2016 Municipal Elections: Independent Electoral Commission report; Immigration Amendment Bill: Committee report adoption and presentation of public submissions, with Minister present

Home Affairs

16 February 2016
Chairperson: Mr B Mashile (ANC)
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Meeting Summary

The Independent Electoral Commission (IEC) outlined the state of readiness for the 2016 municipal election. Points were raised and discussed around the reduction of category B municipalities, the factoring in of the Tlokwe Constitutional Court decision to IEC operations, finalising of matters concerning the election day recruitment process and the auditing of results. The IEC was confident that it was on track to hold the election and indicated that two dry runs to test the system would occur prior to the official election day. Between 1999 and 2014 there had been a 40% growth increase in the voters roll and in 2014, the voters roll stood at 25.39 million. The IEC had aligned voting districts to the wards determined in December and there were currently 22   563 voting stations, but the work happening in Mangaung may impact on this. There were to be elections in 213 municipalities, including eight metropolitan municipalities across the country, 4   392 wards and 22   563 voting districts. There was a general reduction in these figures. Voter turnout in 2000 had been 48.07%. Legislative amendments were to be finalised by end February 2016 although the Board had finalised the demarcations. Electoral staff recruitment criteria had been agreed with political parties, the election expansion staff and registration officials. Ongoing consultations with the Governance were almost finalised. The independent audit would be shared with parties in the Party Liaison Committees (PLC) and interested parties will be given the opportunity to audit the results system. Testing of key election IT systems, including the security testing, would be completed by the first quarter of the year. Electronic systems that were an alternative to manual submissions of lists were to be demonstrated in February to all parties. It was estimated that 31.4 million people would vote, and there was a special target to address the 18 to 20 year old age group. The counting process and the auditing was outlined.

In discussion, concerns about the potential bias on the part of union members officiating at voting stations received most attention. The Democratic Alliance, Economic Freedom Fighters, and Inkatha Freedom Party all were worried about the use of South African Democratic Teachers Union members as officials and asked how this would be handled and bias avoided but the ANC questioned how they could be excluded without unfair discrimination. The IEC assured parties that selection of officiating members was conducted in a transparent and credible manner and that political parties could raise issues of concern with any officiating member though the Party Liaison Committees. Members asked when the awareness campaign would start and whether DHA was trying to have voters registered when they collected Smart Card IDs. Members wanted information on the demarcation process, court challenges, Mangaung and the special votes. They asked how social media would be available to farm workers and what particular strategies were in place to ensure that they could participate. They wondered about the impact of the use of schools for voting. Comments were raised about the possible confusion caused by colours on voting papers.

The Committee Chairperson presented the report of the Portfolio Committee reflecting that the Committee had resolved to initiate the draft Immigration Amendment Bill and had tabled a memorandum in the National Assembly on 18 November 2015. The Parliamentary Content adviser presented a summary of the public submissions on the Immigration Amendment Bill, which included comments on whether the process was fair and whether processes should be adjusted to allow for possible bureaucratic difficulties – such as an assumption that should there have been no answer to an application for extension within a certain time, it would be deemed approved until anything was heard to the contrary. Relocation Online and the Forum of Immigration Practitioners South Africa submitted that that the entire Bill could produce undesirable results and be subject to legal challenge. Submissions related to the spatial effects of declaring people undesirable received most attention. Some submissions were made that did not go to the substance of the Bill and these would be dealt with through other processes by the DHA. The DHA then commented on those submissions and indicated that the points would be taken into consideration and that public hearings would be arranged later in any event. A Member suggested that anyone overstaying their visa should rather be given notice that the Department intended applying to mark them as undesirable so that they could give reasons why this should not be done.

Meeting report

The Chairperson acknowledged the IEC Atlas presented to eh Portfolio Committee which showed the high level of transparency by the Independent Electoral Commission (IEC). He welcomed the Minister of Home Affairs, Mr Malusi Gigaba.

Preparation for Municipal 2016: Independent Electoral Commission briefing
Mr Sy Mamabolo, Deputy Chief Electoral Officer, IEC, noted that the municipal elections of 2016 would take place where there had been demarcations by the Municipal Demarcation Board (MDB or the Board). The MDB had reduced the number of category B Municipalities from 234 to 213. The preparations were being done within the knowledge of increased litigation and the IEC had factored in the implications of the Constitutional Court judgment in the Tlokwe Matter.

