Draft BRRR: Content Advisor briefing; Electoral Laws Amendments Bill: IEC briefing; with Minister and Deputy Minister

Home Affairs

09 October 2020
Chairperson: Acting: M Chabane (ANC)
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Meeting Summary

2020 BRRRs

The Portfolio Committee on Home Affairs (the Committee) convened for a briefing by the Independent Electoral Commission (IEC) on the Electoral Laws Amendment Bill in a virtual meeting. This as the country prepares for the 2021 local government elections.

The Content Advisor briefed the Committee on its Draft Budgetary Review and Recommendation Report (BRRR).

The issue of double voting concerned Members as it has the potential to jeopardise the integrity of the electoral process. The proposed amendment introduced a pre-notification process which allows electoral officials adequate time to confirm the correct voting district, of voters without addresses, prior to election day.

Another area of concern was omission from the Bill of an amendment relating to the right to strike on election day. Discussions revealed a lack of consultation with key stakeholders on the matter. From the perspective of the IEC, it was an administrative matter which did not require consultations. The provisional legal opinion was the matter might not have constitutional muster without a proper consultation process. The matter will be further deliberated.

The delay in the implementation of the electronic voting system hampered the IEC in its endeavours to improve the integrity and efficiency of electoral processes. Budget cuts by National Treasury halted the pilot project the IEC intended to introduce before the 2021 local government elections.

The Committee was asked to expedite the process of adopting the Amendment Bill, for it to be adopted in time for the 2021 local government elections.

Meeting report

Nomination of acting Chairperson
The Committee Secretary said the Chairperson was not present and asked for nominations to elect the Acting Chairperson. Mr M Chabane (ANC) accepted the nomination of Acting Chairperson.

The Acting Chairperson thanked Minister Aaron Motsoaledi, and Deputy Minister, Njabulo Nzuza, for accompanying the Independent Electoral Commission (IEC) to this important session. He welcomed the Chairperson of the IEC, Mr Glen Mashinini, all Commissioners, and the executive of the IEC. He acknowledged the presence of the parliamentary legal team, officials from the Department of Home Affairs (DHA) and all staff members.

The Acting Chairperson said the Minister asked the Committee the previous week, to reschedule the Constitutional Court briefing until after Cabinet had an update on the process. The Minister was present to accompany the IEC. There was no other expectation on the Minister to make a presentation.

The opportunity to listen to the topic of the Constitutional Court ruling will arrive next week. The briefing by the IEC came shortly after the court ruled on electoral reforms. The Acting Chairperson invited the Chairperson of the IEC to introduce the presentation.

Advocate B Bongo (ANC) was on sick leave, and Mr J McGluwa (DA) was attending another meeting.

Minister Opening remarks
The Minister confirmed he was accompanying the IEC, and reminded the Committee all IEC laws must go through the DHA. He said the Draft Amendment Bill was concluded before the Constitutional Court ruling. Therefore it was not affected by the ruling. He was satisfied the IEC was starting the journey of the Amendment Bill, and advised it must be finalised before next years’ elections. He cautioned the Committee to hit the ground running as time was limited.

The Minister referred to squabbles such as double voting, which arose during last years’ elections. He invited Members to pay special attention to amendments, to ascertain if it resolves the matter. The Bill also introduced proposals on how to deal with the issue of voters without addresses. The Bill was important in regulating elections to make it free and fair for the people.

Mr Mashinini (IEC) welcomed the Ministers, fellow Commissioners, members of the media and public, watching the proceedings. He conveyed warm greetings to Members of the Committee and best wishes to Adv Bongo. He noted his gratitude to the Committee for the opportunity to brief the Committee on the Amendment Bill. The IEC was indebted to the Ministry for its cooperation, and he thanked the Home Affairs legal team for its support in drafting the Bill. He was grateful to the State Law Attorney and the team from the administration led by Mr Sy Mamabolo.

The Chairperson said section five of the Act allows for continuous review. Therefore the IEC periodically conducts a review to ensure the legislative framework was up to date, and to close any previous identified loopholes. The amendments were of a technical nature and contain no new policies. Important enhancements were made to ensure next years’ local government elections were free and fair. The Bill did not deal with the recent Constitutional Court ruling. Parliament was dealing with the matter of independent candidates in a separate process. The IEC also engaged with the regulator regarding the Protection of Personal Information (POPI) Act. The Bill proposes measures to ensure protection of voters’ information. He thanked the Committee for expediting this amendment.

