Timeline for implementation of Concourt judgement; PPE Procurement & Outstanding Matters; with Ministry; MDB on 2021 LGE
18 August 2020
Chairperson: Mr B Bongo (ANC), Ms S Shaikh (ANC, Limpopo)
Video: JM: PC on Home Affairs and the SC on Security and Justice, 18/08/2020
The joint virtual meeting of the Portfolio Committee on Home Affairs and the Select Committee on Security and Justice received a briefing from the content advisor on possible timelines for amendment of the Electoral Act, and a presentation by the Municipal Demarcation Board on the progress in ward demarcation for the 2021 Local Government Elections. The Minister of Home Affairs and his deputy were in attendance.
Members were presented with 4 scenarios for amendment of the Electoral Act. The most time-consuming and tightest timeframe was amendment through a Section 76 bill that introduced a constituency-based system. This would require the 2024 election to be held on the last constitutionally permissible date. The constituency system in respect of a Section 75 Bill had a looser timeframe but would still require almost the full amount of time allowed. The non-constituency-based systems bills were much more time-efficient given there was no need to demarcate constituencies, however it had been made clear that a constituency system was the most probable outcome. The Minister noted the urgency of the amendment and clarified that he would probably attempt to expedite its passage through Cabinet. He also put it to the Committee that it would likely be impossible to amend the Electoral Act without amending the Constitution.
The Municipal Demarcation Board informed Members that the coronavirus pandemic and lockdown had delayed the process of public consultation and hence the finalisation of the ward boundaries for handover to the IEC, which had driven the MDB to submit ward boundaries to the IEC in two “batches”, one of which had already been submitted. All final boundaries would be submitted in November 2020. Members’ questions centred on how public consultation had been executed virtually and how the MDB had managed to engage the public in rural areas where connectivity was difficult, as well as discussion on whether the use of registered voters to decide wards was appropriate.
The Portfolio Committee on Home Affairs received a report from the DHA on its PPE procurement processes during the Covid-19 pandemic, as well as an update on issues raised by the Committee in previous meetings. The Department noted it had sufficient budget for PPE procurement and had followed Treasury notes in its procurement processes, as well as its own procurement strategy developed by the DHA Exco. The Committee issues presentation covered DHA mobile units, the progress of the Border Management Authority, the establishment of asylum-seeking facilities and the topic of refugees in Cape Town, among other issues. Members’ input focused on the procurement of “deep cleaning services” and other issues related to PPE procurement, as well as how the DHA was handling the issue of legacy cases.
Co-Chairperson Bongo welcomed the joint sitting.
Co-Chairperson Bongo noted that Parliament was moving into the third term still under the Covid-19 pandemic, and noted his appreciation of the way the government had handled the pandemic. He noted that South Africa was in the process of constructing a non-racial, non-sexist, democratic, united and prosperous country. The Committee had to be part of this work. He thought that the parties in the Committee had been constructive and had not played party politics. This construction would not be easy.
Co-Chairperson Bongo disputed media reports implicating him in corruption, noting he was the only Minister during his time in Cabinet who had stayed in the Parliamentary Village. He argued that media reports on his tenure as a minister were blatantly untrue.
He ceded to Co-Chairperson Shaik. She ceded to Mr Adam Salmon, Content Advisor to the Committee, to address the possible timelines for the reform of the Electoral Act
Mr Salmon noted 4 possible types of bill Parliament could pass without a Constitutional Amendment. Should an amendment be necessary, the deadline would have to be pushed out and would likely miss the Constitutional Court deadline of 4 June 2022.
