Brief Summary

Constitutional Law — Constitutional amendments — Validity of amendments — United Democratic Movement challenged the constitutionality of four Acts allowing floor crossing for political representatives without losing their seats, arguing they undermine the Constitution's basic structure and founding values — Court held that the amendments were passed in accordance with the required constitutional procedures and thus could not be challenged on those grounds.

Comprehensive Summary

Summary of Judgment

Introduction

This was an urgent constitutional challenge to a set of legislative measures designed to permit limited “floor crossing” (changes of party affiliation without loss of a legislative seat) in South Africa’s local government, provincial, and national spheres. The proceedings were brought in the Constitutional Court as the court of final instance on constitutional validity.

The applicant was the United Democratic Movement (UDM). The respondents were the President of the Republic of South Africa, the Minister for Justice and Constitutional Development, and the Minister for Provincial and Local Government. Multiple political parties were admitted as intervening parties, including the African Christian Democratic Party (ACDP), African National Congress (ANC), Inkatha Freedom Party (IFP), Pan Africanist Congress of Azania (PAC), as well as the Premier of the Province of KwaZulu‑Natal. Two organisations with electoral expertise, the Institute for Democracy in South Africa and the Research Unit for Legal and Constitutional Interpretation, were admitted as amici curiae.

The procedural history was central to the relief ultimately crafted. The UDM initially challenged the legislation in the Cape High Court on an urgent basis. A single judge and later a full bench heard the matter, and the full bench suspended the commencement and/or operation of the four Acts pending the Constitutional Court’s determination. During the Constitutional Court recess, the Court convened on 3–4 July 2002 to address urgency and issued an interim order to stabilise the position pending a full hearing. The full hearing took place on 6–8 August 2002, and judgment was delivered on 4 October 2002. This judgment (No 2) dealt only with the main constitutional application, not with the reasons for the interim order nor the government’s appeal against the High Court’s interim relief (both dealt with in contemporaneous judgments).

The general subject-matter of the dispute was whether Parliament had constitutionally enacted a statutory and constitutional framework allowing limited floor crossing, and in particular whether certain amendments and ordinary legislation were within Parliament’s powers and complied with the manner and form requirements imposed by the Constitution and transitional provisions.

Material Facts

Following the June 1999 national and provincial elections, the Democratic Party (DP), the Federal Alliance (FA), and the New National Party (NNP) initially contested elections separately but formed the Democratic Alliance (DA) shortly thereafter. Because members of Parliament and provincial legislatures could not then change parties without losing their seats, DP/FA/NNP representatives retained their original party memberships while operating in alliance. In October 2000 municipal elections, the DA contested as a single party.

In November 2001, a political realignment occurred when the NNP withdrew from the DA, leaving the alliance under predominant DP control. The Court treated as the relevant political backdrop that, following this split, public representatives who wished to leave the DA (and other representatives affected by the realignment) could not do so without losing their seats under existing anti-defection rules.

In response, Parliament passed four enactments in June 2002 to permit limited floor crossing across spheres of government. Two were constitutional amendments and two were ordinary Acts of Parliament. The relevant enactments were the Constitution of the Republic of South Africa Amendment Act 18 of 2002 (First Amendment Act), the Constitution of the Republic of South Africa Second Amendment Act 21 of 2002 (Second Amendment Act), the Local Government: Municipal Structures Amendment Act 20 of 2002 (Local Government Amendment Act), and the Loss or Retention of Membership of National and Provincial Legislatures Act 22 of 2002 (Membership Act).

The framework created by these measures, as relied on by the Court, permitted floor crossing only during limited “window periods” of fifteen days in the second and fourth years after an election, subject generally to a 10% threshold requirement (at least 10% of a party’s representatives had to leave). The framework also created a once-off fifteen-day period immediately following commencement of the legislation during which, in some respects, the threshold requirement would not apply.