Presentation by IEC
Mr Sy Mamabolo, Chief Electoral Officer (CEO), IEC, delivered the presentation on the Electoral Laws Amendment Bill [B2–2020].

In preparation for next year’s local government elections, three pieces of existing legislation, namely the Electoral Commission Act, the Electoral Act, and the Local Government: Municipal Electoral Act, were being amended with this Bill. The goal was to ameliorate technical glitches which continued to arise during elections, and to align the processes so the experience was not viewed according to two sets of elections.

Electoral Commission Act
The amendments aim to insert new definitions and to amend provisions for registration of parties on national, provincial, and metropolitan, or district, municipality levels.

Electoral Act
Changes to provisions which relate to special votes, intended to accommodate voters inside the country, and abroad.

Local Government: Municipal Electoral Act
The purpose of the amendments was to insert and delete definitions for consistency.

Clause-by-clause analysis: Electoral Commission Act
Clause 1– was amended to bring consistency in definitions across district, local, and local municipality levels.
Clause 2 – the Exchequer Act of 1975 was still relevant in 1996, but had since been superseded by the Public Finance Management Act of 1999.
Clause 3 – opened up the space for provincial-based and district-based parties to register nationally. The amendment also proposed a limitation on classes of people who could raise an appeal. Appeals would be limited to parties who initially raised objections.
Clause 4– section 15A of the Act was made superfluous by clause three.
Clause 5 – was impacted by the deletion of clause three.
Clause 6 – was impacted by the deletion of clause three.

Clause-by-clause analysis: Electoral Act
Clause 7 – was inserted to amend the definition of voting day.
Clause 8 – was revised to protect the information of voters by redacting the identity number which appeared on the voters’ roll. This revision was a consequence of consultations with the Information Regulator.
Clause 9– was critical to retaining the integrity of the electoral process. The provision was used as a springboard for double voting. The new proposal provided for pre-notification, in circumstances where a voter was going to vote in a different voting district from the one the voter was registered in.
Clause 10 – proposed parties hold the notice of acceptance of nominations on file, until it was requested. The requirement to submit the notice was no longer a requirement as the nomination process was mainly completed online.
Clause 11 – was consequential to provisions in clause 10
Clause 12– was consequential to provisions in clause 10 according to section 27
Clause 13 – regulated the special vote for national elections according to section 33. A voter is required to notify the CEO in advance of the intention to vote in another jurisdiction, and would be entitled to cast the ballot at the Embassy or Consulate on election day. This meant the twin process of notification was eliminated.
Clause 14– provided for authorisation to prescribe a different voting method, for example, in case of a pilot to test the modality of voting.
Clause 15 – the proposal aimed to remove the count form relating to the ballots received, used, disputed, and to deal with it in the regulations.
Clause 16 – the revision provided for clarity on the lifespan of the Electoral Code, meaning, it is applicable on the date on which the election was called, and expired on the date results are declared.
Clause 17 – the revision aimed to amend the size of representation in the National Assembly by taking demographic distribution into account.

Clause-by-clause analysis: Local Government: Municipal Electoral Act
Clause 18 – was aimed at deleting the obsolete definition of district management area.
Clause 19 – removed the twin process of submitting a notice of acceptance of nomination.
Clause 20 – it dispensed with the requirement to submit a notice of acceptance of nomination.
Clause 21 – prescribed a different voting procedure for voters without addresses in line with the Constitutional Court ruling. Voters did not lose the vote but were required to provide additional information to confirm residence.
Clause 22 – sought to remove all references to a party list in terms of section 84.
Clause 23 – aimed at clarifying applicability of the Electoral Code.
Clause 24 – dealt with the title and commencement of the Act.

The CEO reported the number of voters with complete addresses on the voters’ role increased from 8.6 million in 2016, to over 24 million to date. The number of people without addresses was reduced to 1.2 million. 

