Electoral Laws Amendment Bill: hearings & deliberations; Alteration of Sex Description & Sex Status Bill: adoption; Study Tour R

Home Affairs

16 September 2003
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Meeting Summary

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Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
17 September 2003
ELECTORAL LAWS AMENDMENT BILL: PUBLIC HEARINGS & DELIBERATIONS; ALTERATION OF SEX DESCRIPTION AND SEX STATUS BILL: ADOPTION; STUDY TOUR REPORT

Chairperson: Mr H Chauke (ANC)

Documents handed out:
Electoral Laws Amendment Bill [B54-2003]
Challenge Productions Submission on Bill
SAHRC Submission on Bill
South African Catholic Bishops Conference Submission on Bill
Chief State Law Adviser's Opinion on Bill
Freedom Front amendment to Clause 9 of Electoral Laws Amendment Bill(Appendix 1)
Alteration of Sex Description and Sex Status Bill [B37 - 2003]
Committee amendments to Alteration of Sex Description and Sex Status Bill(Appendix 2)
Consolidated Provincial Study Tour Committee Report

SUMMARY
Challenge Productions, a communications company, raised problems of access to information about elections, democracy, party political information and physical access to Home Affairs offices and voting stations.

The SAHRC proposed that only prisoners guilty of serious crimes be denied the right to vote. Categories of voters overseas that are easily and precisely identifiable should be entitled to vote: students and persons on state duty abroad.

The South African Catholic Bishops Conference proposed that all prisoners, all citizens abroad and permanent residents of South Africa be entitled to vote.

The Chief State Law Adviser's Opinion held that denying the right to vote to prisoners other than those still awaiting completion of their trial or who had the option of a fine would survive a constitutional challenge. Members questioned the apparent contradiction between allowing prisoners whose sentences had the option of a fine to register and not allowing them to vote. The Chief State Law Adviser responded that 24B(2) - 'Only prisoners who are awaiting trial may vote' - was poorly drafted. The Committee mandated the various legal experts to consider a new version of 24B(2) that made clear that prisoners whose sentences had the option of a fine could vote.

The Committee discussed which voters abroad should be permitted to make special votes. The Freedom Front introduced an amendment to Clause 9 so that all temporarily absent citizens, and not just those enumerated in the IEC amendment, could cast special votes; the amendment was later withdrawn. The Freedom Front and Democratic Alliance argued that that 33(1)(d)(iii) in Clause 9, allowing those overseas on business activities to vote, should be interpreted widely so that citizens working temporarily abroad are permitted to vote. The Committee broke for party caucuses and all parties present (ANC, IFP, FF and DA) accepted the IEC amendment. Voting on the Bill was delayed until the meeting on 19 August 2003.

The Committee adopted the Alteration of Sex Description and Sex Status Bill with amendments. It adopted the Committee's consolidated report on its provincial study tours.

MINUTES
Challenge Productions submission
Mr D Mulligan introduced himself as a deaf South African, who had been happy with the new democracy in 1994. However, nothing had changed since 1994 and he was no longer happy. Deaf South Africans still have no access to information on elections and on democracy. There is no one to help deaf people in Home Affairs offices - no officials speak sign language. The Bill should refer to deaf, blind and physically impaired people. Deaf people should be included in future discussions and Home Affairs offices made deaf-friendly.

Mr M Westcott explained that the panel had asked the sign language interpreter not to interpret what his colleague said from the start. This was to emphasise the point that people do not understand sign language. The legislative status quo is very general and generic. Research on the levels of understanding of democracy amongst deaf and disabled communities showed it is low. Access to identity documents is a problem. There is unease in the community around dealing with Home Affairs.

Asked if they understood democracy; 89% of deaf people, 78% of blind people and 12% of the physically disabled replied that they did not. Asked if they knew how democracy worked; 93% of deaf people, 78% of blind people and 100% of deaf-blind people replied that they did not. Asked if democracy had worked for them; 100% of deaf people, 73% of blind people and 50% of physically disabled people replied that it had not. At least 15% of the population - approximately 7 million people - is disabled to some extent. These statistics are mostly based on urban figures and the situation is probably worse in rural areas. Disability is not a medical condition, it is a state of being. Only a small percentage of blind people can read Braille, so its use is of limited effectiveness. Many new technologies are available to help access by the disabled. SMS messages were a huge leap forward for the deaf. The similar technology available from Telkom was very expensive.

Regarding the electoral and voting process, the Committee should consider templates and large print format for ballots. The system of bringing along someone to assist in making a vote helped but was not ideal. Access for paraplegics and quadriplegics to Home Affairs offices and voting stations is a problem. There is no mention of this in the Bill or in the Act. The disabled community should be included in discussions, though it had to be noted that it is difficult to get across legal specifics in sign language.

A third member of Challenge Productions stated that they had conducted an informal survey and found that no disabled people were aware of the current identity document drive for voter registration - the information is not disabled-friendly. Disabled people did not know when voter registration would happen and knew nothing about the various parties and their policies. The Section on mobile voting stations made no reference to the infirm and disabled. Home Affairs was not even aware of the problem. Challenge Productions had appeared in front of several Committees with little result. The IEC had agreed to make party political information available even though this is not their responsibility. The references to disability in legislation are in general terms, with no reference to specific disabilities and needs. Disabled people are not asked what their needs are.

