letter from the national chairperson, Mr James Selfe, or maybe from the hon Krumbock, telling them to give up to 10% of their gross salary to the party. [Interjections.] Where will they get the funds to pay all their legal costs that are jumping into the hundreds of thousands of rands? Where will they get money to pay their overdraft, according to reports, of millions of rands? Where will they get money for their extravagant rallies and meetings where they rent crowds and bus them in? [Interjections.] They want to create perceptions of a party that is enjoying their support. [Interjections.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr L M Mushwana): Order! I see you are jumping up like popcorn; you do not want to sit down. [Laughter.] Can you settle down, hon members, and just listen.

Mr C ACKERMANN: The South African official opposition, the DP/DA, has become a dishonour for our young democracy. May this legislation lead to a broader representation of different race groups in political parties. The Western Cape will play a positive role to bring about a better South Africa. [Applause.]

The CHIEF WHIP OF THE COUNCIL: Chairperson, I only wish that today’s debate was broadcast live for the nation to hear the impassioned plea of members of the New NP seeking to be released from this bondage which they describe eloquently as immoral. It would be immoral if the majority party, having noted the plea and having noted the circumstances which subjected councillors and public representatives to this - what they describe as - immoral'' bondage, to turn their back and say,Well, we have no role in it. We do not want to shape the political discourse of the future. We do not want to alter the landscape in such a way that we could perpetuate nation-building and reconciliation’’.

Mr Lever has quite conveniently alluded to the marriage between the ANC and the New NP. What he has forgotten to tell this House is about the estranged relationship or the divorce that has occurred between the New NP and the DA. That marriage was, in fact, consummated. It assumed a new and separate name, which is the cause of the misery and remorse that members are suffering today, and it became very clear, not out of the evidence that I produced or adduced in this House, but from the words of Mr Matthee: We wanted to move forward; they wanted to move backwards. We wanted to reconcile and build; they wanted to alienate and destroy. [Interjections.] Certainly, those were constructive grounds for a legitimate and reasonable divorce. We commend the New NP for initiating the divorce proceedings and bringing some sanity to the political terrain. [Applause.] [Interjections.]

I heard with interest the comments by Mr J Aulsebrook from the KwaZulu- Natal delegation. One will note from the speakers’ list that he was speaking as a spokesperson for his province. He is duly mandated in terms of its rules and in terms of the Constitution to be a spokesperson for that particular legislature. And within the constitutional framework of the National Council of Provinces and its relationship with the legislatures, it is very clear that permanent delegates, on issues that affect legislation which affect the provinces, speak as mandated representatives.

Now I find it rather rather extraordinary when a legislature, through its own mechanisms, through its own internal rules, develops a particular process in which that mandate is conferred. It does so, in the context of KwaZulu-Natal, as follows: Where there is not 75% agreement in the committee regarding the support of legislation, it would refer the matter to plenary where a vote would be taken and the will of the majority would prevail. That is the democratic process to which the IFP, the ANC and all political parties subscribe, notwithstanding this democratic process.

Mr Aulsebrook finds it rather extraordinary. I find it beyond comprehension that he would come here now, given the fact that the will of the democracy had been expressed in the legislature in relation to this legislation, and put a position that is adverse to that taken in the legislature. This is the kind of latitude we should not tolerate in the context of matters that affect a province.

If, at all, Mr Aulsebrook came and approached the Chief Whip and said, ``I would, on behalf of the IFP, wish to put forward a particular view which is adverse to that of the mandate that was conferred to me’’, certainly in the process of our democracy and in the manner that is consistent with our democracy, we would have permitted such articulation of the views, however ineloquent they may have been.

I think what is central to this debate is a lack of understanding of a constitutional provision, which was referred to by the hon Mr Nona Maloyi and by the chairperson of the Select Committee on Local Government and Administration. This is that, in terms of the Constitution, any crossing of the floor could occur by virtue of national legislation which may be passed within a reasonable time. The Constitution quite clearly sets certain thresholds for certain amendments. If it is, for example, an amendment to section 1 of the Constitution, a 75% majority is required.

If it is a Bill of Rights amendment, one requires a two-thirds majority. Yet when it comes to an amendment to the electoral process to permit crossing of the floor, one requires a simple majority and not even a constitutional amendment. If at all these members were true to the Constitution and subscribed to its values, they would not be surprised. Given the background, given the fact that they previously vociferously opposed the ANC when it said that it would not allow crossing of the floor and wanted to retain a pure PR system, given the fact that that was the position of both the IFP and the DP, to now suggest that this relationship is tainted or immoral is somewhat beyond my understanding.

