Lovemore legislative proposal to amend Electoral Act so South Africans living abroad may vote

Private Members' Legislative Proposals and Special Petitions

22 May 2012
Chairperson: Mr S Thobejane (ANC)
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Meeting Summary

The Committee noted a legislative proposal from Ms A Lovemore to amend the Electoral Act, to extend voting on national and provincial elections to all South African nationals living abroad, including those in countries where there were no embassies or consulates. The basis of the proposal was briefly set out, and it was noted that some questions that had been raised, when it was first debated in November 2011, included issues around costs, whether this would be regarded as a Money Bill, capacity of embassies, the fact that some countries had no embassies, and logistical considerations. Members were urged to read the court judgment on the issues.

A DA Member objected to this line of debate, noting that all that this Committee was empowered to do was to consider five brief questions, relating to whether the proposal was contrary to the spirit of the Constitution, whether it sought to initiate legislation beyond the
competence of the National Assembly, whether it duplicated existing legislation, whether it would result in a Money Bill, and whether it was frivolous or vexatious. Any other questions would be for the relevant portfolio committee’s consideration. Members agreed to stand over the matter pending a briefing from the Ministry of Home Affairs and the Independent Electoral Commission. The proposer clarified that the IEC did not report to the Department of Home Affairs, as it was a Chapter 9 institution, and also clarified that her proposal sought to address the position in countries that had South African nationals but did not have an embassy or consulate, because it sought to introduce other forms of voting that were accepted worldwide. It was decided to  hold over the matter until the briefings were given.

Members adopted the Minutes of 16 May, and noted that a strategic planning workshop would be held from 5 to 6 June, and a study tour to Canada from 16 to 23 June.

Meeting report

Lovemore Legislative Proposal to Amend the Electoral Act (No 73 of 1998)
The Chairperson briefly informed the Committee about the legislative proposal by Ms A Lovemore (DA) to amend the Electoral Act 73 of 1998. He asked Ms M Kubayi to share information briefly with other Members on the issue, because he had not been at the meeting on 16 November 2011, when Ms Lovemore had briefed the Committee, and some of the current Members were not, at that stage, serving on the Committee.

Ms M Kubayi (ANC) said that the Committee received the proposal in November 2011, the Committee had not deliberated on the issue, nor the Court ruling. Ms Lovemore had proposed that the Electoral Act be changed to allow South Africans living abroad to register and vote in n
ational and provincial elections, and to provide them with reasonable access to voting during this time. Several questions were posed, ranging from costs implications to viability. It was thought that the Embassies did not have enough capacity.  In respect of provincial elections, she pointed out that there were likely to be severe logistical problems around co-ordination. The Independent Electoral Commission (IEC) and the Department of Home Affairs (DHA) would have to brief the Committee to clarify certain issues.

The Chairperson informed Members that the Department of Home Affairs would brief the Committee the following week.

Mr F Bhengu (ANC) said that the Committee should read the National Assembly Rules very carefully and check whether and how the Money Bills Amendment Act had a bearing on this legislative proposal. He suggested that the Committee should not debate the issues now, but rather wait for the Departmental briefing.

Mr D Ximbi (ANC) said that South African nationals were scattered all over the globe, and in some countries there were not even consulates or embassies that could be used as polling stations. He said that Members had to read the copy of the judgment very carefully, and see what exactly was entailed.

Mr A van der Westhuizen (DA) said that the Committee had agreed on the rules that governed private legislation proposals, but expressed his dismay that the Committee was not keeping to the rules. When he had first joined the Committee, he was handed a copy of the rules that applied, which set out five questions to be answered.

He summarised these rules, and commented on their application to this proposal, as follows:
(1) Did the legislative proposal go against the spirit of the constitution? He submitted that this proposal did not, particularly since the ruling of the Court related to Constitutional grounds
(2) Did it seek to initiate legislation beyond the legislation competence of the National Assembly? He submitted that this did not apply, because the NA could make or amend laws.
(3) Did it duplicate existing legislation? He submitted that this proposal did not.
(4) Would it result in a Money Bill? He submitted that the mere fact that the proposal had financial implications did not make it into a Money Bill.
(5) Was it frivolous or vexatious? He submitted that it was not.