Discussion
The Chair stated that it was good for democracy that people could raise issues in Parliament. He asked who Challenge Productions represented, what their relationship is with other organisations for the disabled

Mr W Sikakane (ANC), in response to the first presenter, stated that whilst he had to be sensitive, it was important to highlight certain facts. The presenter had remarked that there had been no change for the disabled since 1994. However, there were now disabled members of Parliament. A law had been passed requiring disabled-friendly buildings. There is a desk in the President's office to take care of disabled issues. Disabled people are given job preference. He could understand if the presenter had said that not enough had been done, but not the statement that nothing had been done.

Mr M Sibande (ANC) supported Mr Sikakane's point. He added that the Committee had found that provincial departments employed disabled people, and infrastructure had been built to accommodate the disabled. Committee reports included reporting on disabled access. He asked what Challenge Productions relationship was with organisations like DPSA, which were fully involved.

Mr Westcott replied that Challenge Productions is a communication company focussed on disability issues. They worked with DPSA and DeafSA and were familiar with the disabled members of Parliament. Mr Mulligan's comments referred to the lack of change to do with democracy and the way elections were run. Other improvements could not be denied. The concern they had was around information and it was open to debate whether the problems here lay completely at Government's door.

The Chair asked that members focus on the Bill and possible amendments to it in their questions.

The Chair asked what specific recommendations they had on the Bill.

Mr R Pillay (NNP) stated that he had read the submission, but could not see what was being suggested for the elections. The hearings were not an appropriate venue to discuss Challenge Productions's educational videos. He asked what they proposed in the Bill that would have an impact on elections.

Mr Westcott replied that they would like a forum to come up with solutions. Because of what Challenge Productions did, they realised the power of visual training and were doing work to make programmes for deaf and favoured the introduction of closed captioning. Captioning could also give access to people whose home language was not English.

The Chair asked that the discussion focus on the Bill since it was urgent.

A member of Challenge Productions stated that the lack of disabled-friendly buildings was a problem - one had only to visit Robben Island to see this. Employment of disabled people was well below the 4% affirmative action target even in Government. Whilst laws passed had been very good, there was a lack of delivery. In the short term, the IEC should make information on the election and voter registration disabled-friendly. They should go to clubs and organisations as access points to reach disabled people. Disabled-friendly media on voting and party political information should be made. Polling stations should be positioned close to disabled people, such as people confined to bed in old age homes.

The Chair stated that the issues would be taken into account. Currently, people could take someone along to assist them. The IEC would be doing the work on mobile units. He asked if the IEC had any comment on the information given.

Adv Van der Merwe (IEC Commissioner) replied that the IEC worked closely with organisations that represented people with disabilities. Section 33 made provision for special votes for people with disabilities - such as those in old age homes and hospital.

The Chair encouraged Challenge Productions to work with the Director General on problems.

South African Human Right Commission submission
Ms J Cohen (Legislation Monitor & Parliamentary Officer, SAHRC) gave the presentation, supported by Mr T Thipanyane (Head of Department: Research, SAHRC). Ms Cohen stated that issues around voting rights of prisoners and citizens abroad had been considered for some time by the Commission. One had to bear in mind that universal suffrage is a fundamental value of the Constitution and that South African had a history of denying voting rights. Any limit on the right to vote must be by a law of general application and must pass the tests in the limitations clause in the Constitution.

In 1994, only prisoners guilty of murder, rape, robbery with aggravating circumstances or of attempting any of these were denied the vote. In 1999, all prisoners voted - this flowed from a Constitutional Court decision based on the lack of legislation. The Court specifically stated that its judgement did not say that Parliament could not limit the rights of prisoners. However it also did not state that Parliament could do so. It held that legislation must be interpreted in favour of enfranchisement. Running a poll in a prison is not an insurmountable task. However, voting by murderers, rapists, etc. might offend people. One had to bear in mind that many people were in prison simply because they could not afford to pay a fine. Attached to the written submission are examples of how other countries deal with prisoners' voting rights.

The SAHRC position was based on universal suffrage. It held that prisoners that committed serious crimes should have their right to vote limited. This would be reasonable and justifiable. Punishment is proportional to the crime - so the more serious the crime, the more serious the punishment. The SAHRC supported the position that awaiting trial prisoners have the right to vote. The position should be similar to the 1994 election, with prisoners guilty of murder, rape, robbery with aggravating circumstances or an attempt to commit any of these denied the right to vote. Other crimes, such as fraud, could be added to the list according to proportionality.

The SAHRC had received a complaint from a student abroad who wanted to vote. Further categories of person potentially unable to vote include: persons on state duty (such as citizens working for the UN or as peacekeepers), members of state institutions that are abroad, students studying abroad, citizens temporarily residing abroad, citizens permanently residing abroad, citizens on business trips or holidays. It was difficult to determine who to include. Some categories could be determined with precision - persons on state duty and students abroad should be afforded the right to vote abroad. Other categories are more difficult to determine and could place too great an administrative burden on the IEC.

Mr Thipanyane noted that Section 47(1)(e) of the Constitution disqualified people from being members of the National Assembly for five years after a sentence of more than twelve months in prison without the option of a fine. The Constitution disqualifies certain people from holding public office and this can be used to support the limitation of prisoners' right to vote. Committing serious crimes shows disrespect to the Constitution. The disqualification of such prisoners could meet any constitutional challenge with the support of Section 47.

