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9 September 2003
ELECTORAL LAWS AMENDMENT BILL: DELIBERATIONS
Chairperson: Mr H Chauke
Documents referred to:
Electoral Laws Amendment Bill [B54-03]
Electoral Act [No 73 of 1998]
Electoral Commission Act [No 51 of 1996]
The Committee objected to the Department's absence at the meeting. The Chair demanded a written explanation for the absence. In the absence of the Department, an IEC commissioner offered to take the Committee through the Bill.
The Bill amends the Electoral Act as follows:
- people need not register in their voting district and will be placed in a district according to their residence by the Chief Electoral Officer;
- providing a mechanism for voters to vote when they do not appear on the Roll but can prove that they registered;
- limiting prisoners' voting rights to awaiting-trial prisoners;
- removing the power of the Commission to create new categories of special voters; - laying down voting times;
- continuing the current electoral system;
- providing for the redrawing of voting districts;
- allowing presiding officers to set voting station boundaries;
- clarifying the Commission's conciliation powers.
The Bill also amends the Electoral Commission Act to deal with the crossing the floor legislation and to ease registration.
The Committee discussed the question of prisoners' registration and voting rights at some length - they agreed that they would have to debate and decide the issues around these matters. Members also asked that the Committee address voting by citizens abroad and by voters that did not appear on the Roll but could prove that they had registered, consider adding new categories of special voter, and consider the setting of voting station boundaries.
The Chair stated that the Bill was now formally tabled. The Committee would work with the NCOP Select Committee to ensure that the Bill was passed before the end of the Parliamentary session. The timeframe for the Bill was not fair, but it had to be passed so that elections could be held in 2004. The Department was supposed to be represented at the meeting, but neither Adv Malatji (Chief Director: Legal Services, Department) nor Mr Mogotsi (Director: Legal Services, Department) was present. No clear apology had been given. Adv Kelner (State Law Adviser) was present and the Chair hoped he would be able to assist the Committee with the Bill.
Adv Van der Merwe (IEC Commissioner) offered to assist the Committee with the Bill. Since much of it had come from the IEC, he would be sufficiently familiar with it to provide assistance.
Mr R Pillay (NNP) stated that the Department's absence was unacceptable and he wished it on record that the Committee did not approve.
The Chair stated that Adv Malatji and Mr Mogotsi were supposed to be at the meeting. He had tried all levels of the Department to get a Department official present at the meeting.
Discussion of the Bill
Clause 1 Amendments to Electoral Act [73 of 1998]
Adv Van der Merwe explained that Clause 1 amended Section 3 of the Act so that it only applied to municipal elections to the extent allowed by the Local Government: Municipal Electoral Act [27 of 2000]. This is a formal amendment.
Mr I Pretorius (DA) asked if Section 3 included municipal elections.
Adv Van der Merwe replied that the Act applied to national, provincial and municipal elections. The amendment limited the Section to national and provincial elections and to municipal elections as far as the Act was referred to in the Municipal Electoral Act.
Dr C Mulder (FF) noted that Clause 1 referred to the election of the National Assembly but not to the election or appointment of the National Council of Provinces. Was there no reference to the NCOP in the Act?
Adv Van der Merwe replied that the Act did not refer to the NCOP.
Adv Van der Merwe explained that Clause 2 inserts a subsection (1A) into Section 6 of the Act. The insertion is to encourage people to register to vote from the age of sixteen.
Mr S Swart (ACDP) stated that the ACDP was concerned about overseas voters. Had the IEC considered the issue of South African citizens abroad? If not, he would propose an amendment.
The Chair responded that the Committee should go through the Clauses of the Bill. Mr Swart's question should be posed to the Department. The point would be noted.
Adv Van der Merwe explained that Clause 3 is a technical amendment to Section 7 of the Act. It deletes the provision that a person may only apply for registration in the voting district in which s/he is resident because a person may not know in which district s/he would be resident. Persons registering no longer had to apply for a particular district. As would be apparent from Clause 4, the Chief Electoral Officer (CEO) will place the person in a district according to his/her residence.
Ms A van Wyk (ANC) asked if the change meant that she could register in Cape Town but would be placed in Gauteng according to her place of residence.
Adv Van der Merwe replied that the CEO would attempt to place her, but she was advised to register where she would be voting.
The Chair asked about students who registered in their place of residence but were at university when the election took place.
Adv Van der Merwe replied that this was an old problem. The IEC would be suggesting a way to deal with this.
Mr J Gogotya (ANC) pointed out that Ms Van Wyk's question was addressed in Clause 4.
