Re-opening of South Africa’s borders: The Acting Commissioner of the Border Management Authority gave a briefing on readiness and the milestones to reopen the land ports of entry. Following the humanitarian and health crisis at the Beitbridge and Lebombo ports of entry and the Committee oversight visit, the Committee requested a detailed plan by the Department of Home Affairs (DHA) to ensure the reprehensible situation does not repeat itself.
The Acting BMA Commissioner said there is ongoing discussions between the Department of Health (DoH) and the DHA to finalise the health plan to support the re-opening of the borders. The following issues are currently under discussion: deployment of additional capacity to strengthen testing capacity at the ports of entry, re-organising of the antigen testing footprint and deployment of resources, diverting testing to a selected number of ports of entry with adequate capacity, increase in testing capacity at the borders by the inclusion of more private sector testing stations, implementation of a ticket system to manage queues at the border, and engagements with neighbouring countries to make testing more affordable to reduce backlog and workload at ports of entry. It is paramount that social distancing and compliance with COVID-19 protocols are implemented effectively at the border posts. The deployment of an adequate number of testing stations is a key priority for the DHA.
The Committee welcomed the plan but cautioned that these plans are useless if not adequately and fully implemented. The experience in January 2021 suggests that the same severe congestion will be experienced at the border Covid-19 testing stations due to limited capacity of the DoH and the Port Health. Members expressed concern that the implementation plan seems to be a short-term solution to the problems at the ports of entry. Given that the Easter holiday is approaching, there is a need for a more stringent and set plan to address the congestion challenges at the ports of entry. Proper plans need to be in place. Lebombo Port of Entry has been identified as a hot spot for illegal crossings into South Africa and this requires immediate intervention. What measures have been put in place to prevent illegal crossings? Members were heavily divided on their support of the briefing by Home Affairs. Those not in favour saw it as a mere tick-box exercise to justify DHA own failures.
Withdrawal of permits issued to foreign nationals: The Minister of Home Affairs explained that the Committee's decision to reverse the issuing of 1000 permits to foreign nationals to work at the Royal Bafokeng Platinum Mine created a dilemma as it had legal implications. A DHA official had issued these permits on days the DHA was closed without the knowledge of his superior. The Committee said that the issuing of these permits must be reversed and corruption must be eliminated and due process followed. Local South Africans should have been employed. The Committee appreciated the written correspondence from the Minister but said it does not excuse the fact that the DHA official was called while on leave to issue the permits. The Minister suggested the Committee call all the stakeholders to account to Parliament in a public hearing.
Electoral Act amendment: The Minister gave a progress update on the development of policy and legislation to amend the Electoral Act to allow independent candidates to participate in national and provincial elections. The Constitutional Court declared that the Electoral Act is unconstitutional to the extent that it requires that citizens may be elected to the National Assembly and Provincial Legislatures only through their membership of political parties. The declaration of invalidity is with effect from 11 June 2020 court order but its operation is suspended for 24 months to grant Parliament an opportunity to remedy the defect identified. Parliament must take a giant leap and produce a new electoral system as suggested by paragraph 15 of the Constitutional Court ruling.
DHA had studied different electoral systems and identified various statutes that must be consequently amended. The Minister stated that he would be briefing Ministers in the Justice Crime Prevention and Security Cluster this week on draft policy that would allow independent candidates to stand in national and provincial elections. After the draft policy has been approved by Cabinet the Committee will be briefed on it.
Electoral Laws Second Amendment Bill: MP, Mr Mosiua Lekota, briefed the Committee on his Private Member's Bill, the Electoral Laws Second Amendment Bill [B34-2020], saying it focuses on six key building blocks:
• inclusion of independent candidates in elections,
• creation of a hybrid system providing proportional representation plus 52 multi-member constituencies,
• retention of the single transferable vote mechanism to ensure proportional representation,
• substituting ‘closed list’ with ‘open list' representation allowing voters the right to vote for a candidate on a political party’s list rather than the party,
• requiring each candidate to publish how s/he would advance the Bill of Rights if elected,
• achievement of a smaller government due to the dire fiscal reality and an exploration of e-voting mechanisms.