Discussion
Mr Sikakane asked where the SAHRC differed with what was before the Committee.

Ms Cohen replied that the SAHRC's understanding was that only awaiting-trial prisoners would be allowed to vote. Their view was that other prisoners - those sentenced for lesser offences - should also have the right to vote.

Mr Pillay disagreed that the categories could be determined with precision. A person working abroad in a restaurant could claim that this was training and thus that s/he should be treated as a student. How was the matter easy?

Ms Cohen replied that she acknowledged that one could get on to a slippery slope with overseas votes. The SAHRC had in mind students overseas studying and registered at recognised tertiary institutions abroad.

A member suggested that a further category be added - national sporting sides.

The Chair responded that arrangements had been made for the members of the national cricket team to vote in 1999, but none of them had exercised his vote.

Ms Cohen responded that the SAHRC had not applied their mind to this category. They would support the extension if such people could be easily and precisely identified.

Mr Thipanyane added that sportspeople might fall under the category of persons on state duty if they were part of a national side since they represented the country. If the criterion was representing one's country, did this mean that people at international flower and agricultural shows should also be included? One had to be careful around limiting the right to vote, even if few people abroad exercised it. In future, one could consider making voting compulsory.

The Chair stated that whilst he understood concerns about overseas voters, there were hundreds of thousands of uncollected identity documents in Home Affairs offices around the country. There were people in rural areas with no identity documents. Only 3000 people had voted abroad in 1999. One heard the cry around overseas voters, but there appeared little concern around people in the country. Why was the SAHRC not raising these issues?

Ms Cohen replied that the SAHRC was very concerned about these issues. Having access to identity documents is important not only for elections but also for a host of other social and economic rights. The Commission had recently released a report on human rights in farming communities, which addressed some people in rural areas. They made a number of findings on Home Affairs accessibility and had taken Home Affairs officials with them into deep rural areas of the Eastern Cape. The Commission was concerned about people's access to identity documents in its daily work. Nothing in the Bill allowed them to raise the issue in the submission.

Mr Thipanyane added that issues around inaction on registration, people's inability to collect identity documents, and so on had to be looked at, but were not really issues that could be solved by legislation.

Mr I Pretorius noted that the SAHRC submission recognised that the idea of murderers being entitled to vote might offend people. Had any survey been conducted on public reaction to extending voting rights beyond just awaiting-trial prisoners?

Mr Thipanyane replied that no study had been made of public perception. There had been public debates on prisoners' voting rights since 1994. One of the first investigations by the SAHRC had been into prison conditions, which had left the Commission tarred as 'friends of prisoners'. Many law-abiding citizens could not vote and one had to be mindful of perceptions created. There would be an outcry from some quarters if prisoners' voting rights were expanded, and an outcry from other quarters if the rights were further restricted. Section 47 clearly took a position on public office. The issue is the extent to which one should limit prisoners' right to vote.

Mr W Skhosana (ANC) asked if the SAHRC thought overseas voters should receive only a national vote or a national and provincial vote.

Ms Cohen replied that the matter had been debated by the Commission. They were uncertain what provision was made for government employees. It would make sense that the same provision be made for other overseas voters.

Mr Sibande asked why persons residing permanently abroad were included in the list of categories of persons abroad that should receive the vote. Such people had no interest in South African affairs.

Ms Cohen replied that the list was a list of potential categories of persons denied the vote by being overseas - the list attempted to describe all South Africans abroad. Many people would have a problem with South Africans permanently residing overseas voting. The SAHRC was not suggesting that all the categories listed be granted the vote; only that students and persons on state duty should be entitled to vote. Other groups were too difficult to identify and should not be allowed to vote.

Mr Pillay noted that the matter of persons in hospital voting had been raised - what was the SAHRC's view on this?

Mr Thipanyane replied that the SAHRC agreed with the provision in Clause 9 of the Bill allowing special votes to accommodate people in hospitals.

The Chair stated that he thought that prisoners groups would have seized the opportunity to give input on the Bill. Interaction with outside groups was good in the process of concretising the 1994 foundations. The IEC made a proposal the previous day which covered the SAHRC proposals. There were constraints that would not allow everyone to be brought on board. It was very serious that some South Africans would not have access. This was a big challenge and everyone should assist. Although only 3000 people had exercised their votes overseas at the last election, if the requirement was based on constitutional principles then it could not be easily cast aside.

South African Catholic Bishops Conference (SACBC) submission
Adv M Pothier (Research Coordinator: Parliamentary Office, SACBC) made the presentation, supported by Mr C Chagunda (Researcher, SACBC). The submission dealt with people excluded from voting. The Church did not feel competent to comment on technical details. It endorsed the Constitutional Court decision on prisoners' voting rights in 1999. It was important that the election be as inclusive as possible because of the history of disenfranchisement.

Permanent residents might have good reason to retain their citizenship, but they are resident in and part of South African society and so should be entitled to vote. It would not be insurmountably difficult to include them in the election. Persons absent from South Africa should be accommodated, though last-minute absences should not be. This would add an administrative burden, but could be accommodated in a way that was not too expensive. The price of not accommodating such people was that they felt excluded from the process. One regularly saw advertisements from other countries asking their citizens overseas to register and vote - why should South African citizens settle for second best? Regarding people that had left the country permanently and had no interest in South Africa - such people would not bother to vote.