S76 Constituency System Bill
The election date would have to be proclaimed on 20 May 2024 by the latest in terms of the Constitution. The lengthiest process for the IEC would be the 6-month preparation process once the demarcation board had decided on constituency boundaries. The IEC proposed it would take the demarcation body at least 18 months to demarcate the constituencies. In this scenario the President would only have 2 weeks to assent to the Bill, given tight timelines. The timeline did not allow for mediation between the National Assembly and the National Council of Provinces. The biggest item in the NCOP’s timeline was time to consult with provincial legislatures. The provincial recess could disrupt the Bill’s timeline, so coordination with provincial speakers would be essential. The National Assembly’s timeline for bill passage was slightly shorter. The introduction of the Bill to the Assembly on this timeline would be 17 January 2021 at the latest. Members had indicated a desire for a symposium on the electoral system options with political parties. This could be integrated with the consultation of government structures. The Bill would have to be drafted by the latest 16 September 2020, meaning the Task Team would have to conclude its work by the 2nd September. This timeline would necessitate the latest Constitutionally possible election date.
S75 Constituency Bill
Despite the reduced amount of consultation needed under a S75 Bill, the constituency periods and recesses meant that there was little difference in the timeline between the S76 and S75 Bill, following a roughly similar process. This timeline allowed for the possibility of the President returning the Bill to Parliament, as well as a longer period for the President to consider the Bill.
The non-constituency bills had much shorter timelines as they avoided the 18-month demarcation process. However, experts and parliament reports had generally recommended moving towards a constituency system similar to that used in local government, so these scenarios were less likely. Timelines were far more relaxed in the non-constituency S76 and S75 Bill scenarios.
Co-Chairperson Shaik noted this was a working document and that members should keep this in mind when asking questions.
Mr A Roos (DA) asked Mr Salmon, noting legislation that would have to be amended aside from the Electoral Act, including for instance the Political Party Funding Act. He asked for an indication as to where the Committee was in this regard and how amending these acts may affect the timeline.
Mr M Chabane (ANC) requested input from the Minister on what Cabinet’s role would be in the drafting process, and what processes Cabinet had engaged in to work towards this drafting process. He thanked the IEC for its work on the issue.
Dr Aaron Motsoaledi, Minister of Home Affairs, began with the issue of other legislation. Cabinet currently had before it the existing Electoral Act amendments which had to be finalised before the 2021 Local Government Elections. It would be discussed on 20th August and released for public comment after this discussion. Home Affairs was still engaged in the drafting process to propose policy. Where matters were urgent, Ministers could motivate to the President why their matter deserved special consideration and some of the normal Cabinet processes could be set aside. The Minister noted this approach would likely be required in drafting the new electoral system.
Mr Salmon replied that there would need to be a raft of concurrent amendments to related legislation when the electoral system was changed.
Co-Chairperson Shaik thanked the presenters, proposing the need for a follow-up meeting on the timelines.
The Minister put it to the Co-Chairperson that it would likely be impossible to avoid changing the Constitution in changing the electoral system, so the timelines involved in the draft document would likely be unrealistic.
Municipal Demarcation Board (MDB) presentation for 2021 LGE
Ms Mbali Myeni, Deputy Chairperson, MDB, apologised for the Chairperson’s absence as he was ill. In the previous meeting with the Committee, the MDB had indicated the process it would follow in the handing over of wards to the IEC in August 2020. The Covid-19 pandemic had interrupted the ward delimitation process as the MDB had to seek other ways of doing its work.
Mr Muthotho Sibiti, CEO, MDB, presented the MDB’s submission to the Committee.
The MDB was mandated to determine municipal outer and ward boundaries, assess municipal capacity and render advisory services to stakeholders. The Board had taken the decision for the MDB to focus on ward boundaries in the current moment.
The ward delimitation process required the IEC to certify the voters roll, the Minister of COGTA to publish the formula for determining the number of councillors and the municipal MECs to decide on municipal councillor numbers.
The success of the MDB’s work was dependent on collaboration with various stakeholders, including SALGA, traditional leaders, the IEC, the NCOP, MuniMECs, various portfolio committees, local municipalities and the general public.
Voting districts were used as building blocks for the creation of wards. These voting districts had to create a continuous ward, and the MDB tried not to split voting districts. The MDB preferred ward boundaries to be as identifiable as possible.