Between 1999 and 2014 there had been a 40% growth increase in the voters roll and in 2014, the voters roll stood at 25.39 million.

In relation to voting districts, the IEC had finalized its digitisation exercise, aligning the voting district to the wards received in December). There were currently 22   563 voting stations, but the work happening in Mangaung may impact this number.

There would be 213 municipalities, which includes the eight metropolitan municipalities across the country, 4   392 wards and 22   563 voting districts. The was a general reduction in these figures.  The highest number of wards were in KwaZulu-Natal at 870, followed by the Eastern Cape with 705.

In 2000 there was a 48.07% voter turnout. The legislative amendments were to be finalised by the end of February 2016. The Board had finalised demarcations. The IEC had reviewed the electoral staff recruitment criteria, which had been agreed with political parties, the election expansion staff and registration officials. It had concluded procurement of registration material. IEC was now finalizing election day procurement.

He noted that there were ongoing consultations with the Department of Cooperative Governance and Traditional Affairs (CoGTA). The Department of Home Affairs (DHA) was confident that in the next few weeks those consultations would conclude, which should give the Minister enough time to make announcements.

The IEC are finalising the matters connected to the independent audit of results systems. He said that the audit report will be shared with political parties in the Party Liaison Committees (PLC) and interested parties will be given the opportunity to audit the results system. Testing of key election IT systems, including the security testing, would be completed by the first quarter of the year.

The IEC was now finalising the development of the electronic system to be used as an alternative to manual submissions of lists by party and candidates, and there was a session planned for 25 February 2016 to demonstrate this to political parties. The IEC contact centre, where people can check application status and related information, had already been running since 2015. The IEC had briefed registered political parties on the preparation of these elections and indicated that two dry runs were to be undertaken before election day.
In regard to the voters roll, the IEC was interacting with Statistics South Africa (SSA) who gave IEC data suggesting that there would be an estimated 31.4 million South Africans voting in May 2016. The data indicated that the largest age categories in which persons were not registered were potential voters between 18 and 20 years old. The IEC would be implementing a general campaign for the broad public but a specially targeted campaign, which would be more” jovial and youthful” was planned for young persons. Social media channels would be used to attract young persons.

He reported that counting of ballots would happen immediately after the voting process. The counting will be witnessed by party agents and observers. Party agents would co-sign the result slips at each voting station and results would be captured centrally. Independent auditors would monitor and verify the entire process and parties could compare these voting slip results.

Mr M Hoosen (DA) asked when the actual voting awareness campaign was going to start. He asked if the IEC was exploring any possible collaboration with the Department of Home Affairs (DHA) to get voters registered at DHA when they were getting their Smart Card IDs. He wondered if the IEC was doing anything to attract the 20-29 age bracket. He commented on the issues around fairness of the election campaign and state resources being used in election campaigning, in the past, and wondered if the IEC was doing anything to prevent this from happening again or would “turn a blind eye” to this issue again. In regards to the involvement of members of SACDU in local government elections as election officials, he asked the IEC to provide clarity on this matter.

Ms H Hlophe (EFF) asked for clarity concerning the demarcation processes concluded in December 2015, any outstanding demarcation matters ahead of municipal elections, and the reasons for the increased numbers of court challenges. She wanted more information on Mangaung, and the total number of electoral municipalities, and the status of the EFF’s submission to IEC concerning the special votes. She commented that some of the SA Democratic Teachers Union (SADTU) members were not neutral when it came to IEC officiating and this posed a challenge with them assisting blind and disabled voters.

Ms S Nkomo (IFP) said she was very happy to see more woman within the IEC delegation and urged Mr Vuma Mashinini, the IEC Chairperson, to be more gender sensitive in future meetings. She wanted an update with regards to the SADTU matter, and an honest response on the Constitutional Court matter. She questioned the effects of sustained threats of legal action on the work of the IEC. She wanted a progress report on the electronic system of registration and the qualification of the observers. She welcomed the IEC’s request to get political parties involved in the independent auditing process.

