Electoral Laws Amendment Bill: legal opinion on inclusion of essential service; DHA Revised Annual Performance Plan; with Minister

Home Affairs

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

Video: https://www.youtube.com/watch?v=WCCZn2Ry-lY

In a virtual meeting, the Committee was briefed by Parliament’s legal advisors on the proposed amendments to the Electoral Act of 1998, and the Local Government Municipal Electoral Act of 2000. The Department of Home Affairs also presented its revised annual performance plan.

The Committee agreed with the recommendation that the amendments should be subjected to a proper consultation process before any decision was made. Members noted that the definition of what an essential service was in the Labour Relations Act (LRA) did not include the Independent Electoral Commission (IEC), and concurred that an amendment in the legislation was needed to protect the South African election process. They recommended that the policy needed to be made clear, as some Members where of the belief that the right to vote needed to be prioritised.

After the Department of Home Affairs (DHA) had taken the Committee through the revised annual performance plan for 2020/21, it was questioned about the impact of future budget cuts on its ability to provide adequate service levels. Members blamed delays in responding to queries about applications on the lack of an adequate tracking system within Home Affairs. They also commented that its information technology (IT) systems were down more frequently, and wanted to know whether its issues with the State Information Technology Agency were being resolved.

Meeting report

Adv B Bongo (ANC) explained that he had been requested to present at the Section 25 public hearings on the matter of land expropriation and compensation in Limpopo. As such, he called upon Mr M Chabane (ANC) to stand in as the acting Chairperson for the Committee meeting.

The Chairperson greeted all Members, the Minister and officials, and referred to the agenda for the meeting. The Committee would first deal with the opinions from the state law adviser, and then the Parliamentary legal advisor. Following this, the Minister would present the revised annual performance plan (APP).

Legal opinion on inclusion of essential service management by IEC in electoral laws

Ms Lisa Naidoo, Senior State Law Advisor, said that the Office of the Chief State Law Advisor had to provide an opinion on the inclusion of essential service management by the Independent Electoral Commission (IEC) in the Electoral Laws Amendment Act for the purpose of Cabinet approval. Once approval was obtained, a certification opinion was provided for the purpose of introduction into Parliament. She said that in the opinion, they would provide a clause-by-clause analysis and ensure that every provision was constitutionally sound before it was presented to the Cabinet and Members. Additionally, advice was provided on the correct procedure to be followed, being the consultation procedure. Departments were provided with detailed advice and referred to the relevant cases that have taken place in the Constitutional Court. Advice was also given regarding the referral to the House of Traditional Leaders and the tagging of the Bill.

With regard to the new amendments proposed by the IEC, she said it was not included in the current version presented before Parliament, nor in the version presented before Cabinet. Therefore, the provisions recommended by the IEC had not undergone the necessary consultation process. Referring to paragraph 3 on page two, the legal question was whether the legislative process would be constitutionally sound if the proposed amendments were incorporated at this stage into the current version of the Bill.

She said she had discussed the importance of public consultations, and referred to two or more case authorities, such as Matatiele Municipality vs The President and the Merafong Demarcation Forum, which both went before the Constitutional Court. Accordingly, when assessing the legal nature of these cases, the courts highlighted the importance of public consultation, so it was crucial to ensure that the legislative process was constitutionally sound and mandatory.

In the scenario where amendments were introduced after the Bills had been published, she referred Members to the 2008 case of the South African Veterinarian Association vs the Speaker. The Portfolio Committee had made the decision to add one word – veterinarian -- into the proposed Bill, with no consultation. The Bill had been passed and sent to the Select Committee, which then published it for comments for a period of two days. However, when it was presented to the Constitutional Court, they stated that it was not proper consultation, and that the Portfolio Committee had approved the amendment without obtaining the requisite permission from the National Assembly or public involvement. Thus, it was the above actions that were ruled as constitutionally invalid 

Therefore, if the IEC amendments were allowed, without going into detail or without proper consultation, they would be considered as invalid and the process would have to start again. At the previous meeting, the Minister had highlighted the importance of the Bill and ensuring that it was completed before the elections in 2021.

She raised a second concern regarding the actual amendments and the provisions in the current Act. Section 112 of the Electoral Act, 1998 (Act No. 73 of 1998) provided for the “Prohibition on certain strikes and lockouts.” The service provided by the IEC was an essential service for the purpose of the Labour Relations Act,1995 (Act 66 of 1995).  Section 86 of the Local Government: Municipal Electoral Act, 200 (Act 27 of 2000) provided for the “Prohibition on certain strikes and lockouts.” The service provided by the Commission from the date the notice calling an election was published to the date the result of the election was declared, was an essential service for the purpose of the Labour Relations Act (LRA), 1995 (Act 66 of 1995).