The ward delimitation criteria required the number of registered voters in each ward not to vary by more than 15% from the norm. The fragmentation of communities was to be avoided as much as possible. The availability and location of a suitable place or places for voting was also key, taking into consideration communication, accessibility, population density, topography and the number of voters entitled to vote within the required timeframe. Ward boundaries should be identifiable as far as possible.
The municipal norm was determined by the number of registered voters in the municipality divided by the number of wards in the municipality. Every municipality therefore had a different norm.
The MDB conducted technical consultations with municipal officials in August and September 2019 to prepare draft wards – these draft wards had no legal status. The draft wards were prepared and distributed to municipalities and the general public. Public consultation meetings began in February 2020 and were to be completed by 30th April 2020. The MDB had planned the handover of wards to the IEC by August 2020. The Covid-19 pandemic disrupted the public engagement process when the MDB had only consulted with 4 provinces and 109 municipalities on a face to face basis. 104 municipalities remained to be consulted. The MDB consulted with the IEC and revised its programme, with final delimited wards due in November 2020.
The MDB reviewed the ward delimitation programme to allow more time for completing outstanding public consultations. In view of the uncertainty caused by the Covid-19 pandemic and lockdown, the MDB divided municipalities into two batches, Batch 1 (where public consultation had been completed), and Batch 2.
Batch 1 Municipalities’ submissions were due by the 31st May 2020. The MDB received 518 submissions, analysed and presented to the Board on 22nd July 2020. The MDB approved the 2321 wards in 109 municipalities to be gazetted for objections, which was done between 29th July and 12th August depending on province. Any person aggrieved by published wards had to lodge their objection within 14 days of publication. Batch 1 Municipalities’ data would be handed over to the IEC on 30th September.
In terms of Batch 2 Municipalities, the closing date for submissions was 31st July 2020. The MDB would consider submissions on the 2147 wards in 104 municipalities and approve them for publication on 22nd September 2020, with gazetting between 29th September and 7th October.
The lack of understanding of demarcation and ward delimitation had posed challenges to the MDB, as it had been requested to increase the number of wards which was outside its mandate.
The increasing number of wards and changing ward boundaries disrupted municipal planning. Wards were used as planning units for infrastructure and service delivery.
Concerns raised included communities preferring to be left in familiar wards, wards splitting communities that considered themselves whole (especially in areas with traditional councils) and the use of registered voters rather than population.
The large size of certain communities often made it impossible to keep communities inside one ward. For instance, Hillbrow was split over 5 wards due to its high population.
The sizes of wards varied in spatial size and extent due to the density of voters – this might mean that some councillors would have to travel longer distances to service their constituencies and vice-versa. Lower density areas had bigger wards.
In conclusion, the CEO noted that Covid-19 had necessitated a review of the demarcation programme. The MDB would be able to meet the agreed timeframes by November, and continued to encourage engagement with the delimitation process.
Mr M Tshwaku (EFF) checked with the MDB as to whether there was an increase in ward numbers and voting stations, and whether there were problems with the Vuwani and Matatiele demarcations. He noted a number of spelling errors in voting station names in Mpumalanga which communities had raised an issue with him. He also enquired whether voting stations fell on private real estate, especially farms, noting bad experiences with these locations in past. Was the MDB 100% sure its public consultation process was reaching people without data, the poor and those in rural locations? Which councillors were invited to virtual platform meetings? Were municipal MLOs and PR or constituency councillors invited? He proposed that ward demarcations had in the past been influenced by political considerations, which caused instability.
Mr E Mthethwa (ANC, KwaZulu-Natal) enquired as to which statistics the MDB was using to demarcate wards, as those who were not registered to vote also needed access to services.
Ms M Bartlett (ANC, Gauteng) wanted clarity on the issue of ward norms.
Ms T Legwase (ANC) wanted to know how the MDB had strengthened its public participation process in affected areas, and whether it had dispute resolution processes for when demarcation was unpopular and caused issues. She enquired as to what extent the board took community representation into account in determining municipal boundaries. She cited the example of Tlokwe and Ventersdorp in the North West where there had been longstanding complaints of the amalgamation into a single municipality.