Several Members, including the Deputy Minister, extended their appreciation for great amount of work taken to conceptualise and draft this Bill.
The Chairperson said that the Committee would give the Executive time to reflect on the amendment of the Electoral Act and table its proposals. The Chairperson was tasked to discuss with the Speaker for support in holding a stakeholder engagement forum to discuss this matter.
Chairperson Bongo convened the virtual meeting and welcomed the DHA delegation of Minister Dr Aaron Motsoaledi; Deputy Minister Mr Nzuza Njabulo; Mr Tommy Makhode (Director-General) , Mr Jackson McKay (Acting Director-General) , Mr Thomas Sigama Deputy Director-General (DDG) : Civic Services, Mr Thulani Mavuso (DDG: Institutional Planning and Support) , Mr Gordon Hollamby (DDG: Finance and Supply Chain Management) , Mr Vukani Nxasana (Acting DDG: Counter-Corruption) , Mr Modupi Ka Mdluli (Chief of Staff) . Mr Gene Ravele, Acting Commissioner of the Border Management Authority (BMA) , was also in attendance.
The Chairperson stated that following the humanitarian and health crises at the Beitbridge and Lebombo ports of entry and the oversight visit of the Committee, a decision was made in the Committee’s previous meeting to request detailed plan be developed by DHA to ensure that the reprehensible situation does not repeat itself when the borders are opened. The development of electoral legislation, as directed by the Constitutional Court, must be properly discussed by the Committee. This Committee is responsible and committed to deal with the matter within the timeframe given by the Constitutional Court to present a solution for the electoral system that will be sustainable and accessible by all South African.
Readiness to reopen the ports of entry
Dr Aaron Motsoaledi, Minister of Home Affairs, stated that DHA is going to present the detailed plan on the re-opening of the land ports of entry as required by the Committee. The South African government, in response to the resurgence of the COVID-19 pandemic, closed its borders in January 2021 to reduce the spread of the COVID-19 pandemic. All land ports of entry are currently closed, and only limited services are available. The re-opening of the ports of entry is a decision to be taken by the National Coronavirus Command Council (NCCC) , and an official announcement will follow for its re-opening. It is imperative that DHA ensures that the ports of entry are ready to deliver the required services. This is a critical requirement for the seamless facilitation of people movement and all other border processes, but more importantly, the implementation of health requirements to comply with COVID-19 safety protocols.
Operational review and analysis of the 2020/21 Festive Season:
Mr Gene Ravele, BMA Acting Commissioner, said the high levels of congestion at the Beitbridge, Lebombo, and Maseru ports of entry were because of three contributing factors, which include the testing of all travellers at South African ports through Port Health which experienced capacity challenges, the lower cost of testing at the borders compared to neighbouring countries, and the stringent lockdown measures implemented in Botswana that caused truck drivers to divert to the Beitbridge Port of Entry.
In a previous meeting the question was raised about movement statistics for departing travellers in December 2020 and arriving travellers in January 2021. DHA reported that the border control process for departing travellers was less stringent because no traveller was required to submit a COVID-19 test certificate for departure. Travellers were subjected to new entry and departure processes where antigen and COVID-19 tests were required. This had an impact on the flow at the ports of entry. The wait for test results led to the accumulation of people and added to the congestion at the borders. The sudden implementation of a hard lockdown at the start of January by Zimbabwe caused anxiety and a desperate need for foreign nationals to enter South Africa.
Situational analysis at the ports of entry:
At the Beitbridge Port of Entry, massive congestion resulted from the fear of a total lockdown in Zimbabwe. False COVID-19 test certificates were submitted, and the illegal crossing of persons were aided by Zimbabwean soldiers and law enforcement. The South African National Defence Force (SANDF) had its hands full with the interception of people trying to enter South Africa illegally. Truck drivers failed to enter holding areas and remained on the N1 which contributed to serious congestion on the highway.