Adv Van der Merwe explained that Clause 4 was a mostly technical amendment to Section 8 of the Act. Subsection (3) is amended so that the CEO must place a person in the voting district where s/he is ordinarily resident. (f) is inserted into Subsection (2) disallowing persons serving a sentence without the option of a fine to register. This was not the IEC's recommendation.
Mr Swart asked if this was a total disqualification. For example, if someone were awaiting trial whilst serving a sentence, s/he would still not be entitled to vote?
Adv Van der Merwe replied that it was a total disqualification.
The Chair stated that the Committee would have to debate the issue.
Adv Van der Merwe stated that Clause 5 was not part of the IEC's recommendation on the Bill. The Clause amends Section 16 of the Act adding: (3), which provides that the CEO must provide the Voters' Roll or a segment thereof to parties; (4) providing that use of the Roll for purposes other than political is an offence and attaching a penalty of a fine or up to one year's imprisonment. Since the offence in (4) appeared elsewhere in the Act, the Subsection may not be necessary.
The Chair asked how the use of the Voters' Roll would be monitored.
Adv Van der Merwe replied that the process was that the party head office applied for and was given a copy of the Voters' Roll. Enforcement would have to be looked at.
Ms Van Wyk asked if the prescribed fee in (3) was in addition to the party's registration fee.
Adv Van der Merwe replied that it would be. Parties would be provided with electronic not hard copies of the Roll.
Mr Pillay asked what the likely cost would be.
Adv Van der Merwe replied that currently the cost was between one and two thousand rands.
Mr W Skhosana (ANC) asked if parties contesting only one or two provinces would get the entire Roll or just the Roll for the provinces in which they were contesting the election.
Adv Van der Merwe replied that in such cases, they would get a segment of the Roll. However, if such a party requested the full national list, they would get it.
Adv Van der Merwe explained that Clause 6 is a technical amendment. It repeals Section 19 which dealt with municipal elections, which are now covered by the Municipal Electoral Act.
Chief K Morwamoche (ANC) pointed out that there was a typographical error in the heading of the Clause - it refers to 'Act 73 of 1995' instead of 'Act 73 of 1998'.
Adv Van der Merwe explained that Clause 7 inserts two new Sections after Section 24 of the Act. 24A is inserted to deal with people that found that they were not on the Roll but could prove that they had registered - they would be allowed to vote. This provision was similar to a provision in the Municipal Electoral Act.
Mr F van Deventer (DA) stated that he wanted the Committee to discuss this.
Dr Mulder asked if the proof referred to in 24A(1)(c) is the sticker placed in one's identity book on registration.
Adv Van der Merwe replied that that would be the usual proof. Other proof might be accepted.
Mr Pillay asked what other sort of proof one could provide.
Adv Van der Merwe replied that a person might present an affidavit from someone stating that s/he had seen the person registering to vote. The usual proof is the sticker.
Mr Gogotya noted that the onus of proof was on the voter. What if the voter could not prove that s/he had registered? For example, a voter might have lost his/her possessions in a fire in an informal settlement.
Adv Van der Merwe replied that such a person would be in an unfortunate position since the sticker is placed in the identity document, which is also required in order to vote.
Adv P Tlakula (Chief Electoral Officer, IEC) noted that in cases where a person did not have the sticker in his/her identity document to prove registration but appeared on the roll, the person would be allowed to vote.
Adv Van der Merwe explained that 24B(1) is a provision for the practical aspect of prisoners voting. For municipal elections, prisoners must register in the district in which they were resident prior to being imprisoned; this avoids problems arising from a scenario where prisoners outnumber ordinary residents in a district. In a national election, the best way to deal with prisoners' special votes is to deem them resident in the district where they are on voting day. 24B(2) states that only awaiting trial prisoners may vote.
The Chair asked what the distinction was between an awaiting trial prisoner and a detainee.
Adv Kelner replied that 24B(2) was inserted verbatim from a Cabinet decision. The Committee was free to interpret the Cabinet's wording as it pleases.
The Chair asked how Adv Kelner would interpret the wording.
Adv Kelner replied that he read it as a person in prison awaiting the conclusion of his/her trial - someone that had not yet been sentenced and thus was not in prison because of a sentence.
Mr Swart asked if Adv Kelner meant to include prisoners in the time between their conviction and sentencing.
Adv Kelner replied that a trial is not complete until sentencing.
The Chair asked what the distinction is between a prisoner and a detainee.
Adv Kelner replied that he thought the word prisoner here simply referred to a person 'behind bars'.
Chief Morwamoche stated that in court terms, one is not a prisoner until one is sentenced.