There is an anomaly in the Bill. Section 8(2)(f) in Clause 4 allows prisoners that had the option of a fine to register, but only awaiting-trial prisoners may vote. This appeared contradictory. It was unfair discrimination since it meant that if one could pay the fine, one could vote - in essence, if one was too poor to afford the fine, one thereby lost one's right to vote. The explanatory memorandum to the Bill suggested using the National Assembly membership disqualification in the Constitution as a guideline for voting rights, but this was not followed. Further, one should note that under Section 47(1)(e), one was not sentenced until one's appeal was determined or time for appeal had elapsed. So prisoners that had not exhausted the appeal process should have the right to vote by Constitutional principles. The SACBC view was that no prisoners should be excluded. Prisoners have an interest in governance, especially that of prisons, and might emerge from prison between elections. There is no real logistical difficulty in this since mobile stations would already go to prisons for the votes of awaiting-trial prisoners, who make up one-third of the prison population. Granting all prisoners the vote would thus merely extend an operation; there was no practical reason one could not accommodate prisoners. The exclusion of certain categories of prisoner, as in 1994, was a futile exercise. People were often convicted of such crimes and received a lesser sentence than a person guilty of a lesser offence - such as someone receiving five years for aggravated robbery versus fifteen years for sexual assault of a minor. This made no sense.

Discussion
Mr Pillay asked how permanent residents with a genuine interest in South Africa would be identified.

Adv Pothier replied that the SACBC approach would be inclusive. One should grant all permanent residents the right to vote. The mere fact that someone took the trouble to take permanent residence indicated an interest in the country.

Ms M Buthelezi-Oliphant (ANC) stated that some permanent residents were only in the country to make profits and then returned to their home countries.

Ms Buthelezi-Oliphant asked how one could determine that a person would be out of the country when granting him/her a special vote. What would happen if the trip were cancelled?

Adv Pothier replied that verifying this could be difficult. Likely evidence would include airline tickets, conference information and so on. Verification for people on government service would have to take place anyway. If a person did not leave the country then, as long as s/he could not vote twice, it made no difference when the person voted. It would not be an insurmountable administrative task. There would be a similar problem with infirm people in hospital if they recovered in time to be out of the hospital on polling day. The provision would merely extend an existing administrative capacity.

Chief K Morwamoche (ANC) wondered if the presenter was aware that membership of parliament was denied to people imprisoned without the option of a fine. He asked if the SACBC was suggesting dual citizenship.

Adv Pothier replied that the SACBC was neither encouraging nor discouraging dual citizenship. People should have a commitment to their country, but this did not exclude wider commitments - a person is not bound to one country.

Mr Sikakane stated that the SACBC was overlooking the Constitutional Court's ruling placing the onus on the legislature to legislate on which categories of prisoners may vote. This was a matter for the legislature to decide and did not involve taking away a right.

Adv Pothier replied that the Court's decision held that prisoners had the right to vote until it was taken away by the legislature. Such legislation must meet the tests for the limitation of rights.

Ms Buthelezi-Oliphant asked if the SACBC had discussed the issue of prisoners voting with the Church's general membership. The SACBC was suggesting that murderers and rapists be allowed to decide things for those whom they had harmed.

Adv Potheier replied that they had not discussed the question with members. The SACBC made submissions to Parliament often and had never discussed the matters with members. To do so would be impossible. What they did was look at Catholic teaching and doctrine and at the Constitution to analyse legislation.

The Chair asked if the matters were discussed in the Church - what level of the Church gave the mandate?

Mr Chagunda replied that in some cases there was time to get input through Church offices throughout the country. In other cases, time was not available.

Adv Pothier added that the Church is hierarchical not democratic. If the ordinary members were asked, a large majority would support the death penalty, but the official Catholic viewpoint is opposed to the death penalty. There could be a difference between what the majority thought and the position of the Church.

Chief P Mathebe asked that the Committee debate the matter of voting rights of prisoners who had been sentenced with the option of a fine. Not allowing such people to vote disenfranchises the poor.

The Chair responded that the Committee would debate the matter when they got to it in deliberations.

Adv Pothier stated that the Committee should consider white collar crime in the debate. The standard punishment for such crime, which did great damage, is an enormous fine of millions of rands. By contrast, a person committing a poverty crime, which did very little damage, ended up in jail and unable to vote.

The Chair stated that, as the SAHRC had stated earlier, prisoner voting is a very sensitive issue in a society with serious crime levels. One cannot be seen to support murderers and rapists. There were two options - voting by awaiting-trial prisoners and prisoners who had had the option of a fine, and voting by awaiting-trial prisoners only. Permanent residents should not be confused with citizens. One had to be careful not to turn the exercise into a free-for-all. There are approximately one million permanent residents, any of whom could leave at any time. The two issues that came up in deliberations were voting by prisoners and citizens overseas. The Church should assist in restoring moral fibre and dignity. It should encourage people to apply for identity documents and to register to vote. The right to vote is important and people should exercise it.

Chief State Law Adviser's Opinion
Adv E Daniels (Chief State Law Adviser) gave a summary account of his opinion on the constitutionality of the Bill's provisions on prisoners' right to vote. He noted that from a Constitutional and moral view, the issue was not without difficulty. There would be no provision restricting prisoners' right to vote if the Bill were not passed. Parliament may limit rights in laws of general application that meet the test of reasonableness. Unlike the interim Constitution, the Constitution has no provisions for disqualification for the right to vote. Limits must thus be based on Section 36 on limiting rights. The Constitutional Court has applied this test on numerous occasions. Justification is two staged: first, it must be established that the law limits rights; second, the limit must be justifiable under Section 36(1) of the Constitution. The factors in Section 36 are not exhaustive but are key factors in the justification. Any attempt to show that a limitation of rights is justifiable involves a factual inquiry.

