Electoral Laws Amendment Bill: deliberations

Home Affairs

16 September 2003
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Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
16 September 2003
ELECTORAL LAWS AMENDMENT BILL: DELIBERATIONS

Chairperson:
Mr H Chauke (ANC)

Documents handed out:
Electoral Laws Amendment Bill [B54-03]
Suggestion from Independent Electoral Commission on accommodating certain voters that will be overseas on voting day (see Appendix 1)
Opinion by A Meyer SC on Parliamentary Legal Services' proposed amendment to the Electoral Laws Amendment Bill (see Appendix 2)

SUMMARY
The IEC offered an amendment to accommodate, as special voters, certain voters that will be overseas on polling day: tertiary students, persons working for South African companies sent abroad on business, and persons abroad on business activities. The State Law Adviser expressed concern that the third group was inadequately defined and that the amendment could be discriminatory since it allowed special votes for some voluntary absences but not others.

Senior Counsel's Opinion held that the amendment proposed by the Parliamentary Legal Services did not involve an amendment to the Constitution. The State Law Adviser expressed concern that the sections of the Constitution cited by Senior Counsel only came into operation when the election took place. The Parliamentary Law Adviser differed but noted that the amendment was not immediately important and was only necessary by September 2005; the next likely floor-crossing window. After discussions between the State Law Adviser, Parliamentary Law Adviser, Legal Officials from the Department, the IEC and the Chairperson, it was decided to put off the amendment until after the election.

The Public Hearings on the Bill are scheduled for 17 September 2003.

The Committee will vote on the Alteration of Sex Description and Sex Status Bill and will adopt the consolidated report on joint study tours to the provinces on 17 September 2003.

MINUTES
Planning for hearings on the Bill
The Chair stated that only two submissions had been received thus far. He had had time to look at only one of these and it did not directly address the Bill, but dwelt mostly on the treatment of disabled people by Home Affairs officials. The Committee should consider moving the hearings to 17 September 2003. The Clerk would contact the people that had made submissions to confirm that this suited them; they appeared willing in discussion. If the hearings were held on 17 September, then the Committee could vote on the Bill on 19 September.

Mr I Pretorius (DA) asked when the deadline for submissions was.

The Chair replied that there was no deadline given since the time available was very short. Most key stakeholders had been consulted in the drafting of the Bill.

Chief K Morwamoche (ANC) supported moving the hearings to 17 September.

Mr Pretorius stated that he had been approached on 15 September regarding a submission on overseas voting and had told the person that s/he had until 19 September. He undertook to contact the person to advise him/her of the change in dates.

The Chair responded that it would be best if people communicated with the Clerk regarding submissions. There should be no backdoor submissions through parties. For example, the ACDP had organised more than 70 submissions from members sent from an ACDP address. Parties are represented by their Members of Parliament.

Mr Pretorius stated that he had advised the person to communicate through the Clerk.

Mr W Skhosana (ANC) suggested that since there were so few people that wished to make submissions, the hearings could be completed within two hours in the morning, with submissions sent to the Clerk by 4pm, 16 September.

Mr R Pillay (NNP) supported the suggestion that the hearings be conducted in the morning.

The Chair stated that he had been advised that the second submission was from the ACDP, sent by a member in Germany. Whilst party submissions are acceptable, there is no need to call such people to hearings since the party is represented. There was thus only one submission that needed to be considered, and this was mostly on treatment of the disabled by Home Affairs officials. There would thus be time to complete the hearings on 17 September and the Committee should be able to vote on the Bill by 19 September.

IEC proposal on special votes for certain voters abroad
Adv Van der Merwe (IEC Commissioner) presented the IEC proposal. The IEC members present at the meetings on the Bill had consulted with the Commission on overseas voting and a feasible proposal had been drawn up. In 1999, the Commission had the power to add categories of special voter through regulations. In 1999, people studying abroad, people working for a South African company sent overseas on work, and people on business were granted special votes - these were groups temporarily absent but ordinarily resident in South Africa and registered on the Voters' Roll. Based on this experience, they suggested adding a fourth category of special voter to Section 33(1) as amended by Clause 9 of the Bill and the IEC would regulate the manner in which to deal with these special votes.

[The proposal adds (d) to Section 33(1) so that a person may apply for a special vote 'due to the person's- … (d) temporary absence from the Republic, where he or she ordinarily resides, for one of the following purposes, but in this case, only in an election for the National Assembly: (i) Study at a tertiary educational institution. (ii) To perform activities flowing from his or her employment in the Republic. (iii) To pursue business activities.]