At the Lebombo Port of Entry, illegal entry to South Africa by foreign nationals from Pakistan, Somali, Bangladesh, India, Ethiopia, and China using Emirates through Dubai. False COVID-19 test certificates were submitted and discovered by officials at the border.
At the Maseru and Ficksburg ports of entry, illegal crossings through the Caledon river were reported. False COVID-19 test certificates were submitted, and a large number of travellers presented positive results when tested for COVID-19 by border officials.
Response to the pandemic by neighbouring countries:
Botswana: On 24 March 2020, Botswana implemented restrictions on movement of people with the exception of goods and services and returning nationals were subjected to quarantine. On 9 November, Botswana implemented stringent requirements that required persons entering Botswana to have a valid negative test for COVID-19 not older than 72 hours. Non-citizens were not allowed entry except for truck drivers who were tested by the Botswana Health Authorities upon arrival. Truck drivers had to wait for three days for the result. On 31 January 2021, Botswana implemented restrictions on movement until 28 February 2021, with a curfew: 20h00 to 04h00.
- eSwatini: On 15 April 2020 it implemented that travellers must present a negative test result for COVID-19, and this requirement is still in effect. Risk levels were adjusted in line with South African strategies.
- Lesotho: On 29 March 2020 it implemented a red alert lockdown that restricted movement except for goods and medical emergencies. This lockdown was in place until 1 October 2020 when South Africa’s borders re-opened. A curfew is in effect between 21h00 and 05h00.
- Mozambique announced a state of emergency from March to September 2020. Amendments were made requiring travellers to present a negative test result for COVID-19.
- In January 2021, Mozambican authorities retaliated to the DoH decision to refuse entry into South Africa for Mozambicans with COVID-19 tests results conducted in Mozambique. On 5 February 2021, Mozambique imposed a curfew with immediate effect.
- Zimbabwe: On 30 March 2020, it imposed a total lockdown that restricted all movement except for goods. On 12 June 2020, a negative test result for COVID-19 was implemented. The Zimbabwean borders were reopened on 1 December 2020. On 5 January 2021, another total lockdown was implemented for 30 days that restricted movement in and out of the country. This lockdown was extended until 15 February 2021. Zimbabwe has a curfew: 18h00 to 06h00.
Implementation plan for the re-opening of the borders:
The implementation plan will be presented to NatJOINTS for approval. The lockdown and the curfew implemented in South Africa during the adjusted risk levels necessitated the alignment of operational hours with the applicable Regulations as published by the Department for Cooperative Governance and Traditional Affairs (COGTA) . The Beitbridge Port of Entry will operate from 06h00 to 21h00 with restrictions of movement imposed by the curfew in Zimbabwe. The Lebombo, Oshoek, Maseru, and Ficksburg ports of entry will operate from 06h00 to 21h00 with restrictions of movement only imposed by the South African curfew. The Kopfontein Port of Entry will operate from 06h00 to 21h00 with restrictions of movement imposed by the curfew in Botswana.
On staff capacity at the ports of entry, the increased movement of people during peak periods requires the deployment of additional staff to the six busiest land ports of entry. A total of 557 officials will be deployed from the to the six busiest lands ports of entry. To supplement the staff at the ports of entry, an addition 126 officials will be deployed from the Department of Health (DoH) , 630 officials from the South African Police Services (SAPS) , and 382 officials from the South African Revenue Services (SARS) . There is a serious disjuncture between the health capacity and the rest of the entities for border law enforcement. The shortage of health staff contributes significantly to the congestion at the border posts.