The High Court litigation and the Constitutional Court’s interim order had a practical effect on the operation of these mechanisms. By the time the Constitutional Court finally determined the merits, the first contemplated local government window period in Schedule 6A had, as a matter of time, expired while the legislation’s operation was effectively restrained by interim relief. This factual position became material to what a just and equitable remedy required, even though most constitutional challenges failed.

Legal Issues

The Court was required to determine the constitutionality of the four enactments, but it emphasised that the dispute was not about the political merits of floor crossing. The central questions were legal and constitutional: whether the enactments were authorised by the Constitution, and whether they were enacted in compliance with the Constitution’s required procedures.

A first cluster of issues concerned challenges to the two constitutional amendments and related legislation based on alleged incompatibility with constitutional fundamentals. These questions required a mixture of constitutional interpretation and the application of constitutional standards to legislative design. The Court was asked to consider (i) whether the amendments were impermissible because they undermined a purported “basic structure” of the Constitution, (ii) whether the amendments were inconsistent with the founding values in section 1 (which would affect the applicable amendment threshold under section 74(1)), and (iii) whether the measures infringed the voting and political rights in section 19 (which could implicate section 74(2) amendment requirements).

A second cluster of issues concerned whether the challenged provisions violated the rule of law because they were not rationally related to a legitimate government purpose, and whether purpose could be impugned as illegitimate by reference to alleged political advantage.

A distinct and ultimately dispositive issue applied specifically to the Membership Act (national and provincial legislatures). The question was whether Parliament had validly exercised a special transitional power in item 23A(3) of Annexure A to Schedule 6 to amend anti-defection rules by ordinary legislation only if done “within a reasonable period after the new Constitution took effect”. This was primarily an interpretive and “manner and form” constitutional issue, turning on the meaning and enforceability of the temporal limitation and the consequences of non-compliance.

Court’s Reasoning

The Court began by locating the analysis within the constitutional architecture for amendments. It reasoned that amendments passed in accordance with section 74 become part of the Constitution, and once part of the Constitution they cannot be attacked for inconsistency with other constitutional provisions simply because they alter the constitutional balance. The Court stated that there is generally “little if any scope” for challenging constitutional amendments passed in accordance with prescribed procedures and majorities, and that the decisive question becomes whether the amendments fall within the scope of the relevant subsection of section 74 governing the amendment process.

On the basic structure contention, the Court drew on Premier of KwaZulu-Natal and Others v President of the Republic of South Africa and Others [1995] ZACC 10; 1996 (1) SA 769 (CC); 1995 (12) BCLR 1561 (CC). It treated that authority as recognising, at most, a theoretical possibility that a purported amendment so radical as to “abrogate or destroy” the Constitution might not qualify as an amendment at all. However, the Court held it unnecessary to address such extreme cases on the facts before it. It reasoned that democratic electoral systems vary widely, some permitting defections and others not, and that neither proportional representation nor anti-defection mechanisms are so fundamental as to preclude any amendment. Accordingly, the basic structure argument failed.

On the contention that the measures violated the founding values in section 1, particularly multi-party democracy and the rule of law, the Court adopted an interpretive approach anchored in constitutional text and structure. It analysed the meaning of “a multi-party system of democratic government” in section 1(d) as requiring a political order allowing different political groups to organise, promote views through public debate, and participate in free and fair elections subject to reasonable regulation consistent with an open and democratic society. The Court then assessed whether the floor-crossing scheme undermined that order.

A key step in the reasoning was the Court’s treatment of the relationship between multi-party democracy and proportional representation. The Court pointed out that constitutional principle VIII (from the interim constitutional framework) included “in general, proportional representation,” but section 1(d) of the 1996 Constitution omitted proportional representation from the founding values. The Court found this omission significant and held that proportional representation could not be implied as a requirement of section 1(d). It further reasoned that many multi-party democracies do not use proportional representation, so proportional representation was not a necessary condition of multi-party democracy as such.