I think the House has spoken. It is very clear and evident that these Bills have to be supported. May I conclude by saying that the NCOP, in this particular process, reached out to the nine provincial legislatures as well as local government structures. What we have here in terms of our amendments, particularly with regard to the frequency of the crossing of the floor, the timing when it should occur, is in fact a reflection of our interaction with provincial legislatures and local government. We must build on that exercise.

Furthermore, it was very heartening to listen to Salga participating in such a meaningful way in this debate. We want to draw attention to the fact that, given the interest that was shown by local government delegations in the various provinces, we would like to dedicate the next provincial week, 8-13 November, to purely local government issues and we would like the local government associations to join hands with the NCOP in reaching out to the various legislatures, as partners in identifying, discussing and debating various issues and challenges that confront local government. With these words, I thank you, Chairperson. [Applause.]

The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, thank you very much. I am rising essentially to thank hon members for what has been a very good and successful debate on these Bills. However, it becomes unavoidable to make a few observations in respect of some of the remarks that were made in this House.

Regarding the remarks by Kgoshi Mokoena, I agree with them totally. It is improper in the extreme on the part of anybody to circulate forms and go around intimidating public representatives in the vain hope that they will not defect from parties that are doing this. We would want to believe that all decent party representatives are going to insist that their parties desist from doing this kind of thing.

Secondly, a remark relating to the pensions buy-back. Unfortunately, this law cannot entertain that. It is not the right place, therefore, to debate that, but if it does arise as an issue, the hon members who feel concerned that they could be entitled to this benefit should make sure that it is appropriately discussed.

I think we must commend the IFP for doing what I believe is the right thing, namely participating in a constitutional debate. All along they have been boycotting such debates. At the same time, if we respond by simply denying the passing of this sort of legislation, we are sacrificing our morality on the altar of political expediency.

The hon member has reminded us that in 1996 the same argument was made by the IFP to the Constitutional Court, but the wind was blowing in a totally different direction. In other words, one acts immorally by not doing it and one acts immorally by doing it. I would want to be addressed one day on this obvious inconsistency. We are not acting unconstitutionally, but we are doing what the Constitution says we may do. The Constitution itself - quite wisely, so it turns out - says that we may pass legislation, and that is exactly what we are doing. No court of law, including the Constitutional Court, would find that we are acting unconstitutionally by doing that.

I want to help those who are much younger than I am to understand the DP. It has a very interesting and chequered history. Many moons ago, they were indeed opposed to universal suffrage in this country and, instead, they were advocates and preachers of the gospel of a race-based qualified franchise for blacks. [Interjections.] White hobos without the qualifications that Dr Mandela has qualified merely because they were white. Mandela had to have a certain standard of education, be a property owner, according to them.

Recently they were screaming blue murder on media allegations regarding what was happening in Zimbabwe between the government and judges. When they do the same thing, we are supposed to scream, ``Hallelujah! It is right now to do so!’’ Again, when not so long ago, we were actually saying that the law enforcement agencies must investigate certain allegations against members of the ANC, such as Toni Yengeni, they screamed that it was right. When the spotlight tended to shift in their direction, it was wrong. There is manipulation and abuse, without telling the country who is responsible. [Applause.]

More than that, they are then saying that - it is quite correct, by the way

• due process requirements apply to all. They never had the decency to say that even those members of the ANC who had been investigated were not guilty till proven so. They were guilty until they could establish their own innocence, according to the DP. This is sheer nonsense and sheer inconsistency. Again, it is characteristic of the DP.

Lastly, it is interesting that in this day and age, when indeed we want to believe that we as a country have consciously turned our backs on whatever the past represented, they still use spies and things like that. If it is true that what they were doing here extended to the violation of the law, it goes without saying that those who were running those spy circles and intercepting people’s communications will have to pay. It is criminal to do so under the law, unless one is part of an entity that is recognised by law as having the authority to do so and one is doing so on the basis of permission by a judge and it relates to particular offences as listed in the annexure to the law. If one is going beyond that, one is guilty of an offence.

They were doing it here, even buying machines to spy on us here, because we are within the four kilometre radius. Things that they were frowning upon as long as they were done by other people, allegedly, are being done by them here. Again, subjecting duly elected members of this House and other legislatures to lie detectors is something which does not belong in a democracy. [Interjections.] I want to believe it belongs elsewhere, but then again, they are being consistent. The old saying tells us: A leopard will never change its spots. [Applause.] Debate concluded.