The Beitbridge Port of Entry has the following DoH capacity: 46 Port Health staff, three testing stations, and 16 staff members from National Health Laboratory Services (NHLS). Lebombo Port of Entry has: 20 Port Health staff, five testing stations, and 34 staff members from NHLS and private sector. Oshoek Port of Entry has: 16 Port Health staff, two testing stations, and seven staff members from NHLS. Maseru Port of Entry has: 46 Port Health staff, three testing stations, and 16 staff members from NHLS. Ficksburg Port of Entry has: 12 Port Health staff, four testing stations, and 12 staff members from NHLS. Kopfontein Port of Entry has: 11 Port Health staff, one testing stations, and two staff members from NHLS. This information relates to the deployed capacity over the festive season as received from DoH. It is reported that this is the same capacity that is currently available and the experience in January 2021 suggests the same congestion challenges will be experienced at the testing stations.
There is ongoing discussions between DoH and DHA to finalise the health plan to support the re-opening of the borders. The following issues are currently under discussion: deployment of additional capacity to strengthen testing capacity at the Beitbridge and Lebombo ports of entry, re-organising of the antigen testing footprint and the deployment of resources, the diverting of testing to a selected number of ports of entry with adequate capacity, an increase in the testing capacity at the borders by the inclusion of more private sector testing stations, the implementation of a ticket system to manage queues at the border, and engagements with neighbouring countries to make testing more affordable which will then reduce the backlog and workload at the ports of entry.
It is paramount that social distancing and compliance with COVID-19 protocols are implemented effectively at the border posts. The BMA Commissioner has been tasked with improving the infrastructure such as signage and markings to assist in the compliance with COVID-19 protocols, which is scheduled to be completed by 12 February. The BMA Commissioner must ensure the installation of sanitising stations and railings by 14 February. The SAPS is tasked with sending a request for the activation of ProvJOINTS to ensure the deployment of Public Order Police to deal with unruly crowds and travellers, which must be completed by 12 February. SAPS was tasked with enforcement of COVID-19 Regulations with three SAPS officials at each testing station, and this task has been issued to all police commanders in South Africa, which renders it completed.
The deployment of an adequate number of testing stations is a key priority for DHA. Discussions between the BMA, the DoH, and the NHLS are scheduled to be completed by 9 February to secure additional testing stations and capacity. The DoH and NHLS are responsible to effect the deployment of military health staff to selected ports of entry to augment the current capacity, and this is scheduled to be completed by 9 February. NHLS implemented a shift arrangement to ensure that services are delivered in alignment with the operating hours of the ports of entry, and a request was sent to NHLS to consider sourcing additional testing stations from the private sector.
Specific interventions are being put in place to address the challenges at the Beitbridge Port of Entry. This includes establishing collaborative processes with the Limpopo Provincial Authorities. It also included the development of an integrated Traffic Management Plan for the N1 route between Musina and the Beitbridge Port of Entry to implement measures dealing with truck congestion. Discussions were held with various stakeholders in the freight industry and such engagements will continue to ensure a collaborative approach. The Cross-Border Trucking Association met on 6 February and is scheduled to provide feedback soon. Discussions with Zimbabwe was scheduled for 8 February to discuss issues pertaining to the alignment of curfews, the management of traffic through the ports of entry, sourcing support from Zimbabwe to deal with fraudulent certificates and illegal border crossings, the need for immigration processes to be put into place by the Zimbabwean Authorities, and implementation of effective mechanisms to regulate the number of people in queues and who require testing.
Specific interventions are being put in place to address challenges at Lebombo Port of Entry. Discussions with Mozambique will be held on 10 February to discuss alignment of curfews, management of traffic through the ports of entry, sourcing support from Zimbabwe to deal with fraudulent certificates and illegal border crossings, the need for immigration processes to be put into place by the Zimbabwean Authorities, and implementation of effective mechanisms to regulate the number of people in queues and who require testing. The Cross Border Road Transport Agency (CBRTA) is scheduled to deploy a queue management system as a pilot at the Lebombo Port of Entry to manage the movement of trucks in and out of South Africa.