Ms Myeni replied to Mr Tshwaku’s questions on virtual meetings, noting that the MDB was aware that some communities may not have access to the virtual platform. The MDB had thus used social media and community radio stations to further engage with especially rural areas.
The MDB was aware that some communities would not have access to virtual platforms to be involved in consultation. The MDB had thus used community radio stations and social media to attempt to reach rural communities, as well as the use of television broadcasts. The MDB had attempted to use all media platforms to reach communities.
The CEO replied that in 2016 the number of wards that came from the formula was 4392. In 2021 there had been an increase to 4468 wards. This was more an issue for the Minister of COGTA and the MECs as they made these determinations. Voting stations, their location and number were the purview of the IEC, which was why the MDB handed over wards early so the IEC could create infrastructure for elections.
The Vuwani issue was the result of an outer boundary process, and the situation was currently calm. The submissions that came from Limpopo were proportionally much higher than other provinces. When objections were finalised, the MDB would be able to share these with the security cluster.
Matatiele was not an MDB matter, but rather a provincial boundary matter that was being handled by COGTA. A provincial boundary change necessitated a constitutional amendment and assent from both concerned provincial legislatures.
Any individual or party could make a submission on ward boundaries, although political parties were overwhelmingly concerned by boundaries. Where objections to demarcations were made frivolously, these would be shot down by the MDB.
The MDB’s principal document in deciding boundaries was the voters’ roll submitted by the IEC, which contained the number of registered voters by ward and voting district. The CEO had raised using registered voters as an issue, as the ward councillor had to service many people who were not registered voters. The use of population rather than voters was an open policy debate.
The MDB had a limited staff contingent, and could not execute fiscal verification in all municipalities. The MDB had raised a regionalisation process to deploy staff to specific provinces, but this was impossible due to budgetary constraints. The MDB thus considered impacts of its demarcations throughout the consultation process.
In response to Ms Bartlett, he noted that slide 10 was an example of how the MDB determined ward norms by municipality.
The Tlokwe-Ventersdorp issue was an outer-boundary dispute, and the MDB had received an outrageous submission claiming R16bn in compensation from it for an unclear reason. The MDB had made it clear it would only deal with the Tlokwe issue after the 2021 demarcations were complete.
Co-Chairperson Bongo thanked the MDB.
He noted that he was committed to complying with the Constitutional Court’s 24 month deadline for amendment of the Elections Act. He endorsed Mr Roos’s point on other legislation that would have to be amended.
He noted that this was the end of the joint sitting of committees, and subsequent discussion would only be for the Portfolio Committee on Home Affairs.
PPE procurement report
Chairperson Bongo noted the need for accountability and transparency in the procurement of PPE by departments. He ceded to the Minister in this regard.
The Minister noted the most important issue was the attached document laying out answers as to who got which contract where. This same document would be handed to the Cabinet committee on this issue led by the Minister of Justice and Correctional Services.
Mr Jackson McKay, Acting Director-General, DHA, introduced the DHA’s submission on the processes followed in the procurement of PPE by the DHA.
Mr Gordon Hollamby, CFO, DHA, began the presentation. The report went wider than purely PPE, and included cleaning services as well. The DPSA, in Circular 7 of 2020, required departments to procure PPE. The DHA Exco approved standardised procurement requirements for Covid-19 on 7 April 2020, and presented this approach to the Portfolio Committee on the 28th of April 2020. The Exco approved a R22m budget, subsequently increased to R39m. The DHA had attempted to stay
away from brand specific and imported products.
The DHA had received parliamentary questions on PPE procurement from various members.
The DHA still had sufficient budget to procure PPE currently, but would reprioritise expenditure if needed.
The bulk of expenditure had been on consumables, especially medical supplies, toiletries and security.