Mr Pillay asked if such people would be able to cast both provincial and national votes.

Adv Van der Merwe replied that, because of logistics, they would receive only a national vote.

Mr W Sikhakhane (ANC) asked what mechanism would be used to monitor the use of the provision.

Adv Van der Merwe replied that the IEC had developed elaborate regulations in 1999. People had to be on the Roll and had to set out their position in the application for the special vote. One could also check the person's passport to see what sort of visa s/he had. The IEC would work out these details in the regulations.

Mr Pretorius asked if 'business activities' included persons overseas not working for a South African company.

Adv Van der Merwe replied that such a person would be overseas for 'employment purposes'. The law advisers would have to assist with the proper wording of the provision.

Mr Pretorius responded that there were many people abroad, not transferred by a South African company, but who were there temporarily on temporary working visas.

Adv Van der Merwe responded that as the provision stood, such people would not be included.

Dr C Mulder (FF) stated that the IEC proposal was a very positive development. The provision should be phrased to achieve what the Committee intended.

The Chair stated that the Committee would consider the phrasing when it worked through the Bill Clause by Clause. He asked for Adv Kelner's (State Law Adviser) comment on the proposal.

Adv Kelner responded that one had to bear in mind that one must not discriminate between people that are allowed to vote and others that have as good a case for receiving a special vote. The criteria had to be drawn up carefully.

The Chair asked what informed the IEC's position in the proposal and expressed concern that it might introduce problems.

Ad Van der Merwe replied that the IEC had not addressed the question in the Bill sent to the Department. Voting overseas had not been part of the culture of South African voting procedures, so this would have to be developed over time if it were to be included. If there were mass voting overseas, one would have to consider transparency. Would there be party agents at overseas voting stations? One only had to look at the 2000 US elections to appreciate problems that could arise with overseas voting. There are risks associated with election credibility, for example in the need to transport ballots. In South Africa, the risks were overcome by counting ballots where they had been cast. Thus, everyone could see that the ballot box was empty at the start of the voting day, the box was in full view throughout the day and was then counted at the station without ever being out of sight for transport. With special votes, these procedures are not in place. If many people voted by special vote, it would create a credibility problem. The IEC looked at the matter in 1999 and put procedures into place, which were very expensive for very few votes. The IEC could not afford to allow all South African citizens abroad to vote. If the limited proposal were extended, the IEC would end up providing special votes, which are expensive, for South Africans that had emigrated. The Commission had looked at what could feasibly be arranged because of the discussion in Committee and the demands for overseas votes. Even the limited procedure suggested would cost R3 million. The Commission was not discriminating.

Adv Kelner responded that there is a difference between a person that went overseas because his/her company sent him/her, and someone that discussed business as part of a holiday. Ordinary holiday makers do not get a special vote.

Mr Sikhakhane stated that he understood the provision was for people registered in South Africa and temporarily out of the country on business. Where was the threat of discrimination?

Adv Kelner replied that (d)(iii) sounded as if it covered a voluntary act - like someone taking an overseas holiday and doing a little work.

Mr Sikhakhane responded that the provision would have to be drafted to deal with this problem.

The Chair stated that 'pursue business activity' is very broad. He asked how many voters had voted under such provisions in the 1999 elections.

Adv Van der Merwe replied that about 3000 people had voted.

The Chair expressed surprised at R3 million being spent for 3000 voters. He noted that there were 320 thousand uncollected Identity Books in Home Affairs offices. Most of these were for people eligible to vote, yet he heard no one advocating measures for these people. One had to consider the use of resources.

Dr Mulder responded that South Africa is a modern democracy and this should be made clear internationally. The FF would bring a proposal that would allow many more people to vote using the same resources.

Mr Pillay asked what 'temporary' meant. Did it refer to duration in time, absence related to a specific activity, an intention to perform a specific activity and return?

Adv Van der Merwe replied that the IEC had tried to express what they had done at short notice in 1999. 'Temporary' should be coupled with the person being ordinarily resident in South Africa. The person must be living in South Africa, registered in a district, with an intention to come back in a reasonable time. One could look at the definition of ordinarily resident in the Act - it referred to the place where one returned after an absence.

Mr Pillay responded that this provided little clarity. Someone might be away for a year or two, working but with every intention to return.

Mr Pretorius noted that there were often advertisements for people to apply through consulates to voting in elections coming up in their countries. The proposal brought South Africa in line with other democracies. The Identity Books were a serious issue and he did not want to suggest that resources just be spent on overseas voting. If necessary, more money should be spent to ensure a good election.

