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11 September 2003
ELECTORAL LAWS AMENDMENT BILL: DELIBERATIONS
Chairperson: Mr Hlomane Patrick Chauke (ANC)
Electoral Laws Amendment Bill [B54-03]
Legal Opinion by Principal State Law Advisor (see Appendix)
Proposed Amendment to the Electoral Laws Amendment Bill by the IEC
The Independent Electoral Commission made a submission proposing amendments to the Electoral Laws Amendment Bill. The most significant proposal for the Committee was the substitution of a new clause for Clause 7 of the Bill to make allowance for people who were in transit and wanted to vote in a voting district where they were not registered.
The IEC had no idea how many people would be affected by this and cautioned that the general public should be encouraged to follow the normal protocol. People must be discouraged from making use of this procedure but use it only as a last resort.
The majority of the Committee was in favour of this in order to accommodate people who due to urban migration, would be excluded from voting as they were no longer resident in their registered voting district. The Committee agreed to incorporate all the IEC proposals.
After consulting the Principal State Law Advisor, it was decided that it was not necessary to effect the proposal by the Legal Services Office of Parliament to include in this Bill that its Schedule applied to the Schedule 6A lists of the Constitution
Submission by the IEC on Proposed Amendments to Electoral Laws Amendment Bill
Adv van der Merwe (IEC Commissioner) went through Points 1 to 5 of the IEC submission which dealt with technical amendments, the issues of voters in transit who wish to vote in a voting district where they are not registered, marking of the voter's identity document in the prescribed manner, visually impaired persons and the allocation of seats (see submission).
Mr I Pretorius (DA) asked about allowing people to vote in a voting district where they are not registered. Would there be two categories for the voters' roll:
- people who had registered in 2000 and
- people who could not vote where they had registered?
The problem with that was that the IEC had no idea how many people this second category would entail. It was not possible to tell how may people there would be and there was merely a sticker in their identity document to show that they had voted.
Adv van der Merwe said that the IEC had no idea how many people would be affected by this. He cautioned the Committee that the general public should be encouraged to follow the normal protocol. People must be discouraged from making use of the procedure but use it only as a last resort.
Mr P Mathebe (ANC) said that if there was an election lasting two to three days, a person could vote in Cape Town on the first day and then vote later elsewhere. How would the IEC know if the person had already voted or not? What mechanisms would be in place?
Adv van der Merwe replied that the election will only occur on one day. Once a person had voted they could not vote again.
Mr Pretorius said that he would need to take the issue back to his constituency.
Ms M Maunye (ANC) asked Adv van der Merwe to give further clarity on Mr Mathebe's question about double voting in Cape Town and then elsewhere. Would there be a mark or a stamp which would prevent further voting? How would a person convince officials that the person had voted at national level and not at provincial level.
Adv van der Merwe explained that a voter would not be allowed to vote again. The provision was strictly for people who could not move to their registered voting district. These people would have the national vote and not the provincial vote.
The Chair said there had been a lot of movement from rural to metropolitan areas for economic reasons. Therefore this provision was a step in the right direction towards sustaining the gains of democracy. The provision should form part of the Bill and be included for comment at the public hearings. It was not clear how soon the provision could be incorporated into the Bill for comment.
Mr S Pillay (NNP) asked for more clarity on Mr Pretorius's issue with numbers.
Mr Pretorius explained that he wanted proof from the IEC about how many people this amendment would affect. The Act may have been amended for 10 000 or 2 people. He believed that the provision need to be more restrictive.
The Chair said that the Act does not cater for a small number. It catered for many people in transit. The voter registration campaign would encourage people to vote in their provinces. This would be held in November and possibly early January. Legislators should legislate for people who are in transit searching for better lives which was their democratic right. Ordinary South Africans must vote. There had been a similar issue when Home Affairs had had piles of identity documents lying unaccounted for because of the department's inefficiency. The IEC was being progressive. He believed the Committee was satisfied with this amendment.
Mr K Morwamoche (ANC) asked the IEC if they were still using the 'zip zip' machine.