Mr van der Westhuizen stressed that it was not the role of this Committee to apply any other considerations to the Bill, such as whether it would be difficult to apply, as that would be the role of the relevant portfolio committee to whom a private Member’s bill should be forwarded, once the questions set out above were answered by this Committee. He asked Members to explain why this proposal would not be considered and forwarded to the Speakers Office. All practical implications, such as costs and role of new technology, should be decided by the relevant portfolio committee.

The Chairperson said that Members had had enough time from 16 November 2011 to consider the matter. Once the Committee had heard a briefing on the matter, including getting the actual court ruling, the Research Unit would be able to speak to the Committee. He pondered whether the Committee had sufficient legal competency to deal with the issue. He then asked what other territory the country had abroad,  beside the embassies and consulates.

Ms Kubayi explained that the rules were made by the Rules Committee and the Private Members Committee had to abide by the Rules. It would be difficult for the Committee to deal with the proposal before the Department of Home Affairs had given its briefing. She cited the example of another private Member’s proposal to amend the Lotteries Board legislation, saying that in this instance the Department and Portfolio Committee on Trade and Industry had briefed the Committee, and the sponsor of the proposal had been interacting with the Minister to raise his concerns regarding delays. She said that she had not seen anything in a written format from the Portfolio Committee on Home Affairs.

Ms A Lovemore pointed out that the IEC was a Chapter 9 institution. It did not account to the Department of Home Affairs, although it received a budget from that Department. South Africans who resided abroad had voted in National Elections in the past. However, they had had to make prior arrangements, applying for permission to exercise special votes. There were 198 countries with foreign representative bodies, where South Africans were residing. There were another 93 countries where South African nationals were residing that had no voting facilities or consulates. The proposal was to extend voting for every citizen beyond only using consulates, through other methods that were used worldwide – namely, personal votes, proxy votes, fax votes, electronic votes. She said there was no need to compromise the security of the IEC voting process. The IEC would still determine the most suitable method for each country.

The Chairperson interjected and repeated his suggestion to hear submissions from the DHA, Ministry and IEC, to enable the Committee to deal with the matter in a better-informed manner.

Members agreed with that suggestion.

Mr Van Der Westhuizen suggested that the Committee should ask any person who came with a proposal to also contact other affected parties; in this case, it would have been the IEC. He thought that every proposal should be accompanied by draft legislation and timeframes should be set, so that the Committee dealt with the matter speedily. He cited an example of a labour relations matter that had been before the Committee for ten years.

The Chairperson replied that if a matter was handed over to the National Assembly, it then would be beyond the control of this Committee. When a report had been adopted then it then becomes the responsibility of the Speaker’s Office to monitor or track that specific legislative proposal.

He said that Mr Van Der Westhuizen’s suggestion should also be incorporated into the agenda for the proposed Strategic Planning Workshop, to be held on 5 and 6 June 2012.

Ms Kubayi said that Members should consider how to tackle proposals in a more efficient manner.

The Chairperson thanked Ms Lovemore for her contribution to the discussion.

Adoption of Minutes 16 May
The Chairperson went through the minutes of the meeting of 16 May 2012, page by page.

Mr Van der Westhuizen said that page 6 paragraph 4 was not clear, and did not state what Mr Trollip (DA) was expected to do.

After a brief discussion on the matter the Committee agreed that the paragraph should be reworded as: “ there would be future interactions between the minister and relevant stakeholders.

Ms M Molebatsi (ANC) pointed out that some Members’ statements were labelled with their names but one Member’s name was not mentioned on page 7.

The Chairperson explained that resolutions should not be attributed to individuals because these were collective decisions.

Members agreed to adopt the Minutes, as amended.

Committee Announcements
The Chairperson reminded Members that the Strategic Planning Workshop would be held from 5 to 6 June 2012. The Committee would be using the help of outside facilitators during the strategic plan.

The Committee would undertake a Study Tour to Canada from 16 to 23 June, but only six Members would attend, with Committee Support Staff.

The meeting was adjourned

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