United Democratic Movement v President of the Republic of South Africa and Others

In June 1999, the DP, FA and NNP contested elections as separate parties but later formed the Democratic Alliance (DA). In November 2001, the NNP withdrew from the DA, creating a political realignment. However, public representatives could not change parties without losing their seats due to anti-defection provisions in the Constitution. In June 2002, Parliament passed four Acts to allow floor crossing: the First Amendment Act (Constitution Amendment Act 18 of 2002), Second Amendment Act (Constitution Amendment Act 21 of 2002), Local Government Amendment Act 20 of 2002, and the Membership Act 22 of 2002. These Acts provided for limited floor crossing during specific window periods, with a 10% threshold requirement except for an initial once-off period. The UDM challenged the constitutionality of all four Acts in the Cape High Court, which suspended their operation pending Constitutional Court review.

• Whether the amendments undermine the basic structure of the Constitution
• Whether the amendments are inconsistent with the founding values in section 1, particularly multi-party democracy and rule of law
• Whether the amendments violate the voters' rights under section 19 of the Bill of Rights
• Whether proportional representation requires anti-defection provisions
• Whether the legislation was passed within a reasonable period as required by item 23A of Schedule 6
• Whether the legislation serves a legitimate government purpose and is rationally connected to that purpose
• Whether the electoral system amendments comply with the requirements of section 74 of the Constitution

1. The Loss or Retention of Membership of National and Provincial Legislatures Act 22 of 2002 declared inconsistent with the Constitution and invalid. 2. Application otherwise dismissed. 3. The 15-day window period in item 7 of Schedule 6A to the Constitution deemed to commence on 8 October 2002. 4. Certain protective provisions from the interim order of 4 July 2002 to remain in force until expiry of the window period. 5. Each party to pay its own costs.

The binding principles established are: (1) Constitutional amendments passed in accordance with section 74 become part of the Constitution and cannot be challenged for inconsistency with other constitutional provisions unless they fall outside the scope of section 74. (2) Multi-party democracy in section 1(d) means a political order permitting different groups to organize, promote views through debate, and participate in free and fair elections, but does not prescribe any particular electoral system or require anti-defection provisions. (3) Proportional representation is not a founding value under the 1996 Constitution, and anti-defection provisions are not essential components of proportional representation or multi-party democracy. (4) Legislation must be rationally related to a legitimate government purpose to comply with the rule of law. Courts assess purpose, not legislators' motives, and Parliament has wide latitude in choosing how to regulate electoral matters. (5) Temporal limitations in constitutional provisions ("within a reasonable period") are justiciable and enforceable. What is reasonable depends on all circumstances, including the nature of the task and the object for which time is given. (6) When a constitutional provision authorizes amendment by ordinary legislation within a specified time period, that power expires when the period elapses, and thereafter only constitutional amendment procedures apply. (7) Section 19 political rights relate to elections, voting and political participation but do not give voters control over representatives' conduct between elections or prevent changes in party allegiance after election.

The Court made several non-binding observations: (1) It noted that purported amendments "radically and fundamentally restructuring and reorganising the fundamental premises of the Constitution" might not qualify as amendments at all, but this case did not require deciding that issue. (2) The Court suggested that funding legislation under section 236 may need to be amended to ensure equitable and proportional funding in circumstances where floor crossing is permitted, but expressly declined to decide whether current funding legislation meets constitutional requirements. (3) The Court observed that it may be impermissible to include detailed permanent legislative provisions in constitutional schedules where they are not closely related to constitutional structures, but found sufficient proximity here to avoid deciding the issue. (4) The Court noted uncertainty about whether Schedule 6A has constitutional status or the status of ordinary legislation given item 9's provision for amendment by ordinary Act, but did not need to resolve this for purposes of the case. (5) The Court commented on the irrationality of the Membership Act's window periods (which would expire before ever taking effect) but did not base its decision on this ground. (6) The Court suggested that if provisions of Schedule 2 other than item 23A were to be amended during the transitional period, constitutional amendment procedures would likely be required, but did not need to decide this issue. (7) The Court noted the public debate about the case but emphasized that courts decide constitutionality, not political merits, of legislation.

This case is significant in South African constitutional law for several reasons: (1) It clarifies that the Constitution's basic structure doctrine has very limited application and does not extend to electoral systems. (2) It interprets the founding values in section 1, particularly establishing that multi-party democracy does not mandate any particular electoral system or anti-defection provisions. (3) It demonstrates judicial deference to Parliament's choices regarding electoral systems, while maintaining constitutional oversight. (4) It enforces temporal limitations in constitutional provisions, holding that "within a reasonable period" is a justiciable and enforceable requirement. (5) It illustrates the Court's remedial flexibility under section 172, fashioning an order to prevent the frustration of valid constitutional amendments. (6) It clarifies that proportional representation is not a founding value under the 1996 Constitution, though it was required by Constitutional Principle VIII during the transition. (7) It addresses the relationship between political rights (section 19) and legislative conduct between elections. The case remains important for understanding the scope of permissible constitutional amendments and the limits of judicial review of democratically enacted legislation.