The Chair asked that the Committee suspend the debate on overseas voting until the following meeting to allow Adv F Jenkins (Parliamentary Law Adviser) to brief the Committee.

Senior Counsel Opinion on Proposed Amendment to the Bill
Adv Jenkins noted that Parliamentary Legal Services had proposed an amendment to the Bill making items 18 to 21 of Schedule 1A applicable to the lists referred to in item 5(2) of Schedule 6A to the Constitution. The Schedule makes provision for crossing the floor. The question had been raised whether this amounted to a constitutional amendment. Adv Meyer, SC had been asked to provide an Opinion on this. The core of his answer is contained in paragraph seven of the Opinion. Senior Counsel's view is that the amendment is incidental to the Schedule and fits into the Constitution and so did not amount to a Constitutional amendment. He recommended though that each item in the list be considered individually to determine the extent to which it applied to Schedule 6A. Paragraph 9 highlights problems he had encountered since 1994 with the interpretation of the system as laid down. His recommendation is that the Committee look at items that deal with supplementation of lists and try to say how these are applicable to Schedule 6A.

The Chair asked if there had been any proposals for how to deal with the problems or if Adv Meyer had merely raised questions to be addressed by the Committee.

Adv Jenkins replied that the Opinion did not make proposals - Adv Meyer had not been mandated to do so.

The Chair asked for views from the Committee and the various legal experts present.

Adv Kelner stated that he was concerned that the core answer in paragraph 7 relied on Sections 47(4) and 106(4) of the Constitution, which are suspended in operation until after the second election.

Adv Malatji (Chief Director: Legal Services, Department) stated that he was not persuaded by the Opinion - it was not helpful.

Adv Jenkins stated that the issues raised by Adv Meyer were issues that could be open to challenge and if Adv Meyer was referring to the list section in Schedule 6, then he agreed with him. The Parliamentary Law Advisers had pointed out possible points of challenge. Already, the Peace and Justice Congress might be mounting a challenge to the list system. Sections 47(4) and 106(4) of the Constitution are suspended 'until' the election, not 'until after' the election. The focus of interpretation is on 'until' - this could mean before or after the election. In the context and in the light of the interim Constitution, it appeared to mean before the election. One could not wait until the election happened to prepare the ground for it.

Adv Kelner responded that the problem was that the Bill had to be law before the election and until the election this could not happen by means of an ordinary Bill.

Mr Pretorius stated that he understood that the issue was around supplementation of lists. If it was such a serious matter, the Committee had to get it right.

The Chair responded that the Committee had several law advisers present and had to engage on the matters.

Mr Pretorius responded that the document had been given to the Committee only ten minutes previously.

The Chair stated that he would like to hear opinions from Adv Jenkins, Adv Kelner and the IEC on the way forward. The issues had been highlighted and he wanted to hear other views - what did they think the Committee should do?

Chief Morwamoche suggested that the Committee give the State Law Adviser, Parliamentary Law Adviser and others time to check the document properly so that they could give the Committee a proper outline the following day.

The Chair stated that he agreed that they needed time for full consideration, but would like the Committee to start engaging on the matter at the meeting.

Dr Mulder asked if the Parliamentary Legal Services' proposal was the only way to deal with the matter. Did it have to appear in the Bill or was there a Constitutional Amendment coming up to deal with it?

Adv Jenkins replied that the next floor crossing window would be in September 2005 if the election were held before September 2004, which gave breathing room. A decision could be taken then whether Schedule 6A should be in the Constitution. There had been problems with its interpretation. Parliamentary Legal Services had made the intervention because it seemed a good time to address the matter and in anticipation of possible challenges. If the Committee decided only to address the normal lists, they could still use Adv Meyer's comments to tidy up these provisions. He agreed that it would be good if the legal experts had time to consider the Opinion.

The Chair stated that he wanted the matters clear when the Committee met the following day. The meeting was adjourned for fifteen minutes to allow the State Law Adviser, Parliamentary Law Adviser, Department Legal Services officials, IEC and the Chair to consider the matter.

The meeting reconvened and the Chair stated that it was decided in discussions that it would be best to deal with the issues around crossing-the-floor when necessary for the window in September 2005. The Portfolio Committee on Justice and Constitutional Development had dealt with crossing-the-floor and the issues would be noted and communicated to them. Members should return to raising issues with the Bill. The issue on the floor was the new IEC proposal [on overseas voting]. The Committee had to be clear on what it entailed.

Mr Pillay asked about (b), allowing the IEC to prescribe other categories of persons who may apply for special votes. Would the Committee be advised on this?