There appeared to be confusion on which prisoners may vote. Prisoners sentenced to a period of imprisonment with the option of a fine may vote.

Chapter 2 of the Constitution does not provide a right to register as a voter, but registration is so inextricable from voting that a limitation on registration limits the right to vote.

The nature of the right to vote should be noted. The right is a founding value of the Constitution - universal suffrage of adult citizens on a common voters roll. Every adult citizen has the right to vote. This value was affirmed in the Constitutional Court's judgement on prisoners' right to vote. This right is thus very important, especially given South Africa's history.

The purpose of the limitation is to exclude certain prisoners from being registered to vote. The memorandum on the objects of the Bill links Section 8(2)(f) in Clause 4 to Section 47(1)(e) of the Constitution. The wording of 8(2)(f) more or less reflects the idea that prisoners not guilty of serious offences may register to vote. There are material differences between 47(1)(e) and 8(2)(f) but aligning them is reasonable and justifiable. The right to vote is linked to the right to be voted for.

The limitation affects all prisoners irrespective of the kind of crime committed. The class of prisoners affected are those serving a sentence without the option to pay a fine. This does not discriminate against the poor as suggested in the SACBC submission because if one could not pay the fine but had the option to pay a fine, one would still have the right to vote even in prison.

Section 36 requires that the State consider less restrictive measures to achieve the purpose. Adv Daniels was not in a position to consider this fully because he had not been given comprehensive reasons for the limitation, but he found it hard to see less restrictive measures.

In Canada, an initial restriction on prisoners' right to vote was rejected by the Supreme Court. The Government responded by restricting the right to vote only of prisoners serving a sentence of more than two years, with the restriction understood as an additional punishment. The majority of Supreme Court justices held that this was unconstitutional. They rejected the Government's claim that such restrictions were a matter of social/political philosophy and that the Courts should thus show deference.

In the South African case, the issue is not deference but the need to bring the right to vote and right to be voted for in line with the limit in the Constitution. There is no suggestion that the amendment is to add to the punishment of prisoners. Sections 47(1)(e) and 106(1)(e) of the Constitution provide additional punishment for people that have served sentences - this punishment is sanctioned by the Constitution and not limited by Section 36. The Canadian case is fundamentally different. This is probably why the Constitutional Court left open the question of disenfranchising prisoners, and it is not likely to follow the Canadian approach.

The Constitutional Court will accept the importance of the purpose of Section 8(2)(f) in Clause 4. No Constitutional amendment is needed for it, though this would guarantee it.

Discussion
Mr Sikakane stated that the Bill catered for awaiting-trial prisoners. The Constitution bars people sentenced to prison without the option of a fine from taking seats in the National Assembly. What about people in prison without the option of a fine?

Adv Daniels replied that the Bill disenfranchised prisoners that had not had the option of a fine. People whose sentences had the option of a fine are excluded from the provision and may vote.

Mr Sikakane responded that the Bill did not say that prisoners whose sentence had the option of a fine could vote.

Adv Daniels responded that the wording was clumsy. Registration is allowed for people whose sentences had the option of a fine.

Adv Kelner (State Law Adviser) stated that the words in 'Only prisoners who are awaiting trial may vote' in 24B(2) in Clause 7 were taken verbatim from the Cabinet decision. The Committee could interpret them as they liked.

The Chair responded that the problem was that there were two options in the drafting.

Adv Kelner stated that the reference to prisoners without the option of a fine appeared in the registration section, not in the voting section. Similarly, under the registration section, 16 year old citizens may register to vote, but they may not vote. There is thus precedent for separate treatment.

The Chair asked how 24B should be read.

Adv Kelner replied that 24B said nothing about registration, that was dealt with by 8(2)(f).

Mr Pretorous asked what Adv Daniels's view of 24B was. Should the Committee amend 24B(2) or would it stand?

Adv Daniels replied that 24B(2) would have to be amended; it had been certified under pressure of time.

Ms Buthelezi-Oliphant asked how people could be registered that were not supposed to vote.

Adv Daniels replied that Ms Buthelezi-Oliphant was correct to be concerned. A prisoner whose sentence had the option of a fine may register to vote and 24B(2) could not take away the right to vote.

Chief Morwamoche asked if the sentence needed to be rephrased for clarity.

Adv Daniels replied that a person not yet out of appeal is still 'awaiting trial' - it would not be necessary to clarify the sentence.

Mr Skhosana asked if people on parole whose sentences were not yet complete would be able to register.

Adv Daniels replied that the Bill had in mind people serving a sentence in prison. He assumed that people on parole may register.

Dr C Mulder (FF) stated that the best approach might be for 8(2)(f) to be brought fully in line with Section 47(1)(e), which referred to sentences of more than twelve months without the option of a fine.

Adv Daniels replied that the 47(1)(e) also imposed the disqualification for an additional five years after the sentence. He could not make the change, but the Committee could if it wanted.

Dr Mulder asked if it would be Constitutionally safer to get closer to the provision in 47(1)(e).