Specific interventions are being put in place to address the challenges at the Maseru Port of Entry. Discussions between BMA and the Lesotho Port Authorities were held on 22 January 2021, which included the alignment of curfews, management of traffic through the ports of entry, sourcing support from Lesotho to deal with fraudulent certificates and illegal border crossings, need for immigration processes to be put into place by Lesotho Authorities, and implement mechanisms to regulate the number of people in queues and who require testing. A follow-up meeting is scheduled for 14 February 2021.
Operational support for the implementation plan:
The maintenance and upkeep of infrastructure remains a challenge and it has a serious impact on operations by compromising the delivery of services at the land borders. To ensure that the ports of entry’s infrastructure is maintained, the property owners are responsible to ensure such services are delivered. At airports, the Airports Company South Africa (ACSA) is the property owner, and it must ensure that infrastructure is maintained and repaired. The same arrangement exists at seaports where Transnet Ports Authority (TNPA) is the property owner. No challenges such as “dirty working and operational areas or ablution facilities” are experienced at these modalities.
This is different to land ports of entry where the Department of Public Works and Infrastructure (DPWI) is the proprietor and responsible for maintenance of land borders. DHA is working on a system where contractors are appointed on a three-year contract to deliver repair and maintenance at ports of entry. DPWI is struggling to renew contracts and is consequently unable to render service. Interventions to remedy this include a meeting between DHA and DPWI on 11 February, and continuous engagement with DPWI and BMA.
Status update on the One-Stop-Border-Post:
The policy framework that will guide the implementation of the One-Stop-Border-Post project is currently in progress, and the relevant consultations are now being conducted.
Chairperson Bongo thanked DHA for the submission of its implementation plan for the re-opening of South Africa’s borders. It is important that there is a clear roadmap for the way forward.
Ms M Modise (ANC) stated that the border challenges result from lack of capacity at Port Health. It is important that the Committee engages with Port Health. DHA must interact with DoH and Port Health to understand its plans going forward, particularly efforts to increase testing capacity. She expressed concern that DHA’s implementation plan seems to be a short-term solution to the problems at the ports of entry. Given that the Easter holidays are approaching, there is a need for a more stringent and set plan to address the congestion challenges at the ports of entry. On the engagements between South Africa and its neighbouring countries, it is paramount that there is signage in place at all borders, especially in neighbouring countries. The Committee appreciated that DHA had engaged with relevant stakeholders. However, it is worrying that DHA is leaving the SANDF out. The SANDF must be included in the collaboration to be able to assist Port Health in ensuring adequate service delivery.
Ms L van der Merwe (IFP) said the implementation plan looks good on paper, and that hopefully DHA’s plan works well upon implementation. The Lebombo Port of Entry has been identified as an area where illegal crossings into South Africa are taking place – this has been identified in the past as an area that requires immediate intervention. What measures have been put in place to prevent these illegal crossings? Borders will be reopened in the near future, and this will exacerbate the extent of these illegal crossings. What is the plan to stop this from happening? It is not adequate to simply list it as an area of concern without doing something about it in an effective manner. There is an outcry from South Africans at large and organisations about our spaza shops being wiped out and taken over by foreign nationals. If we know that this problem is taking place on a large scale, DHA needs to explain why interventions are not in place to tackle this.
On the meeting with Zimbabwe, she thanked DHA for engaging with our neighbouring countries. What help has South Africa’s counterparts given to prevent illegal crossings? If there is no assistance from the Zimbabwean authorities going forward, DHA needs to report on what it will do to ensure cooperation. Are we going to escalate the matter to the South African Presidency? Or will DHA be content with the Zimbabwean authorities disrespecting South Africa’s sovereignty and laws? On the engagements with neighbouring countries to allow testing to be conducted at more affordable prices, this is a step in the right direction. What is the progress on this? Travellers are required to present to the border with a true negative COVID-19 test. It cannot be expected that South Africa must simply take over the duty to test everyone at its borders and not resort to turning people away like other countries do. How far is the process to appoint a permanent BMA Commissioner and Deputy Commissioner. What has been the development on the protocol agreements with other departments to roll out BMA?