The Court then addressed whether an anti-defection clause is an essential component of proportional representation and thus constitutionally required. It acknowledged the tension between voter expectations and representative conduct and recalled that, during certification, the Court had rejected arguments that anti-defection clauses were inherently undemocratic, noting that under list proportional representation voters vote for parties and parties are accountable to the electorate. However, it rejected the further inference that proportional representation without anti-defection is unconstitutional. The Court observed that it had been referred to no authority holding that—absent a constitutional or legislative requirement—a legislator must resign upon changing party allegiance. It concluded that, where the law prohibits defection, courts must enforce it, but where it does not, courts cannot create such a prohibition.

In assessing the applicants’ argument that South Africa’s political conditions (including the governing party’s parliamentary strength) made anti-defection necessary to protect smaller parties and multi-party democracy, the Court treated the design of thresholds and the policy choice about floor crossing as matters for Parliament unless they contradict constitutional standards. It held that the fact that a scheme may disadvantage some parties does not make it unconstitutional, analogising to the permissible effects of other electoral system choices.

The Court also rejected the section 19 argument. It construed section 19 as protecting rights directed to elections, voting, and participation in political activities, but not as granting voters legal control over representatives between elections. The Court reasoned that voters’ remedy for dissatisfaction lies at the next election rather than in a claim that mid-term political change by representatives infringes section 19 rights. It further reasoned that, even if voters were aware of transitional anti-defection rules, the Constitution also made clear that Parliament could amend the Constitution, including transitional schedules.

On the rule of law and rationality, the Court reaffirmed that legislation must be rationally related to a legitimate governmental purpose. It distinguished purpose from alleged motive, holding that courts are not concerned with the motives of legislators, nor with political consequences unless constitutional rights are infringed or the Constitution is otherwise violated. The purpose identified by the Court was to enable members of legislatures to change party allegiances without losing seats, which it regarded as a legitimate subject of legislation, especially given that transitional constitutional text contemplated possible amendment of anti-defection rules.

Applying rationality review as explained in Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC), the Court emphasised that rationality does not authorise courts to substitute their views for those of the decision-maker. It held that limiting floor crossing to two fifteen-day window periods was rationally connected to concerns about instability that had featured in prior debates. It also held that distinguishing between the initial window period and subsequent periods (including temporary relaxation of the threshold in the initial period) was rational in light of the concrete political event of the DA’s breakup and Parliament’s ability to assess the realignment without needing an “artificial” threshold for that first period.

The Court further addressed the scheme’s treatment of vacant seats after floor crossing. It held that, once a representative defects and the legislative scheme recognises the seat as associated with the new party for the remainder of the term, it was not irrational or inconsistent with multi-party democracy to treat that seat as belonging to the new party when vacancies arise during that remainder. The Court regarded this as consistent with the purpose of accommodating mid-term shifts in political allegiances in a limited way.

Having rejected the general constitutional attacks, the Court then turned to the sphere-specific challenges. Regarding local government, it analysed the First Amendment Act’s amendments to section 157 and the introduction of Schedule 6A. It held that any apparent tension between section 157(1) (subjecting council composition to Schedule 6A) and section 157(3) (requiring an electoral system resulting “in general” in proportional representation) had to be harmonised. The Court construed the proportional representation requirement as directed to the voting system rather than to representatives’ conduct after elections, and held that the amended Constitution contemplated that floor crossing would be permissible in local government. On that basis, the local government measures survived constitutional attack (even on the assumption, made in favour of the applicants, that Schedule 6A could be treated as ordinary legislation because of its amendability by statute).

The decisive reasoning concerned the Membership Act. The Court held that the anti-defection provision in item 23A of Annexure A to Schedule 6 formed part of a transitional regime with a limited life, and that item 23A(3) conferred a special power to amend that transitional anti-defection rule by an Act of Parliament only if exercised “within a reasonable period after the new Constitution took effect.” The Court rejected the respondents’ submission that “reasonable period” effectively meant any time during the entire transitional period, holding that such a reading would render the qualifying phrase meaningless.