Adv Daniels replied that doing so might make it more difficult constitutionally, since this would involve introducing additional punishment.

Dr Mulder asked if the Committee would have to amend 24B(2) to take matters further.

Adv Daniels replied that it might be possible to read prisoners with the option of a fine into 24B(2) but the House should clarify it.

Adv Van der Merwe stated that the IEC would appreciate different wording for 24B(2) for the sake of implementation.

The Chair asked the State Law Adviser and other legal experts to apply their minds to a rewording of 24B(2).

Adv Kelner responded that they would need the mandate of the Committee to do so.

Mr Sikakane stated that they should make clear that prisoners whose sentences had the option of a fine could vote.

The Chair gave the Committee's mandate to the State Law Adviser and other legal experts to come up with an appropriate wording of 24B(2).

The Chair stated that the only area still to be settled by the Committee was overseas voters.

Afternoon Session:
The Chair stated that the issue before the Committee was how to deal with overseas voters. Once this had been settled, the Committee could return to considering the Bill Clause by Clause. 24B in Clause 7 would be reworded to make clear that awaiting-trial prisoners and prisoners serving a sentence with the option of a fine could vote.

Chief K Morwamoche (ANC) asked when the Committee would receive a copy of the Chief State Law Adviser's opinion.

Adv Kelner (State Law Adviser) replied that Adv Daniels (Chief State Law Adviser) had not been in the State Law Advisers' office when he had returned there. Adv Daniels wanted to make some corrections to his opinion. Adv Kelner had left a message that copies of the opinion should be made available to the Committee as soon as possible.

The Chair asked Adv Van der Merwe (IEC Commissioner) to remind the Committee of the details of the IEC amendment on overseas voters.

Adv Van der Merwe replied that the amendment inserted 33(1)(d) into Clause 9 of the Bill. This allowed special votes for voters overseas if they fell into the categories described: tertiary students, persons sent overseas in connection with their South African employment, and persons on business activities. The State Law Adviser had expressed concern about 33(1)(d)(iii) - which covered persons on business activities - on the grounds that it was too wide and could be misused. If the Committee included it in the Bill, the IEC would safeguard against misuse in the Regulations.

Adv Kelner (State Law Adviser) stated that if one looked at the other categories granted special votes in 33(1), the people in those categories had no choice in not being able to vote normally. Being overseas on business activities is usually a matter of choice and such a person would almost always be in the same position as a holidaymaker. Granting a special vote could be justified where a person had to be away. If one granted a special vote to a person away by choice, why not grant one to all people away by choice? Regarding the restriction of the special votes for those enumerated in (d) to votes for the National Assembly and the SAHRC's suggestion that overseas voters all be treated the same as state officials overseas, he noted that state officials would be deemed resident in the Head Office of their Department, according to the new Clause 3 as amended following the suggestion of the IEC, and would likely all cast votes for the Gauteng Provincial Legislature.

Ms M Maunye (ANC), noting that there was concern around 33(1)(d)(iii), asked if the IEC could tell the Committee what the motivation for its inclusion had been.

Adv Van der Merwe replied that the three categories enumerated in 33(1)(d) were the three categories of citizens overseas permitted to cast special votes in the previous election.

Ms Maunye asked if the IEC could expand on what it had in mind with the reference to business activities.

Dr C Mulder (FF) stated that the Committee had to consider people's right to vote very carefully since it is a founding principle of the Constitution. Whilst one could argue about the practicalities, one had to consider the question in terms of a citizen's entitlement to vote. He agreed that the right could be limited, but this had to be done in terms of Section 36 and a case could be made that the IEC suggestion was not justifiable under the limitations clause. Whilst, technically, people overseas could vote by returning to South Africa, the fact that the categories of overseas voter are drawn up says that one had to take account of circumstances. The measure should be as inclusive as possible. Indications are that the question may be tested in the Constitutional Court. He asked why only tertiary students overseas were permitted to cast special votes and not also school pupils over the age of eighteen. Much attention had been paid to the R3 million spent for 3000 votes. However, people in the Foreign Service are already entitled to vote - so foreign missions had to make arrangements for voting anyway. The people he was concerned about were people out of the country temporarily, with every intention to return. South Africans are very proud of the Constitution, but other jurisdictions make it possible for their overseas citizens to vote. There are arguments in favour and against overseas voting. By allowing some to vote, others were being excluded and thus the right to vote was being limited. If a right is limited, the limit must pass the test of Section 36. A provision such as the one proposed by the IEC would not pass this test. He agreed that the first priority was to get citizens in the country to vote, but with that being addressed, citizens abroad should be allowed to vote. Dr Mulder distributed an amendment from the Freedom Front in which the enumerated categories in 33(1)(d) were removed, so that all temporarily absent citizens could cast a vote.

[The Freedom Front version of (d) allowed a special vote due to a person's 'temporary absence from the Republic, where he or she ordinarily resides, but in this case, only in an election for the National Assembly'.]

Mr M Sibande (ANC) expressed concern about the wide scope of the Freedom Front's amendment. One could challenge the idea that everyone abroad should be permitted to vote. There were persons abroad that undermined the Constitution and Government policy by their activities as mercenaries or drug runners. Others sought to undermine South Africa's image. How could the Committee extend special consideration to such people?