Adv Van der Merwe replied that the provision was to be deleted.

The Chair asked why the Bill referred at times to 'regions' and not 'provinces', such as in 2(a) and 4 in Schedule 1A in Clause 24.

Adv Van der Merwe replied that this was how it had been formulated in 1993. The references were to regions throughout the Constitution. The references might also be used to distinguish between lists for provincial elections and provincial lists for the national election.

Mr Pretorius raised 16(3) in Schedule 1A, which states that '[i]f a party fails to indicate to the Commission from which list a candidate [whose name appears on more than one list] will be designated or in which legislature a candidate will serve, such a candidate's name must be deleted from all lists.' The measure is draconian.

Adv Van der Merwe responded that he thought the provision had been there since 1993.

Adv Kelner responded that the provision was not in the Constitutional text on which the Schedule is based. The Chief State Law Adviser had added the provision because 16(2) is silent on what happened if a party failed to indicate the designation. 16(3) was added in so that the Committee could decide on what should be done in case of such a failure.

Mr Pillay asked if punitive measures against the party had been considered. As it stood, 16(3) punished the candidate, not the party which is at fault.

The Chair responded that the candidate was there because of the party.

Mr Pillay responded that that was his point. The candidate was there because of the party but this did not mean that the party could do as it pleased. It should have some sense of obligation.

Mr Pretorius stated that the candidate should at least be notified of the need to indicate a designation.

Dr Mulder stated that 16(3) was a good provision. Candidates knew long before an election if they were on a list and if they were on more than one list. If the legislation did not force parties to apply their minds to the question, they could hold up the election result.

The Chair expressed his agreement with this.

Mr Pretorius wondered if it would be constitutional to take punitive action against a candidate if the party failed to act.

The Chair asked members to consider the consolidated report on the joint study tours to the provinces. The report would be adopted at the meeting the following day and immediately sent to Parliament where the report would be debated. The Committee would deal with the Alteration of Sex Description and Sex Status Bill [B37 - 2003] - consider amendments to it and vote on it - at the meeting too.

The meeting was adjourned.


Appendix 1

Suggestion from Independent Electoral Commission on accommodating certain voters that will be overseas on voting day

Page 4, Line 40

Substitute Clause 9 of the Bill by the following clause:

"9. Section 33 of the Electoral Act, 1998, is hereby amended by the substitution for subsection (1) of the following subsection:

"(1) The Commission [a] must allow a person to apply for a special vote if that person cannot vote at a voting station in the voting district in which the person is registered as a voter, due to that person's -
(a) physical infirmity or disability, or pregnancy;
(b) absence from the Republic on Government service or membership of the household of the person so being absent;
[or]

(c) absence from that voting district while serving as an officer in the election concerned, or while on duty as a member of the security services in connection with the election; or
(d) temporary absence from the Republic, where he or she ordinarily resides, for one of the following purposes, but in this case, only in an election for the National Assembly:
study at a tertiary educational institution.
To perform activities flowing from his or her employment in the Republic.
To pursue business activities.

[(b) may prescribe other categories of persons who may apply for special votes.]"


Appendix 2

OPINION BY ADV A MEYER, SENIOR COUNSEL

PROPOSED AMENDMENT TO THE ELECTORAL LAWS AMENDMENT I3ILL

1. The Acting Chief Parliamentary Legal Advisor has requested a legal opinion on behalf of the Portfolio Committee on Home Affairs. It concerns the constitutionality of an amendment proposed by the Parliamentary Legal Services Office to the Electoral Laws Amendment Bill [B54-2003].

2. The Bill seeks to amend the Electoral Act, 1998 (Act 73 of 1998), amongst others by adding Schedule 1A, which details the system of representation in the National Assembly and provincial legislatures. That Schedule is effectively a restatement of Schedule 2 to the Interim Constitution of 1993, which at present applies by virtue of items 6(3) and 11 (1) of Schedule 6 to the Constitution, 1996.

3. Item 16 of the proposed Schedule 1A deals with the designation of representatives from candidates' lists, while items 17 to 21 provide for the supplementation and review of those lists. The amendment proposed by the Parliamentary Legal Service is to the effect that items 18 to 21 should also apply to the lists referred to in item 5(2) of of Schedule 6A to the Constitution.