Ms M Molekwa (ANC) appreciated the implementation plan. On congestion during the festive period, she commissioned DHA to start planning for Easter holidays well ahead to avoid the challenges of the festive season – they should not be repeated. She proposed that the Minister engage with the Minister of Public Works to solve the challenges involving DPWI.
Ms A Khanyile (DA) referred to the woman who received a death certificate instead of an ID. The problem now is that her children has different ID numbers on their matric certificates than are on their IDs. The children are struggling to find employment or register at tertiary institutions. The woman has reported that the children have become depressed and suicidal. DHA must attend to this as a matter of urgency.
Ms T Legwase (ANC) interjected and asked the Chairperson to call Ms Khanyile to order. All Members have problems that need to be resolved in their own constituencies. The Committee should stick to the agenda and only raise questions on that.
The Chairperson stated that the objection is sustained. Members should only raise concerns on the reopening of the borders and relevant issues.
Ms Khanyile replied that she is not raising the matter. She was merely requesting DHA to submit its report on the matter as she had raised this in previous meetings but had not received a response from DHA.
The Chairperson stated that Ms Khanyile should raise these issues during a meeting of the Committee when long queues outside DHA offices are addressed. He asked her to confine her concerns or questions to the reopening of the borders and the challenges faced by DHA on this.
Ms Khanyile stated that she will correspond with the Chairperson about her concern. She said it appears as if DHA is not confident that it is ready to open the borders. She suggested that the Committee have another meeting this week for Members to get proper feedback on the engagements that are scheduled to be conducted and finalised this week. There is a great possibility that severe cases of congestion will be experienced as a result of the limited capacity of DoH and Port Health at border posts. A multi-stakeholder meeting with the departments involved must be conducted. It would have been useful to have DoH present. Feedback is required from DHA on its engagements with neighbouring countries.
Mr M Tshwaku (EFF) stated that the briefing made it clear that DHA was not ready to open the borders in December 2020. Looking at the amount of work DHA must do, it is clear that the borders were not ready to be opened. DHA introduced a new problem to the borders. It seems as if DHA is shifting the blame to other countries and finding excuses for the problems faced at the borders. The Committee is fully aware of the situation at the border. DHA tried to justify its own failures. The requirement during this meeting was to simply present its readiness to open the borders. The DHA presentation is flawed in many ways. There is an enormous capacity problem with Port Health.
The purpose of this meeting was that DHA provide solutions to the challenges, and not to merely repeat the challenges the Committee is already aware of. The Committee needed concrete information on the readiness of DHA to open the borders. DHA needs to rely on science to make its decisions and put its political agendas aside. This is why the Minister felt confident enough to state on television that this Committee is incompetent, because DHA is acting political. DHA must identify the main problem, which is the coordination and capacity of Port Health. He agreed with Ms Khanyile that the Committee must have another meeting to ensure that DHA is ready to open the borders and COVID-19 protocols will be adhered to.
The briefing was mediocre and does not address any of the practical challenges at the border. It was done in a haste and was a mere tick-box exercise. Deploying the military will only incite violence at the borders. DHA must deal with the problem of the Port Health and coordinate properly to ensure that COVID-19 protocols are enforced. Violence will not solve this and this Committee cannot support the deployment of ProvJOINTS as a response to a lack of capacity and proper coordination. A proper situational analysis must be conducted. DHA must ensure that a proper relationship is maintained between South Africa and its neighbouring countries such as Zimbabwe. Proper diplomacy must be enforced in each and every engagement with our neighbouring countries.
Ms Legwase appreciated the efforts taken by DHA in its implementation plan. The plan must include the implementation measures for peak periods, such as the upcoming Easter holidays. She appreciated the DHA engagements with other stakeholders and African countries. She agreed that another meeting must be scheduled so DHA can brief the Committee on the outcomes of all its engagements. The Acting BMA Commissioner must report on the progress made.