Chief P Mathebe (ANC) agreed with Mr Sibande. Whilst he agreed with Dr Mulder on the importance of the right to vote, elections are not arranged overnight. People knew three to four months in advance when the election would be held and could make arrangements accordingly.

Chief Morwamoche stated that he supported Mr Sibande's sentiment. People have the right to vote. They could come to the country to register and vote rather than have resources wasted on them.

Mr R Pillay (NNP) stated that whilst one would like to see everyone vote, things had to be balanced. There were millions without identity documents and others faced with circumstances beyond their control that meant they would be unable to vote. One had to be cautious about spending millions on a few when people in the country were not benefiting. He could not support a process where the well-off were given assistance at the expense of the poor.

Mr I Pretorius (DA) stated that he had raised the issue that provision should be made for South Africans abroad. Naturally, this would cost money, but the IEC vote was about R700 million and if a fraction were spent on people abroad, this was not taking away resources from the poor. There are other measures in place to ensure people could get identity documents and additional money had been requested for the IEC. There are thousands of people overseas - many of them because they could not find employment in South Africa. All modern democracies allowed people outside the country to vote. South African citizens abroad should be allowed to vote at their nearest consulate.

An ANC member stated that people overseas should come to South Africa to cast votes. Millions of people in rural areas could not afford to collect or obtain identity documents. Money should not be spent on people that could afford overseas trips.

Chief Morwamoche agreed - if one could afford to fly overseas for a job then one clearly belonged to a well-off family. How could one expect the well-off to receive more resources than the rural poor?

Mr W Skhosana (ANC) stated that everyone on the Committee agreed that people on government business and in embassies and students overseas should be permitted to vote. Whilst one would like to cover all citizens, it could not be so broad that one did not know who was being covered. He asked that members consider the point raised by Ms Maunye on the interpretation of 'business activities'.

The Chair stated that the categories as enumerated by the IEC are correct and members agreed on them. He asked if members that wished to expand the categories would state what other categories they had in mind and develop wording to bring such categories in.

Chief Mathebe stated that the category under discussion was people on business. Such people would know well in advance when the election would be held and so could make arrangements.

Dr Mulder stated that the Committee should address the problems jointly. Everyone understood the problems in the rural areas, but it would not withstand the constitutional test to use problems in the rural areas as a reason to disenfranchise people. There were many young South Africans temporarily abroad for a few years who remained committed to the country. One could not remove voting rights based on there being bad South Africans overseas. People found it difficult to find jobs because of government policies, so they went abroad on a temporary basis - not because they were rich but because they wanted to make a living. The reality was that people faced problems and went overseas. He suggested it might be possible to find a formulation to accommodate such people in terms of business activities. This was not to deny the problems in rural areas - those were different problems though.

The Chair asked if Dr Mulder was referring to young people that went overseas because of affirmative action policies.

Dr Mulder replied that there were many different reasons why people went overseas, and they should not be discriminated against. 33(1)(d)(iii) could make provision for people abroad on contract for one or two years.

The Chair stated that he thought all members agreed with the IEC's 33(1)(d), aside from concerns around (d)(iii). If members were not able to identify further categories and define them, then there was a problem The Committee needed a clear amendment if it was to consider it. The issue should not be politicised and looked at as a way to get votes.

Mr Pillay stated that (d)(iii) should be deleted. Further, 'temporary' remains undefined which is a problem. (d)(i) is open to challenge because study did not have to take place at a tertiary institution - one could study on the job.

The Chair asked if (d)(ii) did not cover people sent to study as part of their job.

Mr Pillay responded that he was focussing on (d)(i) - if it were accepted as it stood, there would be a challenge because education could be obtained at a company.

The Chair responded that (d)(ii) covered cases where a person was sent to work, even if that was for study.

Mr Pillay responded that the two should then be linked to avoid the challenge.

The Chair asked Adv Malatji's advice on linking (d)(i) and (ii).

Adv Malatji (Chief Director: Legal Services, Department) replied that (d)(i) is about education and (d)(ii) is about employment. The two are not related.

Mr Pretorius asked why (d)(iii) should be deleted. Could the Committee not use the IEC amendment and rephrase (d)(iii) to allow people overseas to vote?

The Chair asked Mr Pillay if he was suggesting that a person registered to vote who left the country on business should not be allowed to vote.

Mr Pillay responded that he was. With (iii) as a stand-alone, it could mean anything.

Adv Malatji responded that (i) to (iii) enumerate (d) - they do not stand alone.

Mr Pillay responded that the definition was far too wide.

The Chair asked Adv Van der Merwe's opinion.

Adv Van der Merwe stated that he had no doubt that the IEC's amendment would be constitutionally acceptable. The limitation of the right to vote did not come into it. The question was around where to vote. The Act makes no provision for voting stations overseas. So, the Clause deals with exceptions - it defines what cases are 'hard luck' cases that deserve special treatment. For example, physically infirm people, people in government or diplomatic service, peacekeepers and election workers. (d) lists further hard luck cases. It would be difficult to put a timeframe on 'temporary'. For a student, a temporary absence might be a year or even three years. Whilst a three year absence on business would not be temporary. The IEC's view was that (d)(iii) applied to persons going overseas to get contracts for their South African businesses. The Clause does not limit rights, it deals with hard luck cases. Regarding the feasibility of special votes for persons overseas, the IEC's rough estimate of the cost is R3 million. If the Committee accepted (d) without the enumerated purposes, the provision would be very wide. The IEC had not budgeted for and did not have the logistical capacity for broad overseas voting.