The Court treated the “reasonable period” constraint as enforceable and assessed reasonableness with reference to relevant circumstances: the nature of the task (passing legislation to modify a transitional provision with limited life), the object of the time allowance, and the actual legislative history. The Constitution took effect in February 1997; Parliament established a committee almost immediately, which reported in June 1998 recommending no change; the issue returned only in 2002 following the DA’s breakup; and the Membership Act was passed in June 2002—more than five years after the Constitution took effect and with roughly two years remaining before expiry of the transitional regime. The Court concluded that Parliament could reasonably have acted much earlier if it intended to use the special transitional mechanism, and that the later enactment was attributable to changing political circumstances rather than constraints justifying delay. It therefore held that the Membership Act was not passed within a reasonable period, and thus the attempted statutory amendment was invalid. The Court reasoned that once the reasonable period lapsed, the “special exemption” to amend by ordinary legislation ceased to exist, leaving constitutional amendment as the only available route.

Finally, the Court addressed remedy under section 172(1). Because interim orders had effectively prevented the operation of a local government window period which the Court ultimately held valid, the Court considered it necessary to fashion a just and equitable order to avoid frustrating the will of Parliament and rendering the Schedule 6A mechanism nugatory. It therefore “deemed” a fresh fifteen-day window period to commence on a set date after judgment, and kept portions of the interim stabilising order in force until the expiry of that window period to prevent prejudice while affected parties considered the judgment.

On costs, the Court considered the parties’ mixed success. Although the applicant failed on many arguments and the respondents succeeded regarding the constitutional amendments and local government legislation, the applicant succeeded in invalidating the Membership Act, thereby preventing floor crossing in the national and provincial spheres. The Court held that it was not practical to disaggregate costs and ordered that each party pay its own costs.

Outcome and Relief

The Court declared the Loss or Retention of Membership of National and Provincial Legislatures Act 22 of 2002 inconsistent with the Constitution and invalid, on the basis that Parliament’s attempt to amend item 23A via ordinary legislation was not undertaken within the “reasonable period” required by the transitional constitutional provision.

Save for the invalidation of the Membership Act, the Court dismissed the remainder of the application, thereby leaving intact the two constitutional amendment Acts and the local government legislation permitting floor crossing in that sphere.

To address the practical effect of earlier interim orders on local government floor crossing, the Court ordered that the fifteen-day period referred to in item 7 of Schedule 6A be deemed to run for fifteen days commencing on 8 October 2002, and it directed that specified stabilising provisions from the Court’s interim order of 4 July 2002 would remain in force until the expiry of that window period.

The Court made no adverse costs order against any party. It ordered that each party pay its own costs.

Cases Cited

Premier of KwaZulu-Natal and Others v President of the Republic of South Africa and Others [1995] ZACC 10; 1996 (1) SA 769 (CC); 1995 (12) BCLR 1561 (CC).

Ex Parte Chairperson of the Constitutional Assembly, In re: Certification of the Constitution of the Republic of South Africa [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC).

Ex Parte Chairperson of the Constitutional Assembly, In re: Certification of the Amended Text of the Constitution of the Republic of South Africa [1996] ZACC 24; 1997 (2) SA 97 (CC); 1997 (1) BCLR 1 (CC).

Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC).

New National Party of South Africa v Government of the Republic of South Africa and Others [1999] ZACC 5; 1999 (3) SA 191 (CC); 1999 (5) BCLR 489 (CC).

Prinsloo v Van der Linde and Another [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC).

Shabalala and Others v Attorney‑General of Transvaal and Another [1995] ZACC 12; 1996 (1) SA 725 (CC); 1995 (12) BCLR 1593 (CC).

Minister of Home Affairs (Bermuda) v Fisher 1980 AC 319 (PC).

Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC).

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC).

United Democratic Movement v President of the Republic of South Africa and Others (1) CCT 23/02 (Constitutional Court, reasons for interim order delivered contemporaneously).

The President of the Republic of South Africa and Others v United Democratic Movement CCT 23/02 (Constitutional Court, judgment on appeal against interim orders delivered contemporaneously).