Mr M Tshwaku (EFF) was concerned about voters who were not registering at voting districts of residence. He sought clarity on how the process would be controlled considering reported incidents of double voting. He asked if political parties would be given a list to monitor the registration of such voters. He asked why the Zip-Zap machines were not made functional, and why the registration process was not made to function electronically.

Ms M Molekwa (ANC) commended the IEC for making the vote accessible to everyone. However, poor people in rural areas do not have internet access. This prevents such voters from notifying the IEC in advance of the intention to vote in a different voting district from the one where registered at. At some point, people without addresses were allowed to vote in the municipal elections in the North West province. This resulted in the JB Marks court case. The IEC should investigate the matter to address it for future reference.

Ms L Tito (EFF) asked the IEC to make available the statistics on the number of people without addresses, per province, and per voting district.

Ms T Legwase (ANC) expected the IEC to have dealt with section 122 of the Electoral Act, as it was given to Members before the meeting started.

The Acting Chairperson asked if Ms Legwase was suggesting the IEC deal with it at this time.

Ms Legwase said she wanted the IEC to engage the Committee on the matter.

Ms A Khanyile (DA) wanted to know if the IEC had a system to prevent double voting. She asked what functionality the new voting machines would provide, and how it differed from the Zip-Zap machines. She wanted to know if the IEC was considering an electronic voting system to accommodate voters abroad, who need to travel long distances to voting stations on election day.

Mr A Roos (DA) asked if Cabinet was briefed on the Constitutional Court amendment regarding independent candidates, and if the IEC was going to request the Constitutional Court for an extension.

Ms L van der Merwe (IFP) welcomed the amendment on protection of information, and the proposal regarding the redaction of the identity number on the voters’ roll. She also appreciated the amendment to the requirements for the notice of acceptance of nomination process, as it was an administrative nightmare. She asked for clarification about the authorisation of a different voting method according to Clause 14 (fourteen). She also asked the IEC to expand on the cost of the proposal, and asked if it would be shelved until funds were available. She asked the IEC to explain the registration procedures for the 1.2 million voters, without addresses on the voters’ roll. She asked for an update on the faulty Zip-Zap machines, considering the Minister’s opening remarks about the 2021 local government elections.

Ms M Modise (ANC) appreciated the IEC’s work to provide free and fair elections. She welcomed the amendment about applications which must be made in advance, and not on the day of the elections, in cases where people want to vote at a different voting station from residence.

The Acting Chairperson thanked Members for contributions and asked the IEC to brief the Committee on the issue raised by Ms Legwase. The issue relates to essential services according to Section 122 (one hundred and twenty two) of the Electoral Act. He asked the parliamentary legal team to address the Amendment Bill issue since it was going to be advertised in the near future. He also asked if the IEC exhausted consultations with the National Economic Development and Labour Council (NEDLAC), as the amendment was critical in dealing with the right of workers to strike on election day. He invited the Chairperson and Chief Executive Officer (CEO) of the IEC to guide the responses to the questions raised by members.

The Chairperson asked the CEO to reply to Members’ questions and said the issue raised by Ms Legwase would be addressed separately.

Electoral Act
The CEO said a group of questions related to voting in an area which differed from the area of where voters were registered to vote. Currently, people could go to any voting station on election day, be given a form to complete, and be requested to provide proof of address to vote. When this amendment was initially introduced, it was intended for truck drivers who found themselves in different voting districts on election day. In recent elections it was used to shop for shorter queues, putting elections at great risk. The facility remains but will be applied related to pre-notification for voters who wish to exercise this option. The numbers would be made available to all political parties, for everyone to know how many people exercised this option.

In developing the new system, the IEC would be alive to the need of making it universally accessible. Data and IT resources would not be relevant and notifications via SMS would be considered. The new VMD machines would be used as an online voters’ roll during registration weekends. During elections, it would be used to scan if people voted elsewhere. The procurement process was at the stage of being assessed by the Bid Evaluation Committee in a meeting scheduled for 9 October 2020.

Municipal Electoral Act
The CEO said that the ward system never allowed people to vote in areas other than the areas where they were registered. There was therefore no equivalent provision as in the case of Section 24A of the Electoral Act. The vote took place in relation to the ward where a voter lived, to not influence the election results. The VMD machines would still be used to confirm whether voters attempted to vote elsewhere.