Ms T Kenye (ANC) said she was concerned about the accessibility of social media to learners on farms. She asked what strategies the IEC had for them. She noted the comment on some of the elections, but wondered why the IEC did not give election statistics on the 1994 national elections and the 1995 local government elections in this presentation. She asked what impact, if any, the use of schools would have on schooling programmes.

Ms D Raphuti (ANC) asked the IEC what strategy it was going to employ to attract youth registration She wondered why political parties were asked to check the employment of electoral staff, was this not a human resource matter? She asserted that the ANC was held to ransom and was a victim of propaganda in the 2014 elections by other political parties who did not even understand ballot paper processing, and it was unfair that other parties, taking the colours of the ANC, had asked IEC for assistance or clarity at the voting stations. She commented that the ANC could have “upmarked” its numbers and cautioned that the other political party should be careful.

Mr D Gumede (ANC) asked if some Members were suggesting that people who had no political affiliation within SADTU should not be allowed to be presiding officers. He asked if the Committee would intervene or object in any cases where presiding officers are found to be members of political parties. He said this could be perceived as unfair discrimination. The majority of workers were members of the Congress of South African Trade Unions (COSATU), which was ANC-affiliated. He asked if members of COSATU should not be presiding officers and if so, questioned whether this was not unfair discrimination.

The Chairperson made the point that she found it unfortunate that even after Members had taken an oath to uphold the constitution. The Committee was discussing issues of discrimination.  All people are allowed to vote for whatever party they wished, and this was written in the Constitution. Anyone becoming an IEC official needed to follow IEC code of conduct. She asked what happens if party agents refuse to co-sign at the voting stations, and wanted also clarity concerning the zip-zip machines and the security of the voting stations.

Mr Mamabolo told Mr Hoosen said that the IEC had initiated two campaigns, one broad campaign for the South African public and the other for young persons. Due to financial considerations, there had been a long waiting period between the launch in January and the first event, but the IEC would scale up the campaign again. IEC was working very closely with the DHA in issuing smartcards but this was constrained due to the 10 year old zip-zip technology used in voter registration. There is a possibility of refreshing technology systems after the municipal elections. In that process, other avenues would be explored.

Mr Mamabolo noted to Ms Hlophe that the municipal demarcation board had concluded its process. There tended to be issues raised around provincial boundaries that were outside of the statutory ambit of the IEC. Issues of this nature would require Parliament to make constitutional amendments.

In regard to litigation he said that if people wanted to vindicate their rights using the judicial system it would not be a bad thing. The judicial system was part of the whole constitutional architecture. In regard to Mangaung he said the review of the voting districts was not complete. It was an issue of data-sets. The provincial election officer was looking into the matter and it was under control. It could affect the total count of voting station by maybe five or four votes.

When it came to the special votes, the IEC would provide ballot templates for blind people to use in braille, although the reality was that not everyone was able to use braille, which meant that people must be provided assistance to vote. The Municipal Electoral Act provided vote assistance. This was not ideal from a Constitutional point of view, but it was the legislation.

He assured Ms Nkomo that the independent audit was part of the transparency that IEC was committed to. The IEC would provide a report on the independent audit findings. A date would be set for political party election experts to independently check the voting system.

The IEC was excited to implement electronic submission of list of candidates, and would be one of the first ENBs in the world to do so. The IEC would commence training with political parties on 25 February.

He told Ms Kenye that the IEC had started already to build a repository of that information about elections, ahead of the 1999 elections. It held the 1994 national and 1995 local election data in hardcopy, and the electronic recording would come later.

He said 66% of voting stations around the country were schools. It was important to maintain the connection between IEC and school governing bodies as to ensure the safety of school infrastructure used for electoral purposes. Schools have useful public infrastructure which belong to the people of South Africa. It was not IEC’s intention to undermine the asset control mechanisms of schools.

The law provided that ballot papers be counted at voting stations. The IEC did not want situations where there could be claims of interference of boxes in transit. He said this gave political party officials a chance to count ballot papers and verify numbers. If a party was refusing to co-sign report slips this did not invalidate the results.

In regard to the security of the voting station, he noted that there was an elections priority committee, of which the IEC was a member and this had plans on how to safeguard voters and election equipment. The South African Police Service (SAPS) and all other role players would be on board also.

