by Nontando Guwa

In late 2007, the fringe parties’ waking nightmare, “floor crossing”, revisited the political scene, and once again the dominant party reaped where it had not sowed. There was hue and cry in the aftermath of what has largely been regarded as a most needless spate of political fraud.

As the dust settles it is clear that politicians have started taking heed of the justified complaints over the controversial piece of legislation that has been allowing some to jump ship mid-stream and make nonsense of the electorate’s party choices.

The floor crossing-legislation (Fourth Amendment Bill, 2002) was passed by Parliament in February 2003. The legislation amended the Constitution to allow elected representatives to change their political affiliations without losing their seats at national, provincial and local levels of government.

The Democratic Party (DP) and the New National Party (NNP) initially requested floor crossing in November 2001 as a means of formalising their unification into the Democratic Alliance (DA). The African National Congress (ANC), who held power to change the Constitution in the legislature, did not favour the measure at the time. However, when the NNP leadership announced their desire to leave the DA and form alliances with the ANC, the latter supported the legislation.

According to the amendments, in order to cross the floor from one party to another, or form a new party, or for two or more parties to merge, the person or group of people must constitute at least 10% of the membership of the party that is being forsaken.

Also, floor crossing is only permitted twice in an electoral term, in the second and fourth year after the General Elections from 1 to 15 September. Thus the floor crossing may only take place during the periods designated for such.

According to the Independent Electoral Commission (IEC) reports on floor crossing, the ANC has benefited the most from this system; but some other “smaller” parties have also managed to gain seats in the process. Part of the reason why the ANC and other “big” parties benefited the most from floor crossing is because of the 10% clause in the legislation. For instance, if an ANC member of parliament (MP) in the National Assembly wanted to cross the floor, s/he would need to rely on about 30 of his/her colleagues to do the same because the ANC has about 297 MPs in the National Assembly.

It is far easier for public representatives of small parties to cross the floor since they need to collude with fewer of their colleagues. If there are fewer than 10 members in a caucus, then the 10% clause effectively allows each member to cross the floor unilaterally.

This system has been the source of much controversy. The United Democratic Movement (UDM) fought hard against floor crossing, arguing that the legislation encouraged “cherry-picking” where larger parties offered more attractive and lucrative positions to members of smaller parties to lure them away from their parties.

The Azanian People’s Organisation (Azapo), Congress of South African Trade Unions (Cosatu) and other organisations supported the UDM in fighting against floor crossing. Azapo and many other critics of floor crossing argued that in a proportional representation (PR) system like we have in South Africa, voters do not vote for the individual candidate, but for a specific political party.

The number of votes cast for the political party determines how many seats that party gets in the legislature. The candidates equalling the number of votes parties got are chosen from the closed (or open) party list in the order of priority. The argument is that it does not make sense, either technically or procedurally, for members to defect to another party without vacating the seats that actually belong to the political parties they are deserting.

The truth of the matter is that MPs are in Parliament because their parties put them there in the first place. As much as MPs are in Parliament as individuals, and they are allowed to exercise their rights, it is in fact their party that put them there.

Of more concern is the growing perception that an exchange of money and fraud features in floor crossing. A question to ask is whether floor crossing strengthens our democracy or not. Is there empirical evidence that it strengthens democracy?

At national and provincial levels of government the floor-crossing debate is rife and ongoing. The parliamentary committee dealing with the matter is handling two draft Bills opposing floor crossing – one proposed by the DA and the other by the Inkatha Freedom Party (IFP). However, there is not much noise being raised about floor crossing at local government level.

Some critics say that floor crossing at municipal council level should be scrapped as it cripples functioning, decision-making and ultimately service delivery. Others say there is no evidence to prove that floor crossing at a municipal level has had as negative an impact as is evident at national level.

According to the IEC report on this year’s floor-crossing results, a total of 250 municipal councillors crossed the floor successfully, affecting the composition of 128 municipal councils. The three parties with the largest net gain from the 250 municipal councillors were:

• ANC with 53
• African People’s Convention with 36
• National People’s Party with 31

In terms of the loss, the three parties with the biggest net loss were:

• Pan African Congress of South Africa with 41
• Independent Democrats with 27
• National Democratic Convention with 22

Of the 128 municipalities affected by floor crossing, the provinces that had the most affected municipalities were:

• KwaZulu-Natal with 27
• Western Cape with 22
• Eastern Cape with 15

A majority shift is evident in KwaZulu-Natal where five municipalities that were controlled by the IFP are now controlled by the ANC. The IFP, DA and NNP each have the majority in one municipality.

The IEC report further reveals that 30 of the applicants were not successful; this was largely due to the 10% requirement. Overall trends that emerged during the floor-crossing window period included councillors moving from existing smaller parties to join bigger parties and independent councillors joining political parties.

During the floor-crossing period at municipal level in 2002, a total of 555 municipal councillors crossed the floor. During that period, the DA felt the major impact of floor crossing when councillors were leaving the party to join the NNP, which represented a whopping 61% of the total councillors who crossed the floor.

During the floor-crossing window period in 2004, a total of 486 municipal councillors crossed the floor successfully, and that affected the composition of 164 municipal councils. In 2004, the party which gained the most was the ANC, followed by the DA and the ID. This period also saw the majority of councillors of the NNP leaving to join other parties.

DA spokesperson Helen Zille said in the floor-crossing process, there is a lot of trading of positions with politicians often going for the highest bidder. She said that while the DA had “invited” certain politicians to join them from other parties, they were not offering posts and financial rewards as “certain groups were”.

This is, however, worrying to opposition voters, who were told that they were voting against the ANC. They cogently argue that they were betrayed.

At local government level, where the core business is to render and deliver services to the people, where a municipal council is the key decision-making structure, tensions and squabbles rising from floor crossing are bound to impact negatively on service delivery.

Most municipalities, particularly in the Eastern Cape (as one of the mostly affected provinces), are faced with many service-delivery and development challenges; the effects of floor crossing and political tensions are bound to impact negatively on service delivery and thus worsen an already bad situation.

One therefore wonders if floor crossing adds any value to the developmental process at local government level. President Thabo Mbeki in Parliament recently asked members of Parliament to discuss the matter. He said the process that was instituted after the adoption of the 1996 Constitution would be a perfectly legitimate way of approaching the floor-crossing debate.

An opinion poll recently undertaken by government on floor crossing also suggests that two thirds of all voters in South Africa are now against floor crossing. In the recent local government elections this became clear in respect of floor crossers: In the cities of Cape Town and Pretoria, not a single floor crosser who made themselves available for re-election were endorsed by the voters.
Surprisingly enough, a sudden change of heart was evident during the 2007 National Policy Conference of the ANC.

Conflicting recommendations arose on the matter of floor crossing, one commission recommending that floor crossing be retained pending further evaluation, another recommending that floor crossing be done away with.

The matter, however, was deferred to the National Conference in Limpopo in 2008.

This sudden change of heart from the ruling party, which benefited most from floor crossing, makes one wonder if it is a legitimate concern aimed at strengthening our democracy, or if it is just a case of kicking an already dying horse.

What is becoming evident, though, is that floor crossing is becoming increasingly unpopular.

The Local Government Transformer Dec 2007/Jan 2008