Currently, with the Electoral Act and the Government Municipal Act under section 112 and 86, it was clear they had one aspect in common -- that the work done by the IEC was an essential service by way of statutory requirement. However, the difference with these provisions was that section 112 was a blanket, meaning that the work of the Commission was an essential service with no time period, whereas section 86 stipulated a specific time frame.

(Please see paragraph 12 on page 6, where a list of amendments is available).

Upon conducting an analysis of the clauses mentioned in the documents, the current law stated that the work of the Commission was an essential service, whilst the other mentioned that this was only for a period of time. She commented that their view on the matter was that the proposed amendments had become a policy shift, as it removed the essential service and had a blanket approach to strikes and lockouts within the respective time periods. The Constitution protects the right to strike under Section 23 (2)(b) -- as discussed in paragraph 16 on page 6 -- and the case mentioned was that of Eskom vs National Mineworkers and Others.

The importance of this case was that it highlighted the Labour Relations Act (LRA) as being a comprehensive regulatory mechanism to determine an essential service. It went so far as having an essential service committee, which had a specialist who determined what service was essential. Additionally, the LRA under Section 65 provides the limitation on the right to strike or lockout. As such, no person may take part in a strike or lockout or in any conduct in contemplation of a further strike, if that person was bound by a collective agreement that prohibited a strike or lockout in respect of the issue on dispute. That person was bound by an agreement that required the issue in dispute to be referred to arbitration or to the Labour Court in terms of this Act (refer to page 8 footnotes for details).

In terms of the case law and the current LRA, it was clear that there could not be a blanket approach to no strikes or lockouts, and then specify a time period of this. She recommended a policy shift which must be taken back to the first issue discussed, of proper consultation. In the case of a policy shift, consulting with key stakeholders was essential. She advised that the IEC undertake a parallel process of consultation and review the policy. Furthermore, she stressed the importance of the Bill to the Committee, and that it needed to be prioritised prior to the next elections, and advised the Committee to proceed with its deliberation on the current version of the Bill whilst the parallel process commences. (See document for further details).

Opinion on IEC’S proposed amendments to electoral laws

Ms Sueanne Isaac, Legal Advisor, Parliament’s Constitutional and Legal Services Office, explained that the Office had been requested to consider the proposals made by the IEC at the previous meeting.

The Electoral Laws Amendment Bill was introduced on 23 September 2020 and published for public comment around 11 October. As mentioned previously, the proposal did not appear before Cabinet, nor the Office of the Chief State Legal Advisor. Thus, it was evident that no consultation with stakeholders took place. Regarding the Parliamentary process when the Bill as advertised, the proposal was not part of that process, meaning that the public would not have had an opportunity to comment at this stage.

The opinion sets out the proposed amendments, and as it stands, the IEC is considered as an essential service in both the Electoral Act and the Municipal Electoral Act. However, it is on two different terms and the proposal is that a new clause be introduced which specifically states that strikes and lockouts are prohibited with regard to the IEC for a period of time. These time frames relate to the registration and election periods.

Referring to paragraph 20 on page 8, on the analysis of law, she said that currently the provisions in both Acts were not consistent with each other. Secondly, the IEC had highlighted in its memorandum that there was an issue with the definition of essential services. Accordingly, the definition provided in Section 200 of the LRA was difficult to apply to the IEC. Their point was that they provided a unique service different to existing essential services mentioned in the Act, and were of the view that there was a need for a specific amendment that prohibited strikes and lockouts for the IEC.

In paragraph 23 of the opinion, she noted that the LRA applied to everyone except the National Defence Force and the State Security Agency. The reason for passing the LRA had been to create a uniform system of labour law. In the LRA, a section existed which deals with the conflict between laws, such as in Section 210 (Please see document). She explained that the LRA was the prevailing legislation on labour matters, especially with regard to strikes and lockouts. If the IEC’s proposal was accepted, it meant that two pieces of legislation would be amended and a different framework would be provided to deal with the IEC outside the current LRA framework, so this could lead to a conflict between the LRA and the IEC dispensation.

Their advice was that Parliament should avoid creating conflicts of law, and that the LRA was reluctant to create one system -- to create a second would inevitably invite conflict.