Mr K Pillay (ANC) stated that the Committee should be more encouraging towards the DHA implementation plan. On Covid-19 testing, he agreed with the DHA timeline that an antigen test takes 15 minutes to ensure that proper records are kept. However, it is paramount that the testing process is streamlined and the challenges addressed.
Mr Q Dyantyi (ANC) supported the DHA briefing. If the Committee has to schedule another meeting, it should be for an update and not due to a lack of quality of this briefing. He commended DHA on its progress.
Mr M Chabane (ANC) appreciated the DHA briefing and expressed his support. The implementation plan was requested by the Committee to address their concerns. The plan addressed congestion, meetings with stakeholders and engagements with neighbouring countries. On Port Health, the Committee did request in a previous meeting that DHA should clarify the challenges. It would have been useful to have Port Health officials present to account for the concerns of the Committee.
The Chairperson thanked Members for their robust engagement with the DHA briefing. The Committee is expecting a final report from DHA to give further information on the implementation plan. The briefing is quite comprehensive, but the outstanding matters must be addressed. The Committee will take a decision on whether another meeting will be scheduled as proposed
Withdrawal of permits issued to foreign nationals
The Committee considered the letter from the Minister on the withdrawal of permits issued to foreign nationals at the Royal Bafokeng Platinum Mine.
The Chairperson stated that the Committee has taken the view that the permits must be withdrawn. A failure to do so is unacceptable. The DHA official that issued the permits on days DHA was closed without the knowledge of his superior shows the level of corruption at DHA. The Committee appreciated the written correspondence by the Minister. However, it does not excuse the DHA official was called while on leave to issue over 1 000 permits. The permits must be reversed and the proper process must be followed.
Mr Tshwaku asked who vetoed the decision by the Committee. Why has this decision not been implemented yet? The crux of the matter is that corruption occurred. An investigation must be expedited to ensure that consequence management is implemented.
Mr Chabane emphasised the need for investigation to effect consequence management. Correspondence between the Chairperson and the Minister is not sufficient for the Committee to understand the allegations against the DHA official.
Minister Motsoaledi stated that DHA would never attempt to override the decisions of the Committee under any circumstances. He wrote the letter to the Chairperson simply to outline the dilemma. There are legal implications to the Committee’s instructions for DHA to withdraw the permits. The Committee can call all the stakeholders to account to Parliament for a public hearing. If DHA withdraws the permits as instructed, there are serious legal implications that must be considered. DHA cannot break the law of the country on the instruction of the Committee. It is difficult for DHA to act on the Committee's instructions considering the legal implications of withdrawing the permits.
The Chairperson stated there is a need to get to the bottom of the matter by engaging the Department of Labour, Parliament’s Legal Services and the DHA official who is accused of fraudulently issuing the permits. The Committee remains steadfast that fraud and corruption must be eliminated and the due process of law must be followed at all times. He agreed that the Committee should call a public hearing to hold the DHA official accountable. The Committee takes issue with this matter because South Africans should have been employed and the DHA official was called on a holy day to issue permits.
Committee’s complaint on late DHA documents
Ms Legwase complained that DHA sends the briefing documents extremely late and Members do not have adequate time to research the matters reported on.
Ms van der Merwe agreed. The Rules of Parliament clearly state that Members must receive the documents at least 48 hours before a scheduled meeting. It is not acceptable that a lengthy document is sent out the night before a scheduled Committee meeting. Members need adequate time to research, consult with their caucus and do the necessary preparation.
Ms Khanyile agreed and requested that all documents are sent by email and not WhatsApp.
Mr Chabane agreed that DHA sends the briefing documents extremely late and Members do not have adequate time to research the matters reported on. It is important that the Rules of Parliament are enforced consistently. He proposed rescheduling the next agenda item so Members can prepare properly to effectively engage with the issues at hand.
The Chairperson acknowledged the complaints raised by Members. He agreed that the Rules of Parliament must be enforced consistently. He was of the view that the Committee hear the briefing to put the information on record. The Committee does not need to conclude on the matter and the discussion might have to be rescheduled for Members to conduct consultations and research.