Procurement processes followed were as followed: all PPE procurement below R2000 per case was done via petty cash initially, given the DHA’s extensive spread of offices. Petty cash controls were very strict, and absence of receipts was not allowed.
Treasury RT contracts were used, as was the CSD emergency procurement process, which allowed deviations from the Treasury RT contracts where the procured equipment was 1) approved by the Department of Health and 2) equal to or less than the maximum Treasury-set price.
The DHA had submitted a list of all orders placed with suppliers for Covid-19 related procurement to the Presidency on the 7th August, involving 441 transactions. Petty cash transactions were half of these transactions, but the total value of these petty cash transactions was only 1% of total expenditure (slightly above R200 000 of R20.2 million)
The DHA was following the Treasury Instruction Note No. 7 of 2020/21 currently.
Briefing on Outstanding Matters
Mr Mckay stated that the DHA had also submitted a report on the progress made on input from the Portfolio Committee.
The first issue was that of the appointment of the DDG for Information Services. The selection process was due to unfold in March 2020. Shortlisting was undertaken on the 2nd July, and interviews were held on the 10th July. No suitable candidates were found, and the process of re-advertising was in progress.
With regard to plans to respond to IT queries to members of the Committee, letters would be written to members on processes followed for civic queries, all queries would be disseminated through DHA’s intergovernmental relations unit.
The DHA had a total of 100 mobile units, 4 at head office for special projects. 96 units were deployed to provinces, with 14 in the Eastern Cape, 9 in the Free State, 8 in Gauteng, 13 in KwaZulu-Natal, 12 in Limpopo, 10 in Mpumalanga, 10 in the Northern Cape, 9 in the North West and 11 in the Western Cape. These mobile units could take applications for IDs and passports and register births and deaths. 100% effectivity was made difficult by bad connectivity to data in deep rural areas. To solve
the problem, the DHA was looking at the possibility of picking up any strong network in the area, rather than only the MTN network (as currently). SITA system downtime was also an issue – SITA had developed a plan to redesign the network which had infrastructure and transmission deficiencies.
The report on the Repatriation Centre investigation related to the escape of detainees held at the Lindela Repatriation Centre on the 2nd of May 2020. The 9 security guards were charged with aiding and abetting this escape, but this charge was subsequently withdrawn by SAPS. The operating company dismissed the security guards due to an internal investigation. The tender for a facility management
company was advertised on the 10th of July. The evaluation period was targeted for completion on the 30th September 2020 to allow for a transitional period.
The report on the extension of the VFS contract: the DHA had met with VFS global to inform them of the intention to extend the contract and to discuss the way forward. VFS was consulting with its management and board to review the terms of the contract. VFS and DHA would respectively work on an addendum to the contract to set the conditions for the extension. It was expected the process would be completed on or before the 30th September 2020, in compliance with the contract conditions.
On the plans regarding Cape Town refugees involved the refugees that took up residence in the Methodist Church in Greenmarket Square, cases were still being processed by the Refugee Appeals Authority. Hearings could not be conducted due to the lockdown. Prior to the Covid-19 outbreak, it had been agreed that the reintegration process would start immediately after the process had been
concluded. Resources were offered by the City of Cape Town but none of the refugees took the offer. The risk of the spread of the coronavirus resulted in the establishment of a temporary shelter by the City in collaboration with the Department of Public Works in Belville and Wingfield. These shelters were established to provide shelter to destitute South Africans and refugees living on the streets of Cape Town. These shelters were intended to be integration centres after the lockdown, keeping
in mind the Committee’s decision that integration was the only solution to the issue, failing which deportation would have to be considered. However, this process could not happen during lockdown.
The other matter related to the progress of asylum-seeking facilities to be set up in the provinces abutting South Africa’s northern borders, especially in Mpumalanga. The framework had been submitted to National Treasury, but it emerged the DHA did not have funds in its baseline to build such a facility. The financial stresses caused by Covid-19 required this matter to be placed in abeyance.