Regarding paragraph 27, she said that the Constitution protected the right to strike, which could be limited by Section 36. Accordingly, the LRA protected the right to strike but also limited it, as seen in Section 65. Currently the IEC was classified as an essential service, but they proposed that they no longer be considered as such, and that strikes and lockouts be prohibited separately. The concern was that employees of the IEC had existing rights in terms of the LRA, and this proposal would limit their rights and create constitutional issues where employees may challenge it.

Referring to paragraph 29 concerning amending the LRA, she said that the question arose as to why the IEC could not request an amendment to the LRA. The IEC had stated in its memorandum that it was concerned that going through the process would cause delays. This point had been acknowledged, but she reminded the Committee that Parliament had passed the National Economic Development and Labour Council (NEDLAC) Act to ensure widescale consultation with stakeholders. The accepted view was that the current issue did create a policy shift in existing labour law, and it had not been presented before Cabinet or gone through the proper consultation process. Although Parliament had the constitutional power to legislate, in the present circumstances it was best for this matter to go through other forums to create a better consensus.

Concerning the current challenges faced in the labour court due to this matter, as seen in paragraph 32, she explained that the Committee had been made aware that this issue was at the labour court, and that there was a dispute as to whether the minimum service agreement should be accepted. She recommended that the Committee remain cautious, as it involved two parties who had the right to settle their challenge in court. It may be premature to accept an amendment when it could be dealt with by the courts.

If the Committee was of the view that it should proceed with the IEC’s proposal, the Committee was required to seek the permission of the National Assembly (NA) before it proceeds with finalising the amendment. The IEC’s proposed amendment sought to amend other sections of legislation currently not under consideration, and the proposal also changed the subject matter of the Bill.

(See document for more detail)


Mr J McGluwa (DA) raised his concerns over certain points mentioned in the presentation such as the court cases, and the notion that they should not have conflicts of law. He sought clarity on the latter issue and asked if there was anything presented by the IEC that had conflicts of law. Furthermore, he supported waiting for the review of the cases mentioned, before the Committee or Parliament made any informed decisions towards how best to structure it.

Mr A Roos (DA) expressed his appreciation of the quality of the opinions presented, as they were easy to read and understand, even for a lay person. Upon his first read through of the documents, he had noticed that one would need an LRA amendment to ensure that it was watertight. The definition for what an essential service was in the LRA did not include the IEC elections, so an amendment to the legislation was needed to protect South African elections. Additionally, he supported looking at consultations in line with policy development. He also commented that part of the conflict was the two rights -- the right to franchise, and the right to cast a vote or register without the fear or threat of strikes. He said there was a legitimate right for workers to have adequate processes in place allowing them to collectively bargain and strike if their basic rights were ignored.

Despite being in agreement with the proposal for a consultation process, he argued for clarity to be provided on the position of the policy, as certain sections of the legislation protected union activity whilst others protected the people. He was of the belief that the right to vote should be prioritised.

Ms T Legwase (ANC) welcomed the presentations as they were as well the recommendations, especially those voiced by Ms Naidoo, stating that there should be continuous consultations and discussions regarding the matter.

Ms L Tito (EFF) agreed that there needed to be proper consultation prior to moving forward.

Ms M Molekwa (ANC) agreed with the previous speakers and accepted the presentations with the recommendations.

The Chairperson welcomed Ms Janet Love, Deputy Chairperson, IEC, to comment on the presentation.

IEC’s comments

Ms Love commented that there were two kinds of issues being raised by Members. The one was on procedure, and the other was on issues of law. With regard to the latter, the Essential Service Committee of the Commission for Conciliation, Mediation and Arbitration (CCMA) had ruled in favour of the IEC, and it was likely to go to further legal procedures where they would deal with all matters of law.

It was important to emphasise that the matters presented to the Committee were an attempt to establish a level of harmonisation between their own pieces of legislation, such as the Electoral Act and the registration which prevails in relation to the local government elections. However, from a procedural perspective the Committee had heard and clarified how they would like to proceed, which she accepted. She therefore expressed her appreciation towards their understanding of the urgency regarding the Amendment Act. Furthermore, Members clearly understood the importance of protecting the franchise ability for elections to take place, which would surely be a subject of discussion to come.

Mr Sy Mamabolo, Chief Electoral Officer, IEC, said that there was no issue with the procedural concerns raised. On the substance of the law, it was noted that these matters would be dealt with imminently at the labour court.

Ms Isaac clarified that there was an existing labour law which dealt with strikes, and said there needed to be harmony between what the IEC wanted in terms with this Act, and she agreed with Mr Roos regarding the LRA amendment. On the matter of the right to strike versus the right to citizens, she explained that the opinion was not to say either one was better than the other, but rather that it should go through a consultation process to ensure that a balance was met with all stakeholders in order to protect all rights within the limits of the constitution.