The Chair stated that he did not think there was much disagreement - no one had a problem with the IEC's amendment as it stood.

Dr Mulder responded that he understood Adv Van der Merwe's points, though he disagreed with him on the constitutionality of the Clause. If (d)(iii) allows citizens temporarily out of the country on temporary contract to vote, then he would support the IEC amendment, otherwise he would stick with the FF proposal.

The Committee adjourned for five minutes to allow parties to caucus.

Whilst waiting for all members to return, the Chair went over what the Committee had done on the Bill. The first set of amendments proposed by the IEC had been accepted and would be incorporated into the Bill. Not much had come from the hearings. The position of prisoners had been clarified and the legal experts had been given a mandate to redraft the provisions.

Adv Kelner stated that a new draft of 24B had been drawn up.

With all members returned, the Chair asked for the party positions.

Mr Sikakane stated that the ANC accepted the amendment to Clause 9 as proposed by the IEC.

Mr Pretorius stated that the DA supported the amendment as proposed.

Dr Mulder stated that he supported the amendment as proposed and withdrew his own amendment.

Prince N Zulu (IFP) stated that the amendment to Clause 9 is a balancing act and the IFP supported it.

The Chair stated that since all parties agreed, there was no need for further debate. The manner in which the matter was handled by the Committee was good. It was surprising that Mr Swart (ACDP) was not present given all the mobilising of ACDP members he had engaged in. The Chair thanked the parties for the manner in which the Bill was handled. The big challenge would be to include the thousands of people in the country unable to vote because of inadequate systems. He called on members of Parliament and the IEC to focus on these people. Home Affairs should ensure that people received the identity documents before voter registration. The Committee had tried to accommodate South Africans overseas. Of the submissions, only the SAHRC submission had been relevant. The Challenge Productions submission had focussed on education, not the Bill. The South African Catholic Bishops Conference submission was based only on the views of the hierarchy. The Committee should consider the Bill Clause by Clause. He asked Adv Kelner to read the redrafted version of 24B.

Mr Pretorius stated that he would have to discuss the Bill with his party caucus before he could vote on it. He would only be ready to vote by the next meeting on 19 September.

The Chair stated that the Committee should try to arrange its next meeting for the following day.

Adv Kelner objected that this would not leave enough time for the Bill to be properly redrafted. To do it properly, the State Law Advisers would need time to prepare the document and discuss it with the IEC. It could be ready by the following afternoon at the earliest.

Chief Mathebe responded that the State Law Advisers were not starting with the Bill afresh - the proposals were known and the redrafting could be completed that night.

The Chair stated that if the majority of members thought that meeting on 19 September would be best then the Committee would meet then.

The Committee agreed to meet on 19 September at 8am.

Alteration of Sex Description and Sex Status Bill: adoption
Mr Mogotsi (Director: Legal Services, Department) gave a summary of the submissions on the Bill. The SAHRC had supported the Bill, but suggested an amendment, which was encapsulated. The Cape Town Transsexual/Transgender Support Group applied for an extension for submissions, which was not possible to grant. Ms S Heradien had suggested a new title for the Bill, the deletion of 'unless such reasons have been made public' from Clause 1(3) and the inclusion of provisions for intersexed people in the Bill. The Lesbian and Gay Equality Project supported the Bill and proposed the inclusion of definitions and of provisions for intersexed people in the Bill. The Gender Commission supported the Bill, but raised issues of privacy. Ms S Gross had also raised the lack of inclusion of provisions for intersexed people in the Bill. The Department and State Law Advisers included the amendments made to the Bill by the Committee. The first amendment was to Clause 2(b) allowing any experienced medical practitioner to provide the necessary report - not only the one that had performed the procedures or applied the treatment. The second amendment deletes 'unless such reasons have been made public' from Clause 1(3).

The Chair stated that it was clear that a number of issues were not catered for in the Bill. At what point would these be accommodated?

Mr Mogotsi replied that it had been resolved that it would not be ideal to incorporate the provisions in the Bill as it stood. The Department should come up with legislation to cater for the categories not catered for as a matter of urgency.

Mr Pretorius stated that the DA supported the Bill and that the way forward was the one indicated by Mr Mogotsi. The Department should liase with people and come up with a comprehensive document on the steps forward.

The Committee adopted the amendments and a motion of desirability of the Bill. The Bill was reported with amendments.

Adoption of consolidated report on provincial study tours
The Committee adopted the consolidated report on provincial study tours.

The meeting was adjourned.


Appendix 1

Proposed amendment by the Freedom Front of Clause 9 of the Electoral Law Amendment Bill

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 I must allow a person to apply for a special vote if the 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-

[I] (a) physical infirmity or disability, or pregnancy;

(ii] (b) absence from the Republic on Government service or membership of the household of the person so being absent;

[or]

[iii] (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, but in this case, only in an election for the National Assembly;

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


Appendix 2

COMMITTEE AMENDMENTS AGREED TO

ALTERATION OF SEX DESCRIPTION AND SEX STATUS BILL [B37-2OO3]

CLAUSE 1

1. On page 2, in line 11, after "treatment" to insert "or by a medical practitioner with experience in the carrying out of such procedures and the application of such treatment".

2. On page 2, in line 17, to omit "unless such reasons have been made public".

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