Adv Kelner stated that the phrasing did not take this distinction into account in his view. The Committee could interpret it and rephrase it as it liked.
Mr Van Deventer stated that people were termed detained if the police were still investigating the case.
Mr Gogotya stated that a detainee might include someone detained as a state witness. One need not have committed a crime to be detained.
Adv Kelner stated that this might be the case. The Committee would have to come to a decision on the matter.
Dr Mulder stated that 24B(2) dealt with a person's right to vote. The idea behind it was that people who are still innocent - not proven guilty - have the right to vote.
Adv Tlakula stated that the Committee should look at the question so that there was no ambiguity for election management.
Mr W Sikhakhane (ANC) stated that detainee is a looser word than prisoner - it might involve detention in a police station.
Dr Mulder noted that the provision dealt with prisoners - was it not in conflict with the earlier provision on registration? Why should someone be registered to vote if s/he will not be allowed to vote?
The Chair stated that the Committee would have to come to a decision on the provision.
Mr Pillay asked if there was a reasonable chance of success for any constitutional challenge to the provision.
Adv Kelner replied that he would prefer not to address the question. He did not certify the Bill personally - it was dealt with by the Chief State Law Adviser. Other issues the Committee should consider are: whether a person is still regarded as serving a sentence when on parole; and how to treat the case of a person that took his/her sentence on appeal, lost the appeal but was still in the fourteen day window period (between losing the appeal and having to report to prison) when voting day occurred.
Mr Swart asked that the State Law Adviser brief the Committee on the Constitutional Court's decision on prisoners' right to vote.
The Chair stated that the provision under discussion responded to the Court's decision.
Adv Van der Merwe explained that Clause 8 repealed Section 32 of the Act. The Section had given the IEC power to regulate municipal elections and was no longer necessary since the Municipal Electoral Act was in place.
Adv Van der Merwe explained that Clause 9 amended Section 33 of the Act. The Section sets out categories of person for whom special votes must be provided. The Section included a provision in (b) giving the Commission power to prescribe other categories of person for whom special votes must be prescribed. The amendment removed this power at the request of the Commission.
Dr Mulder stated that the Committee would have to spend time considering this. 33(1)(b) gave the political decision to the Commission. Removing it did not mean that the Committee could not add categories. This should be looked at closely.
The Chair responded that he was aware that parties had taken positions on the matter.
Mr Pillay asked why the Commission had asked to have the power removed.
The Chair explained that the Commission had been flooded with applications.
Adv Van der Merwe explained that Clause 10 amended Section 36 so that instead of the Commission prescribing voting hours for each election, voting hours are set unless the Commission decides to alter them. This would end the need to review voting hours at each election.
The Chair noted that there had been a problem at the previous election where people had gone to voting stations and intimidated voters. He wondered if the Section dealt with this.
Adv Van der Merwe replied that it did not.
Mr Gogotya noted that at the 1999 election, voting had continued until after midnight in some areas. Had this been considered? People could not always get the day off to vote.
Adv Tlakula replied that Section 36 allowed the Commission to determine alternative voting hours or extend voting hours.
Mr Gogotya responded that the discretion meant that extension of voting hours depended on the mood of the officer at the voting station.
Mr Van Deventer stated that general election days are public holidays, so extended hours are unnecessary. He objected to the provision allowing everyone that had reported at the voting station before the closing time to vote - this caused a problem because there were often very many people allowed to vote because of the provision and it resulted in voting continuing until late.
ANC members pointed out that people did not always receive time off on public holidays and often had to work late.
Adv Van der Merwe stated that the provision was clear - any person arriving at the voting station in time would be allowed to vote.
Adv Van der Merwe explained that Clause 11 amended Section 39, on assistance to voters. 39(2)(a) explicitly extends physical disability to include visual impairment. This was based on representations from blind people. It was thought that 39(2)(a) covered blind people, but presiding officers did not always interpret it in this way.
The Chair asked if there would be Braille ballot papers for blind voters.
Adv Van der Merwe replied that the idea had been put to the IEC but it was simply not practical.
Adv Tlakula added that Braille templates had been suggested as an alternative.
Dr Mulder noted that if such measures were adopted, they would have to be present at every voting station.
Adv Van der Merwe explained that Clause 12 amended Section 55 of the Act, on objections that may affect the result of an election. There is a similar Section in the Municipal Electoral Act. Under the Section, people raised all kinds of issues and the Electoral Court had not been sympathetic to the IEC, requiring it to investigate almost all of them. The amendment proposed would confine objections to voting and counting of votes.