The other issue was the roadmap for the Border Management Authority and the appointment of commissioners. The BMA roadmap was in place. The 15-year roadmap was being implemented in an incremental manner over 6 phases. The immediate focus (until 2022) was focused on the first 3 phases, including pre-establishment, planning and the initial rollout of the authority. R109.5m had been allocated to this task. The MTSF targeted the rollout of the BMA to 18 ports of entry and 5 segments of the land border. The BMA Act had to be brought into operation to allow the appointment of commissioners. The Minister had signed the BMA Commencement Proclamation to this effect – the target date for the operationalisation of the BMA Act was the 15th September 2020, contingent on the
President’s assent. Once all recruitment processes had been finalised, relevant documents would be submitted to the Minister and President for consideration.
As at the 31st July 2020, the DHA employed 16% youth in its staff. 1.8% of the DHA staff had a disability, out of a norm of 2%. Women made up 46% of senior management at the DHA. The DHA was committed to employing more women, youth and people with disabilities in the Department.
The DHA currently occupied 212 state-owned offices, and rented 230 privately owned properties.
The Chairperson thanked the DG but noted that the report had not been circulated to members.
Mr J McGluwa (DA) echoed the Chairperson’s sentiment that the Committee should not deal with documents that had not been circulated. He wanted to discuss the PPE procurement issue, noting the Minister of Finance’s statement that trust had been broken. He appreciated the Minister’s input, but found it bizarre that there would be a parallel structure investigating the same issue. He wanted to know from the DHA where there had been discrepancies, what had been done and what would be done in future. He requested a list of the deep-cleaning events and their prices. He wanted to know whether any cases had been reported to the SIU.
Mr Roos asked what “three-month cleaning services” contracted by the DHA were and what they entailed. On the 28th of April, the Committee was told that R1m would be allocated to each port of entry, Mr Roos requested clarity on this matter. He had a similar request for deep cleaning in Gauteng.
Ms Legwase asked whether all procurement related to PPEs been done in accordance with National Treasury instructions, and if not what had been done to rectify this. She asked whether PPE procurement took into account women, youth and people with disabilities.
Mr D Moela (ANC) echoed the input of other members.
Mr Chabane followed up on the issue of border posts and what the programmes put in place were, noting a serious Covid-19 crisis in Beitbridge. He requested an understanding of the response to this crisis. He asked the Deputy Minister for clarity on legacy cases that were not being properly addressed until ministerial intervention.
The Chairperson noted issues raised would likely have to be postponed to the following week.
Mr Njabulo Nzuza, Deputy Minister of Home Affairs, agreed that there were issues surrounding legacy cases that required ministerial intervention. Civics had instructed provinces to go to constituency offices to collect legacy cases and they would be dealt with. DHA was reviewing its case logs. Some cases became legacy cases as they had been left alone for some time.
The DHA approach on procurement, following Treasury processes, had allowed it to present its information in an open and transparent way. This allowed DHA to pass the test of public scrutiny.
Deep cleaning had been very important for the DHA, both when cases were confirmed and to ensure employees came back to sanitised offices.
The Minister noted the issues raised by Mr McGluwa, arguing that there was no problem in having parallel structures investigating PPE procurement. The ministerial team would be doing the same as the committee. The Minister added that the more eyes the better.
The Chairperson thanked the Minister and DHA, and noted the issues would be handled in the subsequent meeting.
The meeting was adjourned.
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- Electoral Act 1998
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- Municipal Demarcation Board presentation
- PPE procurement
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- Covid-19 Procurement
Bongo, Adv BT
Shaikh, Ms S
Bartlett, Ms M
Chabane, Mr MS
Legwase, Ms TI
McGluwa, Mr JJ
Michalakis, Mr G
Moela, Mr DL
Molekwa, Ms MA
Motsoaledi, Dr PA
Mthethwa, Mr EM
Nzuza, Mr NB
Roos, Mr AC
Sileku, Mr IM
Tito, Ms LF
Visser, Ms C
Zandamela, Mr S
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