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! I shall now put the question in respect of the first order. The question is that the Bill, B17B-2002, and the amendments in B17C-2002 be agreed to. As this decision is dealt with in terms of section 65 of the Constitution, I need to ascertain very clearly whether delegation heads are present. Can I ascertain in the Eastern Cape? Where is the delegation head? Thank you. Free State? Gauteng? KwaZulu-Natal? Mpumalanga? Thank you. Northern Cape? Northern Province? North West? Western Cape? [Interjections.] Thank you.

I shall now also allow provinces the opportunity to make their declaration in terms of Rule 71 if they so wish. Is there any province wishing to make any declaration of vote? There is obviously none.

We shall now proceed to the voting on the question. I shall do this in alphabetical order per province. Delegation heads must please indicate to the Chair whether they vote in favour or against or abstain from voting. Eastern Cape?

Nksz B N DLULANE: Siyaxhasa. [We support.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Free State?

Mong T S SETONA: Re a dumela. [We agree.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Gauteng?

Mof J L KGOALI: Re tlatsa molao ntle le qiyaqiyo. [We support the Bill without any compunction.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): KwaZulu-Natal?

Nk B THOMSON: Siyahambisana. [We are in agreement.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Mpumalanga?

Man M P THEMBA: Mpumalanga ifamba nawona. [Mpumalanga supports.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Northern Cape?

Mrs E N LUBIDLA: The Northern Cape supports.

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Northern Province?

Mna M I MAKOELA: Northern Province e a o amogela. [Northern Province accepts it.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): North West?

Rre Z S KOLWENI: North West ke wa rona [North West supports.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Western Cape?

Mnr C ACKERMANN: Ons steun, Voorsitter. [Chairperson, we support.]

[Applause.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): All provinces voted in favour. I therefore declare the Bill and the amendments agreed to in terms of section 74(3)(b) of the Constitution.

I shall now put the question in respect of the second order. The question is that Bill B25-2002 and the amendments in B25A-2002 be agreed to. I have already ascertained that delegation heads are present. Any province willing to make a declaration of vote? There is none. We shall once again proceed to voting on the question. Please indicate whether you vote in favour, abstain or against. Eastern Cape?

Nksz B N DLULANE: Siyaxhasa. [We support.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Free State?

Mr T S SETONA: We support.

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Gauteng?

Mof J L KGOALI: Re a tlatsa. [We support.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): KwaZulu-Natal?

Nk B THOMSON: Elethu. [We support.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Mpumalanga?

Man M P THEMBA: IMpumalanga iyawesekela. [Mpumalanga supports.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Northern Cape?

Mrs E N LUBIDLA: The Northern Cape supports.

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Northern Province?

Mna M I MAKOELA: Re dumelana nao. [We support.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): North West?

Mr Z S KOLWENI: In favour.

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Western Cape?

Mnr C ACKERMANN: Ons steun. [We support.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): All provinces voted in favour. [Applause.] I therefore declare the Bill and the amendments agreed to in terms of section 65 of the Constitution.

We now come to the question with respect to the third order. The question is that the Bill be agreed to. In accordance with Rule 63 I shall first allow political parties the opportunity to make their declaration of vote if they so wish. Any political party? There is none. We shall now proceed to the voting on the question. Those in favour will say ``Aye’’.

HON MEMBERS: Aye.

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Those against will say ``No’’. I think the ayes have it. The majority of members have voted in favour. I therefore declare the Bill agreed to in terms of section 75 of the Constitution.

On that note, that will conclude the business of the day and the House is adjourned.

The Council adjourned at 17:02. ____

            ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS

ANNOUNCEMENTS:

National Council of Provinces:

1. The Chairperson:

 (1)    Bill passed by National Council of Provinces on 18 June 2002: To
     be submitted to President of the Republic for assent:


     (i)     Local Government: Municipal Structures  Amendment  Bill  [B
          22B - 2002] (National Assembly - sec 75).

National Assembly and National Council of Provinces:

1. The Speaker and the Chairperson:

 (1)    The Minister of Finance submitted the Wetsontwerp op Heffings op
     die Private Sekuriteitsbedryf [W 11 - 2002]  (National  Assembly  -
     sec 77) to the Speaker and the Chairperson on 18  June  2002.  This
     is the  official  translation  of  the  Private  Security  Industry
     Levies Bill [B 11 - 2002] (National Assembly - sec 77),  which  was
     introduced in the National Assembly by the  Minister  on  15  March
     2002.