Mr Pillay raised the possibility of a party using miseducation to affect votes, such as by telling voters to mark the party they did not like with a cross, and the party they liked with a tick.
Adv Van der Merwe replied that such cases would be dealt with under Chapter 7 of the Act.
Adv Van der Merwe explained that Clause 13 was a technical amendment to Section 56 - there are no candidates in the elections, so the reference to candidates is removed. Clause 14 introduces the electoral system, specified in Schedule 2 (inserted by Clause 24). Clause 15 was a technical amendment, like Clause 13, it removes references to candidates.
Adv Van der Merwe explained that Clause 16 inserted Section 63A to the Act. Under the Act currently, no power is specified for the IEC to review voting districts. This insertion officially grants the power.
The Chair asked if the IEC envisaged major changes.
Adv Van der Merwe replied that districts are continually reviewed. There would be just under 2000 new districts to make voting stations more accessible.
Mr Gogotya asked if there was a referee for district reviews.
Adv Tlakula replied that the IEC normally consulted parties on the reviews. The review exercise was almost complete and parties were happy with it.
Adv Van der Merwe explained that Clause 17 amended Section 64 of the Act, on voting stations that must be established. The Clause proposed to include the same provision as in the Municipal Electoral Act on limiting the use of mobile voting stations. When a district had a mobile and a fixed voting station, they each had a Voters' Roll and so control over the roll is not as good as with just one station. Thus, mobile stations should be used as sparingly as possible.
Mr Gogotya asked if mobile voting stations would be used for voting in hospitals.
Adv Van der Merwe replied that this had not been considered, but it was probably one of those cases were the idea was good but was not affordable.
Adv Van der Merwe explained that Clause 18 amended Section 66 of the Act, on voting station boundaries. Currently, the Act requires that boundaries be determined and described by the IEC before the voting day. This is impossible with 17000 voting stations. The amendment provides that the presiding officer determine the boundaries on voting day in consultation with parties and security officers.
Mr Pillay asked what happened in the case of a dispute.
Adv Tlakula replied that the presiding officer would have to take the decision but matters are usually settled in negotiations.
Mr Van Deventer asked why this change had been made. It created problems for political parties, creating tensions and uncertainty.
Mr Pretorius suggested that the boundaries be decided in the manner suggested but a day or two before polling day.
The Chair stated that this would be noted and discussed in formal deliberations.
Adv Van der Merwe explained that Clause 19 amended Section 67 of the Act, on the location of voting stations. The current Act permitted the IEC to change the location of voting stations if necessary - due to flooding, for example - but gave no similar power to vary the route and time of mobile voting stations. The amendment grants this power. Clause 20 is a technical amendment to Section 86 correcting a reference in the Section.
Adv Van der Merwe explained that Clause 21 inserted Section 103A into the Act. When the IEC proposed the restrictions on objections, parties expressed concern that the IEC would then not be able to deal with any other objections. The inserted 103A allows the IEC to resolve issues informally. Most complaints are settled in a conciliatory manner.
Prince N Zulu (IFP) asked if there was any time limit on the conciliation process.
Adv Van der Merwe replied that there was no time limit except that matters had to be settled before the announcement of election results.
Adv Van der Merwe explained that Clause 22 amended Section 104, which grants access to private places where necessary, so that reasonable attempts must be made to notify the occupant of the private place of this. Clause 23 was a technical amendment to Schedule 1. Clause 24 inserted Schedule 2, which laid out the electoral system. This was exactly as the system appears in the Constitution, with the necessary changes to references.
Amendments to Electoral Commission Act [51 of 1996]
Adv Van der Merwe explained that these amendments were introduced to deal with the crossing the floor legislation and to ease registration. Clause 25 addressed the process of registration as a party. Currently, parties must publish notice of their intention to apply for registration 30 days before the application. Under the amendment, a party need not submit a copy of the gazette with the notice; it could publish the intention on the day of application, with registration taking effect 30 days after this.
[The remaining amendments were not discussed. In brief, they require new parties to submit their deeds of foundation and constitution even if they are represented; require that deeds of foundation and constitutions of parties be non-discriminatory; and allow the deregistration of parties based on dormancy and discriminatory deeds of foundation or constitutions.]
The Chair stated that the Committee had not yet received any public comment on the Bill.
The Chair stated that he wanted a written explanation the following day from the Department on the absence of officials from both the hearings that morning on the Alteration of Sex Description and Sex Status Bill and these deliberations. The Committee would pronounce itself on the explanation. He thanked the IEC for its assistance and expressed his unhappiness at the Department's behaviour.
The meeting was adjourned.