Mr Terry Tselane, Vice-Chairperson, IEC, responded on the question about a violation of the Code of Conduct and said that the IEC would shortly be finalising plans for an office to deal with all relevant issues related to code of conduct offences. Political parties should still take the initiative and raise issues pertaining to the violation of the code of conduct.
He noted that Mr Gumede's point on SADTU had merit but the IEC could not discriminate against every member of SADTU participating in the electoral process. He commented that when IEC started, 99% of electoral workers were in the civil service, but now it was 8%. The IEC does not have a relationship with SADTU as an organisation.

He said the IEC had tried to ensure that they could replace teachers with unemployed people, but this came at a  risk and so some officials were teachers. The IEC had been submitting names of all officials and deputy officials to the local Party Liaison Committees (PLCs) to make sure that political parties were able to raise any issues that they had in relation to any particular persons presiding over elections.

He then commented on the Constitutional Court judgement, and said that all political parties had been satisfied with mechanisms put in place to deal with the Tlokwe judgement. He was not familiar with points made by political people who had criticised the mechanisms on media platforms. The three areas which the Constitutional Court passed judgment on in the Tlokwe case had been addressed.

Rev Bongani Finca, IEC Commissioner, noted that the Electoral Act allowed for any person to apply to be an election observer. He was confident that the IEC had managed previous elections according to the legislation but it was good for the IEC to be independently observed. 21 organizations had been accredited. Another window for applications would be made before the opening of registration.
Commenting on the remarks around confusion of party colours created in the ballot papers, Rev Finca made the point that the method IEC had used to place ballot listings was criticised by international observers. The IEC was looking into different methods of ballot listing.
Mr Mashinini added that if any political parties had any issues, these could be put forward to the PLCs. The IEC was not sufficiently geared to deal with all appeals that may arise and therefore urged collaboration through PLCs and Commission appeals. This did not replace the electoral courts.

The Chairperson asked for clarity on whether there was a particular farms strategy.

Mr Mamabolo replied that the IEC would be speaking to farm unions in order to produce a Memorandum of Understanding to emphasise their rights to vote. The IEC were interacting with civil institutions working within the agriculture sector.

The Chairperson commented that it was the responsibility of all political parties to insure that elections were credible. Political parties must play their role in PLCs and use the Electoral Court properly. Political parties must operate within the code of conduct and enhance the activities of the IEC in conducting the elections.
Immigration Amendment Bills: Adoption of Report and summary of submissions
The Chairperson noted that a report had been drawn up which would need to be presented to the House. This reflected that the Portfolio Committee had resolved to initiate the immigration Amendment Bill 2015. Members agreed to the adoption of the report.

Mr Adam Salmon, Content Adviser to the Committee, reported on the submissions made by the public on this Bill.