DHA Strategic Plan and Annual Performance Plan target review

Mr Jackson McKay, Acting Director-General, Department of Home Affairs, took the Committee through the presentation on the revised annual performance plan (APP). There were 28 targets collectively, of which five were left unchanged, 19 were changed and four new targets were added. These were two policy discussion papers on international migration and refugee protection, and two policy discussion papers on citizens and civil registration. Lastly, two targets were discontinued or relegated to a lower level.

Regarding the strategic plan (SP), there were 16 targets collectively, of which 14 remained unchanged, and two were changed. These included a change to the number of enabling documents to be issued over five years for civic services,  and a change to the five-year target dealing with the Population Register Act, which would be incorporated into the Civil Registration and Citizenship Act. No new targets had been added, and none had been discontinued or relegated to a lower level.


Mr Roos noted the economically challenging context in which the APP report was created, and expressed concern over the issue of future budget cuts. It was essential for Home Affairs to safeguard themselves and create awareness on the pressure of the fiscus. He recommended that the Department look at performance measurement in detail so that when these cuts took place, they were able to provide evidence to support the notion that all the individuals in the organisation were absolutely necessary.

Secondly, regarding the tracking of applications and a lack of response from the Department, he said he believed that the officials were trying, but it illustrated that there was no adequate tracking system within Home Affairs. He asked if a tracking system existed whereby, when an application came in, a reference number was given which could be used by employees to find out and track how far along an application was within the process. Additionally, this would allow for fewer citizens having to come in to the Home Affairs offices and wait in the infamous “war on queues.”

Regarding revenue, he commented that the information technology (IT) systems were down more frequently, and thus sought clarity on the timeline of the State Information Technology Agency (SITA) issue, and when an expected resolution would take place. Furthermore, on the issue of the visa system, he sought clarity on the status of the Central Adjudication Hub, as well as the plan from an APP perspective, in getting these pilot programmes up and running again.

Lastly, he commended the issuing of passports within 13 days, saying it was a great improvement from the past. However, overseas the issue seemed to be going backwards and it was taking longer. The finance service had been mentioned, and he wanted too know if there was a plan to implement this same courier service with foreign missions so that the applications were not sitting at the diplomatic offices to ensure that they could speed up the passport process.

Ms Tito asked if any consequence management plans were in place in line with the Public Finance Management Act (PFMA), to deal with the breaches of supply chain regulations, corruption and the fruitless expenditure of funds during the lockdown period. Furthermore, regarding refugees and asylum seekers, she commented that she had asked the Minister at a previous meeting what paper work, if any, had been done in order to ensure that they were receiving the social relief grant.

Ms A Khanyile (DA) queried how the adjudication work for immigration visas and permits would be done remotely going forward, and if there were plans in place to digitise these applications to mitigate delays in this process.

The Chairperson said that due to the challenges faced, not only would the DG have to work at a faster pace, but the Committee would need to exert more oversight on the issues recognised as new targets. Concerning the monitoring of issues, it was clear that attention had to be paid on the implementation of the issues raised.

The discussion papers on the Ministers desk awaiting approval, as well as bringing Bills late to the Committee, were two of the many factors which contributed to weakening the system. They would therefore focus on implementing a timeframe for these processes in order to eliminate delays. Accordingly, he also argued for a timeframe to be implemented on the issue of the port borders in order to conclude the matter, and make note of arising challenges.

The Committee acknowledged the difficulties associated with the budget cuts, as they greatly influenced the targets presented. If the Department was to achieve these targets, they needed to focus on the allocation of the budget.

The matter of SITA had been sitting on the Committee’s table since last year when they had been dismissed, as the report presented had provided no support or clarity on their operations. Members had agreed that they were contributing negatively to the service of the Department, and it was because of them that the Department was facing its current challenges. 

Department’s responses

Mr McKay thanked Mr Roos for his comments, and said the Department would consider the proposal for time management studies, as it would be of great assistance.

Concerning the plans in place for staff involvement in procurement irregularities, he explained that they were being dealt with through consequence management as the Department came across the cases. The DHA was committed to fighting corruption, as could be seen in the number of arrests made during the past financial years, as well as this financial year. Cases involving fraud and corruption had been highlighted and identified, and this would continue to be done in order to deal with the scourge of corruption.

He asked if Ms Khanyile could submit her question in writing to the Department, as she had been inaudible.