Adv van der Merwe explained that it was the IEC's invention and they had the patent rights. They would still be used in the election with an attempt to use the machine to list people who have voted so that the officials did not have to scratch names off but could does this electronically. This would allow for a print-out which they could give to political parties.
Mr W Skhosana (ANC) asked about people such as embassy staff abroad. Did they only vote at national and not provincial level.
Adv van der Merwe explained that diplomatic staff voted where they were and the provincial vote was considered as a vote in Gauteng.
Mr Morwamoche said that Adv van der Merwe had dealt with staff inside the country and not in missions outside the country.
Adv van der Merwe explained that they fell under the section of special votes. These people were registered in provinces where their head offices were situated.
The Chair said that IEC submission had sought solutions for problems that had come up in the past election. Their support of the proposals meant that the Committee was on track in making the Bill effective.
Mr Pretorius asked about the IEC proposal to change "the voter requires assistance due to a physical disability, including visual impairment" to "including blindness or other" in Clause 11. He felt that the term 'visually impaired' was more subtle and sensitive than the word 'blindness'.
Adv van der Merwe agreed that the term was not particularly sensitive. However consultation had shown that the people affected had wanted the term 'blindness' there.
Adv. Kellner pointed out that every blind person was visually impaired and he did not understand why the word 'blindness' was used there.
Adv van der Merwe explained that for the people affected, the word 'blind' clarified the issue for voting officials better than if the word 'blind' was not there.
The Chair remarked that there would be a submission from the disability sector during the public hearings. The issue would be flagged until then.
Mr Pillay asked why the phrase 'or other' was included. Did it mean that it was open to other disabilities?
Adv van der Merwe said that it only referred to the visually impaired - people suffering from blindness or other visual impairments.
Adv. Kellner said that he wore glasses, did this mean that he needed assistance?
The Chair replied that some people are not blind but cannot see well enough to read. The Act granted assistance across the board.
In conclusion, the Chair noted that the IEC proposed amendments were accepted by the Committee and was to form part of the Working Draft of the Bill. People making comment at the public hearings needed to be aware of these insertions.
Opinion by Principal State Law Advisor
Adv O Kellner dealt with the issue of supplementation as suggested by the Legal Services Office of Parliament to include in this Bill that its Schedule applied to the Schedule 6A lists of the Constitution. He said that he did not support an insertion of a clause to deal with the issue. He repeated that he did not think that the insertion of the clause allowing supplementation was necessary (see his opinion).
The Chair asked if there were further arguments from the Chief Parliamentary Legal Advisor.
However Mr Sikakane (ANC) pointed out that the Legal Services Office had presented the previous day and they had consulted their senior counsel for their submission so there was no change in their stance.
The Chair said that they would return to the issue at a later stage.
Mr Morwamoche asked the Department if it agreed with the State Law Advisors.
Adv Malatji (Department Director of Legal Services) said that he agreed with them and he had said as much the previous day.
The Chair then adjourned the meeting.
LEGAL OPINION BY THE STATE LAW ADVISOR
I am asked to express an opinion as to whether the Committee should include, in the Electoral Laws Amendment Bill, a clause allowing the supplementation of candidates lists submitted in terms of Schedule 6A to the Constitution. The clause in question proposes to make certain provisions of the Bill, which allow supplementation of candidates lists, applicable to lists referred to in item 5(2) of the said Schedule 6A.
It is argued that such a clause is necessary as the Constitution is silent on whether a Schedule 6A list can be supplemented or not and there is a need to be able to supplement those lists in certain circumstances.
After considering the matter it seems to me that it would not be wise for the Committee to insert the proposed clause for the reasons stated hereunder.
Firstly, if the correct interpretation is that the Constitution authorises the supplementation of the lists in question, then there is no need for the insertion of the proposed clause.
Secondly, if the correct interpretation is that the Constitution did not intend to authorise the supplementation of those lists, then the only way to change that intention validly would be by Constitutional amendment. Since the Electoral Laws Amendment Bill is an ordinary section 75 Bill there is no point in including the proposed clause in it
I advise accordingly.
Dated at Cape Town this 11th day of September 2003.
Mr Otto Kellner
Principal State Law Adviser