- The Agri SA submission did not directly relate to the bill at hand but dealt more with migration policy issues.
- The Banking Association of South Africa (BASA) indicated that in order to protect the rights of individuals from irresponsible bureaucratic inefficiencies, amendments to the Bill should include a clause stating that where an application for an extension or renewal of an expiring visa (or permit) had been made in good time, and no official response had been received from the Department of Home Affairs (DHA), it could be presumed, until official notification of the contrary, that the extension applied for had been granted.
- Edinah Lidonde submitted that the existing regulations under the Immigration Act already provided that foreigners should leave the Republic of South Africa within ten days should their visa or appeal application be rejected without being declared undesirable.
- The Forum of Immigration Practitioners South Africa (FIPSA) stated that the entire Bill posed a danger of  undesirable circumstances such as the separation of families. It felt that the Bill was ill informed as it violated the principles of the Constitution. Foreigners would be sanctioned undesirably, and without without due legal processes. The Bill would furthermore be subjected to legal challenges which would incur great legal cost for the DHA. There was no evidence that indicated that administrative fines no longer served as a deterrent and thus imposition of harsher sanctions were unnecessary. Amendments appeared to take away the discretion of the Minister and officials to allow for an exemption from the sanctions. FIPSA requested that further stake holders be involved and an impact assessment study be produced.
- Mr Neville South, Imminent Travel and Immigration, stated that the stricter adjudication of applications led to more applicants becoming illegal. A more clear and inclusive, corruption-free strategy was needed. He suggested that an all-African passport be considered.
- Mr Wesley January, Compliance Officer at Relocation Online, stated that sanctions applicable to foreigners who overstayed should take into account several factors. These factors would include the presence or otherwise of a long standing temporary residence visa applications, whether visa applications had been rejected and applicant no longer had a valid visa and wished to leave the Republic, whether the foreigner had made or received an appeal application, and whether the foreigner had overstayed as a result of captivity/ Hostage, trauma, emergency medical treatment, pregnancy, death and any other exceptional circumstances.
- Mr Rod Maxwell, CEO of SA Migration International, stated that there would be unintended consequences of the overstay bans. There were no provisions to cover the situation where DHA have not resolved pending applications, or where people leave. Legal action against DHA for pending applications would cost taxpayers a great deal. He too said that the separation of families would create frustration and bad publicity for the country. It was not in line with international best practice where applicants presenting themselves would pay a fine, nor the fact that the fiscus was benefitting. There was no provision for corporates and their staff, who might have had applications pending for up to three years.
- The Commission for Gender Equality (CGE) stated that the Bill intended to deter foreign nationals from overstaying in an unreasonable manner. Repeat offenders would be sanctioned for a period of two years while a person who overstayed for more than 30 days would be sanctioned for five years. The provisions in relation to illegal foreigners did not exclude minors and this prejudices any minor who wished to return to a parent in the Republic or for study purposes
- The Law Society of South Africa stated that they had no comments now but and hoped to comment after reading the draft regulations
- Mr Eben Spannenberg, Chairperson of the ACDP Witbank, said that he believed all entrances into South Africa should be closed for immigrants who overstayed where they had not reapplied in advance.  They took working opportunities from South African citizens.
- Mr Mongeze Bomela stated that he supported the Bill.
- The submission by Mr Sisa Hlazao Thebe was irrelevant to the provisions of the Bill.

The Chairperson stated that there was no intention to finalise the Bill today. There were a lot of issues raised which did not speak directly to the Bill at hand.

He requested that the DHA provide comment on the submissions.

Mr Jackson Mckay, Deputy Director General: Immigration, DHA responded that the Agri SA submission raised administrative issues which could be addressed outside the parliamentary process. The DHA would be holding public consultations next year which would involve Agri SA and some other institutions which raised similar matters.

In regards to the BASA submission, he said that in principle the DHA should not legislate for inefficiencies of administrative challenges, as proposed by BASA. The Department had introduced systems to improve adjudication turnaround times. Applicants holding section 11(1)(a) visas who were, for instance, on holiday purposes,would pose major challenges to the DHA were they to apply for extensions within a shorter period before expiry of the visa.

Commenting on the FIBSA submission, he noted that the DHA had briefed and presented information to Parliament in 2010 and 2011 when considering the Immigration Amendment Bill, in relation to whether administrative fines were a deterrent. It was misleading and incorrect to say nothing could be done once a person was declared undesirable. There was a process of appeal.

On the Edinah Lidonde submission, the DHA pointed out that if a visa had been rejected a person had ten days to appeal the rejection. Should a person leave within the ten days they would not be declared undesirable but should no appeal be lodged, the person would be declared undesirable.

Anyone who was declared undesirable could appeal the declaration. The previous applications system was discontinued after it was abused. This answered the Rod Maxwell submission.

Similar considerations applied to the points raised by Mr January, for anyone declared undesirable could appeal the declaration and raise reasons provided by Mr January for consideration of lifting the declaration.

In answer to the CGE submission, he said the current regulation would be amended to be in line with the amendments to the Act prosed by the Immigration Bill.

The DHA noted the comments made by the Law Society, Mr Eben Spannenberg, the CGE and Mr Mongeze Bomela. In relation to any issues raised irrelevant to the Bill, he said that these would be dealt with outside legislative processes.

Mr Hoosen suggested that anyone overstaying their visa should be given notice that the Department intends marking them undesirable and that they should advance reasons why they should not be declared as such within a certain period of time. This would make it easier for the DHA to determine what the reasons were before it marked individuals undesirable, and would allow the individuals to state their case.

The Chairperson noted Mr Hoosen’s proposal and remarked that the law should have elements of being preventative whilst also making provision for other issues. Any proposed legislation that provides for fees to be paid was seen as a Money Bill which could only be introduced by the Minister of Finance.  Money brought a risk as the point of entry for crimes.

The meeting was adjourned.

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