In response to the JB Marks case which occurred in 2016, the CEO said the aspiration was for everyone on the voters roll to have an address. However, given the nature of informal settlements, it was not possible even with the best resources at hand. The voters roll was currently 90% compliant, in relation to voters registered with an address. A person without an address does not lose the right to franchise, but needs to furnish the electoral officials with an explanation of the residence. The procedure to follow requires the voter to go to a voting station where the electoral official would ask for a description of the residence. On the basis of the description, the electoral official must decide if the residence was inside the particular ward. Voters would not be able to vote if the residence fell outside the ward. Section 47 (forty seven) of the Municipal Electoral Act mirrored Section 38(8) (thirty eight, eight) of the Electoral Act in securing franchise rights, while securing Constitutional Court provisions in determining the relationship between the ward and the voting area. The statistics of people without addresses were available to all parties and would be made available to the Committee.

On the status of the electronic voting system, the CEO said the IEC intends to work on a pilot project before next years’ election. However, under the current circumstances the project was unfunded due to budget cuts by National Treasury, but it remains a project on the IECs radar. As soon as resources become available the IEC would eagerly work to improve electoral processes to make it easier for voters, and to improve the integrity and efficiency in the way elections were undertaken.

The CEO said the Constitutional Court matter on independent candidates was remitted to Parliament. This was done to enact amendments it believes were optimal to redress the deficiency identified by the Constitutional Court. The IEC offered technical expertise. However, Parliament was the leading institution and the IEC was the supporting institution. The Executive had profound interest in the matter and needs to deal with the policy issues. The Minister could comment on the policy issues. The IEC was available to advise on the practicality of options considered. The option of requesting the Constitutional Court for an extension on the date did not arise.

The CEO said with the increasing use of online registration, it became superfluous to request the identity document of candidates for the notice of acceptance of nomination, as required according to section 17

The Chairperson of the IEC said the country did not have an electronic voting facility. Due to budgetary constraints, the IEC was not able to proceed with the planned pilot study on electronic voting.  He asked the Commissioner to address Section 122 (one hundred and twenty two) related to essential services.

Section 122 – Essential Services
Mr Mosotho Moepya, Commissioner, IEC, said the amendment to the Labour Relations Act (LRA) was a challenge. The two pieces of legislation already declared services provided by the IEC as essential services. However, the two provisions were not the same and did not operate in the same way. The IEC proposed an amendment regarding the period the essential services must be considered, to accord with the provisions of the LRA.

Bearing in mind, when some right listed in the Constitution is limited, there must be a good reason for the limitation and the limitation must be for a certain period. Section 122 (one hundred and twenty two) of the Electoral Act provides services were essential on any given day, which was not optimal. The opposite applied to Section 89 (eighty nine) of the Local Government Electoral Act. Services were called upon on the day the notice of elections was proclaimed. On the one hand, the period was too long and it was too short. It did not consider the timeframe within which preparations for elections must take place. The IEC proposed services be declared essential services for a period of six weeks before the notice of elections was proclaimed in an attempt to harmonise the two provisions. The reason for the proposal was to allow time to register voters, and for the proclamation to enforce the cut-off date for further registration. The IEC said the amendment accorded with the LRA and should not present difficulties.

The Chairperson of the IEC said this was an administrative matter which did not require further delay. He noted the question about consultations at NEDLAC level, but respectfully argued the IEC was only harmonising existing legislation to make it more practical.

The Acting Chairperson invited the Parliamentary Legal Advisor, to brief the Committee so Members would be able to interface with the matter when it came up for discussion.