4. Schedule 6A to the Constitution makes provision for the so-called floor crossing of members of the National Assembly and of the provincial legislatures during certain specified periods. Item 5(2) provides that within seven days after the expiry of such a period, each party represented in a legislature which has been reconstituted as a result of floor crossing must submit a list of its "candidates" to the Secretary of the legislature. Vacancies in a legislature must "where applicable" be filled by the nomination of persons from that list [item 23(1)(a)(ii) of Schedule 2 to the Interim Constitution, and item 23(1)(a)(ii) of the proposed schedule 1A].

5. The question that has arisen is whether the proposal by the Parliamentary Legal Services amounts to a constitutional amendment and, consequently, an unconstitutional Bill (since the Bill is not a Constitution Amendment Bill under section 74 of the Constitution).

6. The sole purpose of items 18 to 21, read with item 23, of the proposed Schedule 1A is to regulate the filling of vacancies in the respective legislatures. Those provisions will give effect to sections 47(4) and 106(4) of the Constitution, in terms of which vacancies in Parliament and the provincial legislatures must be filled in terms of national legislation. It should be noted that sections 47(4) and 106(4) have been suspended until the second election under the Constitution, 1996, while Schedule 2 to the Interim Constitution (which currently regulates the filling of vacancies) will cease to have effect immediately before that election [items 6(3) and (4) and 11 of Schedule 6 to the Constitution].

7. The proposed amendment of the Parliamentary Legal Services is in my view incidental to the provisions of item 23(1)(a)(ii) of Schedule 1A. Read together, they will regulate the filling of vacancies in the respective legislatures from the candidates' list concerned in cases where legislatures have been reconstituted following floor crossing. That being the case, I am of the opinion that the amendment falls under sections 47(4) and 106(4) of the Constitution and, therefore, does not amount to a constitutional amendment.

8. Although the principle of the proposed amendment is in my view consistent with the Constitution, I would recommend that instead of a shortcut "mutatis mutandis" provision, appropriate reference to the Schedule 6A list should rather be incorporated into items 18 to 22 of the proposed Schedule 1A. As formulated at present, the amendment could give rise to all sorts of interpretation problems. For example, item 19 finds application only in the first twelve months after an election, but during that period there can be no Schedule 6A list in existence [see item 4(1) of Schedule 6A].

9. In conclusion, it should be noted that items 18 to 22 of the proposed Schedule 1A use exactly the same wording as the corresponding provisions of Schedule 2 to the Interim Constitution. Given the range of interpretation problems created by those items in practice, it would seem to be advisable for Parliament to address those problems before, in effect, perpetuating the existing shortcomings in the legislation. It is not part of my brief, but in an attempt to assist the Portfolio Committee, I list some of the questions that have arisen:
· Do the expressions "vacancy" in 18(d), "casual vacancies" in 19, and "all vacancies" in 21(a) refer to vacancies in the legislature concerned or in the party lists?
· Does the use of different adjectives with the word "vacancies" denote a change in meaning?
· What is the meaning of "depleted" in item 18(d)? Does it mean that there are no names remaining on the list, or simply that the number of names on the list has been reduced?
· Is it in order for a party to have no names on its (depleted) list, and every time when a vacancy occurs in its representation in the legislature concerned, to submit just one name to supplement the list in order to fill the vacancy?
· What is the meaning of "annually thereafter" in item 21? Does it mean that a party can review its lists only within the stated seven-day period every year, or can it be done at any time once per year?
· To what does the expression, "25 percent of candidates" in 21(b) refer? Is it 25 percent of the total number of names on the party list initially submitted before the general election (i.e. including the names of those persons who are already members of the legislature concerned), or is it 25 percent of the names on the undepleted list (i.e. excluding those persons who have already been designated or appointed as members of the legislature)? Does it refer to available candidates only, or does it include persons who have died or are no longer available, for whatever reason?
· If a vacancy occurs in a legislature and there are no names on the
relevant party list, can the party review the list in terms of item 21
by, amongst others, supplementing the vacancies (as 21(a) allows),
or must it first supplement the list in terms of item 18 or 19?
· Item 22 requires the Secretary of a legislature to publish candidates' lists "supplemented in terms of items 18 and 19 or reviewed in terms of item 21". Does that mean that the Secretary must publish the full list (ie including the names of those persons who are already members of the legislature concerned), or is it only the names that have been added or the "undepleted" part of the list that must be published?

10.As far as I am aware, at least some of these legal questions have been responded to differently by Parliament and some of the provincial legislatures. The application of the provisions in question could be challenged in court Therefore, I would recommend that the Portfolio Committee should try to reformulate those provisions in order to bring about more legal certainty. This process should include the issue of the lists in terms of Schedule 6A to the Constitution.

AM MEYER SC
15 September 2003

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