Legislation Cited

Constitution of the Republic of South Africa, 1996, including sections 1, 19, 46, 47, 74, 105, 157, 172, 236, Schedule 6, Annexure A to Schedule 6, and Schedule 6A.

Constitution of the Republic of South Africa, 1993 (Interim Constitution), including sections 43, 71, 133, 179, 245, Schedule 2, and Schedule 4 (Constitutional Principles).

Constitution of the Republic of South Africa Amendment Act 18 of 2002.

Constitution of the Republic of South Africa Second Amendment Act 21 of 2002.

Local Government: Municipal Structures Amendment Act 20 of 2002.

Loss or Retention of Membership of National and Provincial Legislatures Act 22 of 2002.

Local Government: Municipal Structures Act 117 of 1998.

Local Government: Municipal Systems Act 32 of 2000 (in relation to the Code of Conduct for Councillors).

Local Government Transition Act 209 of 1993 (referenced in the discussion of transitional arrangements).

Rules of Court Cited

No specific rules of court were cited in the judgment.

Held

The Court held that the general constitutional attacks on the floor-crossing framework failed. It held that proportional representation and anti-defection provisions were not constitutionally entrenched as immutable features of South Africa’s democracy, and that permitting limited floor crossing was not, in itself, inconsistent with section 1(d) (multi-party democracy), section 19 (political rights), or the rule of law, provided the legislative scheme was rationally connected to a legitimate purpose.

The Court held, however, that the Loss or Retention of Membership of National and Provincial Legislatures Act 22 of 2002 was invalid because it purported to amend the transitional anti-defection regime by ordinary legislation outside the “reasonable period” contemplated by item 23A(3) of Annexure A to Schedule 6. Once that reasonable period had expired, the special transitional route for statutory amendment fell away, leaving constitutional amendment as the only permissible method of alteration.

The Court further held that it was just and equitable to create a new effective local government window period by deeming the Schedule 6A fifteen-day window to commence on a fixed post-judgment date, and to preserve parts of the interim stabilising order until that window period expired.

LEGAL PRINCIPLES

A constitutional amendment passed in accordance with the procedures and majorities required by section 74 of the Constitution becomes part of the Constitution and is generally not susceptible to challenge for inconsistency with other constitutional provisions merely because it alters the constitutional scheme; the primary inquiry is whether the amendment was adopted under the correct constitutional procedure and within the scope of the empowering provision.

The Constitution does not establish, in the circumstances of this case, an enforceable “basic structure” constraint that renders amendments to electoral arrangements or anti-defection rules non-amendable; proportional representation and anti-defection mechanisms were treated as variable institutional choices compatible with democracy.

The founding value of a “multi-party system of democratic government” in section 1(d) requires a political order allowing competing political groupings to participate in free and fair elections and public debate, but does not constitutionally mandate proportional representation, nor does it imply that an anti-defection clause is an essential component of multi-party democracy.

The rule of law requires that legislation be rationally related to a legitimate governmental purpose. Rationality review is objective and does not permit courts to substitute their judgment for that of the legislature merely because the court disagrees with the policy choice; alleged political motive does not itself determine constitutional validity.

Where the Constitution confers a special transitional power to amend a constitutional provision by ordinary legislation subject to a temporal condition (here, amendment “within a reasonable period”), that condition is meaningful and constraining. Once the “reasonable period” expires, the special statutory route falls away and amendment must occur by the ordinary constitutional amendment process.

In crafting relief under section 172(1), a court may issue orders that are just and equitable to prevent prejudice arising from interim judicial intervention and to avoid frustrating valid legislative choices, while remaining mindful of separation of powers considerations in remedy design.

United Democratic Movement v President of the Republic of South Africa and Others (African Christian Democratic Party and Others Intervening ; Institute for Democracy in South Africa and Another as Amici Curiae) (No 2) (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495; 2002 (11) BCLR 1179 (4 October 2002)