The Legal Advisor said she discussed the matter with her colleague, and said, for any legislation to be constitutionally sound it must go through a constitutionally proper process. A Bill is first sent for Cabinet approval before it is submitted to the Office of Legal Services for certification.  This was to make sure each provision was aligned to the Constitution, and it was practically implementable. The Office of Legal Services only received the Bill the previous day. The detail was not vetted according to the substance, to see how it interlocks with constitutional provisions related to the right to strike as per Section 122

She spoke of constitutional provisions which need consideration. Firstly, the amendments were not contained in the Bill which was approved by Cabinet. Secondly, it was not contained in the Bill sent for public comment. She acknowledged the IEC comments, but said when amendments affect the right to strike, there must be consultations with key stakeholders such as NEDLAC, employees, and the unions. Even though it seems not to be substantial from the IEC perspective, it must go through the constitutional processes. It was her view and her colleague’s view, public consultations with key stakeholders were necessary. The current version of the Bill was constitutionally sound but once it went through all processes, there would be constitutional muster. The Bill might be challenged and thrown out if it were to pass without consultations with key stakeholders. She referred to the comment made by the Minister about the Bill being passed before the municipal elections, and said that court delays are unwanted. She said a more detailed opinion would be provided in the next meeting should the Committee require it.

The Acting Chairperson said the Committee needed clarity on the process from both sides. He asked for the matter to be grounded, and Members examined the Bill as it was already submitted for public comment. The submission of the IEC must be reconciled with the legal opinion.

The Acting Chairperson appreciated the work of the entire IEC staff complement in ensuring the election process was free and fair. He suggested the IEC expedite the pilot project to avoid challenges in the local government elections. He urged the IEC to do its best to mobilise society and to address challenges highlighted in this meeting. He invited the Chairperson of the IEC and the Minister to deliver closing remarks.

The Chairperson of the IEC appreciated the time and opportunity to present to the Committee and thanked the Ministry and officials for the indulgence.

The Minister said a number of questions relate to double voting. He said steps taken by the IEC were not necessarily limited to legislative changes. For example, the IEC was working with the Council for Scientific and Industrial Research (CSIR) on the issue of the ink used in the previous election. There was a good explanation on the Zip-Zap machines. Measures were reasonable enough to avoid double voting. He thanked the IEC, and was looking forward to the legislative process to be completed in time for the local government elections next year.

IEC officials were excused.

The Minister asked if the Department could also be excused.

Ms Janet Love, Vice-Chairperson, IEC, said the advice given by the Legal Advisor had the benefit of interaction with the legal team of the IEC. This would help to get an understanding of how it interacted with the existing pieces of legislation. She said this practice was something the Committee should consider for the future.

The Acting Chairperson said the Committee would be interactive as there was a need to be coherent on the matter of interaction with stakeholders. After releasing the Minister and his team, the Chairperson asked the Committee Secretary to advise him when all officials signed off, so the Committee could continue with the Budgetary Review and Recommendation Report (BRRR) briefing.

Briefing on the draft Budgetary Review and Recommendation Report
The Acting Chairperson invited Mr Adam Salmon, the Content Advisor, to deliver the draft BRRR. He asked the Content Advisor to explain why the report was submitted late the previous evening, as it did not allow Members enough time to go through the details of the draft. This made it difficult to comment on the report immediately. The matter of late submission of reports was previously raised. Once the draft was presented there would be comments on it, as Members expect to receive the report earlier.

Secondly, he wanted an indication of the timeframes, so the Committee could reconvene to make concrete input before adopting the report.

The Content Advisor said the report was submitted late, as he was unsure about the process, because of changes in the schedule. Another reason was the extension given to government departments to submit Annual Reports based on the Minister of Finance’s notice in the Government Gazette.

The Annual Report formed a substantial part of the BRRR. It had an impact on the preparation of the draft report. The BRRR was normally completed at the beginning of October, but departments were given two months extension until mid-November. The Draft Report was completed without input from the Annual Report, which complicated the process. He said the report had fewer pages than previous reports because the Annual Report was not available. The Revised Budgets and plans for the IEC and the DHA were not received. The expectation, according to the House Chair memorandum, was to discuss the draft report. The initial plan was for the draft report to be submitted on this day and for the final report to be adopted next week. This was so the report could be adopted prior to the Mid-term Budget Policy Statement (MTBPS).

Since the Annual Reports were not available and budget briefings were not held, the Committees were given extension to submit reports once the Annual Reports were tabled. The Ministry was informed through the House Chair to table the Annual Reports as soon as possible. Once the Annual Reports were provided a special meeting would be arranged, so it could be included in the budget reports. The Committee had until 17 November 2020 to submit the final report.

Overview of draft Budgetary Review and Recommendation Report
The Content Advisor provided a brief overview of the content of the BRRR.