Mr Thulani Mavuso, Acting Deputy Director- General: Information Services, DHA, responded on the SITA issue. He said that previously the Department had presented the challenges faced in relation to SITA to the Committee, and stated its willingness to end the relationship which had resulted in a negative outcome. SITA had returned to the Department to continue their work, expressing their commitment and eagerness to resolve the issues at hand.

A proposal had been presented on network issues which had been sent to Eskom, but it had been returned due to the timelines being too long. There were situations where service providers were needed for cabling in offices, and which took SITA an extensive amount of time to ensure its procurement. A meeting had taken place the previous day in an attempt to ensure that the issues pertaining to SITA were dealt with so that service was provided at a much faster pace.

Regarding the network in the offices, there were continuous challenges due to infrastructure matters, as SITA was still using copper cables which were frequently stolen, instead of fibre. There were certain links being utilised when this happened, such as a microwave link, but this was not covered in all areas.

Regarding mobile connectivity, he said the Department was exploring a new satellite solution, where mobile tracks would be connected in offices using satellite links instead of the current MTN network. If the immobile tracks moved away from where the towers were located, network availability became an issue. As such, testing of the satellite links was currently under way, and an update would be provided once the final results were received.

The contact centre was currently operating at 50%, with 96 contact agents. When the centre was first designed it had included 126 agents, but the Department had managed to fill only 100 of these positions, with four agents lost through resignations. Under the national lockdown, the centre had 48 officials working the full block. Negations with the union were under way due to the concerns raised when the Department wanted to begin operating at 75% capacity, as the public expressed their difficulties when attempting to get in touch with an agent. There was also an email address available for the public to submit their queries, which were responded to by an agent as they were received. During levels 4 and 3 of the lockdown, the agents were mostly dealing with emails, as staff members could not take calls due to the threat of contracting the virus.

Responding to the tracking of requests, he said that each time a query was logged there was a mechanism which traced how far along in the process it was, and this was then relayed to citizens. Particularly with regard to civic matters, on the immigration site there were issues with the visa application system, as tracking was not included in the design. Instead its function was focused on allowing adjudication by the team in the permitting section. However, the Department was working on ensuring that agents from the contact centre and the staff were granted access to this process in order to respond to the increasing number of queries on the status of permanent residence permits.

Lastly, he said that the Department was continuing to work with SITA due to legal obligations, as there were mandatory services that they could not source from a different supplier, otherwise according to the contract they would be seen as non-compliant.

Mr Thomas Sigama, Deputy Director General: Civic Services, DHA, said the Department was not experiencing any issues with clients who were living within the country, and they were able to issue passports within 13 working days. However, a task team had been developed to assist those living abroad, between Home Affairs and the Department of International Relations and Cooperation, to review the entire process and to highlight all the challenges.

Furthermore, on the issue raised by Mr Roos on moving backwards, he said that they had decided to divide it into two groups, such as a work flow process for those in Africa and another for countries outside Africa. In the meantime, a programme had been devised which included immediate requests signed off by Admissions Support, allowing those to return home as soon as possible. Citizens were able to send through their applications to the specific email address available, which was then directed to the DHA in order for them to issue the Immediate Travel Certificate. The medium to long term process was being assessed to assist in shortening the period, and to find service providers who could aid them in removing the diplomatic ban.

Dr Aaron Motsoaledi, Minister of Home Affairs, referred to the issue of inquiries, and commented that during that week, the DHA had released the contact details for each service on their website. When there were delays in receiving a response to questions, the contact details made it easy to identify who was responsible. He encouraged Members to utilise the website in future and provide feedback on whether improvements were needed.

Referring to the case involving the social relief of distress, where the Department of Social Development had been taken to court by the Scalabrini Centre, the case specifically mentioned the individuals who qualified for social relief, which included permanent residence holders. He explained that refugees hold a Section 24 permit, while asylum seekers hold a Section 23 permit, and these should not be confused. By the time of the court case, all of the above, as well as those who hold special permits, had already been provided with documentation.

The Chairperson asked if an update could be provided on the Lindela court case.

Mr McKay said that the Department had procured the Lindela premises through the Department of Public Works and Infrastructure (DPWI) earlier in the year. Following this, it had begun the process via an open tender of procuring a service provider who would supply security services, as well as care services, for the detainees and those being repatriated. However, a few months ago they had received the news that the sale of the premises was being challenged by the family of the former owner, so the court had ordered the suspension of the sale. Accordingly, the only way forward was to continue with the process of procuring a service provider and continuing negotiations with the new owner in order to utilise the property until resolved by the liquidator.

The meeting was adjourned.

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