Communication from the House Chair, Parliament and National Treasury, regarding the processes to revise budgets and Annual Performance plans were dealt with in the first part of the report. 

The responsibilities of the IEC and the Committee regarding work done, meetings held, legislative engagements, oversight trips, and constituency work, were outlined in the second part of the report.

An overview of the performance of the last five years and a progress update of the 2014–2019 period was presented in the report, followed by the new strategic outcomes for the 2020–2025 cycle. The reasons for targets met or not met were also reported.

The Content Advisor said most of the information came from prior reports already submitted to the Committee. Discussions and related recommendations were included in the final part of the report. The sections indicated in italics related to matters the Committee was not briefed on in the past. The report would be updated once the Annual Reports and briefings on the revised targets were received.

Budget and plans were not yet received from both the IEC and Government Printing Works (GPW). The report included the strategic targets as per budget vote reports. Revised targets and revised Annual Performance Plans (APP) still had to be provided to the Committee. The revised APP was not included according to the GPW budget, and plans. Provision would be made on the programme to have GPW presentations made available to the Committee.

The section 32 reports required departments to present quarterly reports according to the Public Finance Management Act (PMFA). As the current Annual Reports were not available, the reports of the last three quarters of the previous financial year were included in the draft report. The issues highlighted, related to performance, challenges, future plans, financial reports, and observations. The Draft Report also contained the first quarterly report of the current financial year, including observations and issues raised by Members during discussions held the previous week. The Content Advisor said the budget recommendations could not be made until the report of the Auditor General was examined to see if departments complied with audit requirements.

Other sources of information made available to the Committee, such as reports from State of the Nation Address, Sustainable Development Goals, and the African Union Agenda, were noted in the draft report.

Oversight visits, including a visit to GPW, the Office of Legal Services, and a joint oversight visit to the Beitbridge Border Fence, were recorded in the report. Reports of observations and recommendations related to oversight visits were also included.

Committee recommendations regarding the fifteen outstanding issues related to the previous financial year. This number was significantly higher compared to the usual five items of prior years. Circumstances related to Covid-19 gave rise to the increase in outstanding recommendations.  

Actual recommendations were extracted from reports. The proposed recommendations totalled 19 for DHA, four for IEC, and seven for GPW.

The Content Advisor said he would take guidance from the Acting Chairperson on how to deal with the recommendations from the Annual Report.

The Acting Chairperson said he would take guidance from Members on the process related to finalising the report. He asked when the report needed to be adopted.

The Content Advisor said the Committee had until 17 November 2020 to submit the final report which allowed sufficient time for comments.

The Acting Chairperson said Members use the draft report as a working document, and Members read the report and give input once the document was made available. He invited Members to respond to his proposal.

Mr Roos suggested provision be made for consideration of the report before the deadline of 17 November 2020.

Ms van der Merwe agreed Members utilise the time to scrutinise the report and make notes.

Ms Legwase agreed with the previous speakers and accepted the Chairperson’s proposal.

The Acting Chairperson noted some Members left the meeting without consent.

Regarding the House Chair memorandum, the Content Advisor said a week was allocated to finalise the report. He needed to make some minor changes and would resubmit the draft report to members.

The Acting Chairperson asked the Committee Secretary to schedule a meeting with the legal team so the Committee could fully comprehend the legal implications of what appears to be the IEC view, regarding existing legislation on the section 122 issue.

The Committee Secretary said the Committee would meet next week for a briefing by Mr M Lekota (COPE), on the participation and policy content of independent candidates as contained in his Private Member’s Bill. The Bill will be advertised in the Sunday Times of 11 November 2020, and in all other languages in other newspapers during the following week.  

The Acting Chairperson said the issue raised by the Committee Secretary was not discussed with the Management Committee (MANCO). He advised the Committee Secretary to engage the Chairperson of the Committee on how this matter will be handled.

Ms L Tito (EFF) replied to an earlier comment made by the Acting Chairperson, and said she did not leave the meeting, but had problems with her gadget. She concurred with the other Members on the process to finalise the BRRR.

The Acting Chairperson thanked the Members for participation in the meeting and said the Committee would get feedback on the two issues referred to the management committee (MANCO).

The meeting was adjourned.


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