Developments to amend the Electoral Act:
Minister Motsoaledi spoke on the development of policy and legislation to amend the Electoral Act No 73 of 1998 to allow independent candidates to participate in national and provincial elections. The Constitutional Court declared the Electoral Act unconstitutional to the extent that it requires that adult citizens may only be elected to the National Assembly and Provincial Legislatures only through their membership of political parties. The declaration of invalidity is from date of the 11 June 2020 court order but its operation is suspended for 24 months to grant Parliament an opportunity to remedy the defect.
In studying the judgment of the Constitutional Court, DHA noted paragraph 15 of the judgment which stated: “Before I proceed to deal with the interpretative exercise, let me mention that a lot was said about which electoral system is better, which system better affords the electorate accountability, etc. That is territory this judgment will not venture into. The pros and cons of this or the other system are best left to Parliament which – in terms of sections 46(1)(a) and 105(1)(a) of the Constitution – has the mandate to prescribe an electoral system. This Court’s concern is whether the chosen system is compliant with the Constitution”.
Taking paragraph 15 of the judgement together with other reports such as the Slabbert Task Team Report of 2003 and the Motlanthe High Level Panel Report of 2017, DHA concluded that in complying with the Constitutional Court judgement to accommodate independent candidates, Parliament cannot just end there. Parliament must take a giant leap and produce a new electoral system as suggested by paragraph 15 of the Constitutional Court ruling. Having reached this conclusion, DHA reasoned that South Africa could not be the first and only country faced with configuring a new electoral system. There should be other democracies globally that in one way or the other went through this problem and understood the pros and cons of the available systems.
DHA has studied five electoral systems: single-member constituency system (first-past-the-post-method) where four countries were studied; mixed-electoral system (mixed-member proportional representation system) where two countries were studied; closed-list system (party list system), where one country was studied. It also explored the preferential list systems by studying three countries, and the African continent was studied through examining five countries and their electoral systems.
Armed with this information, DHA drafted a policy document which must guide the country on the choices for South Africa’s electoral system under the circumstances. This posed the question on whether there are major unforeseen legislative amendments that must be done to bring our electoral system in line with the ruling by the Constitutional Court. Legislation that must be amended include the Electoral Act, the Public Funding of Represented Political Act 103 of 1997, Electoral Commission Act 51 of 1996, Local Government Municipal Demarcation Act 27 of 1998, and Political Party Funding Act 6 of 2018. DHA has set up multi-disciplinary teams to start looking at amendments to these pieces of legislation.
Dr Motsoaledi stated that he would be briefing Ministers in the Justice Crime Prevention and Security Cluster this week on a draft policy that would allow for independent candidates to stand in national and provincial elections. The Constitutional Court has given Parliament 24 months, until June 2022, to fix the defects in the Electoral Act that gave rise to the declaration of unconstitutionality. After the draft policy has been approved by Cabinet, the Committee will be briefed on its contents. A technical team from the cluster was briefed in November 2020, and he was expecting to brief a special sitting of Ministers in the cluster soon. The Ministers in the cluster regard this item to be so serious that it needs special attention. He was promised that sometime this week a special session will be called where the Minister will open that policy officially. The policy will then go to a joint Cabinet Committee meeting of all government clusters (within the next two weeks) , before going to Cabinet for final approval, possibly mid-March. Only then, will it be presented in Parliament.
The Chairperson stated that the Committee resolved to give the Executive time to reflect on this matter and to table its proposals when the Cabinet processes have been concluded. The Chairperson has been tasked with initiating a discussion with the Presiding Officers of Parliament to get their support for holding a stakeholder engagement forum to discuss this. This decision is in line with the Committee’s commitment to engage extensively on the matter.
Electoral Laws Second Amendment Bill: briefing
Mr M Lekota (COPE) presented his Private Member's Bill, Electoral Laws Second Amendment Bill [B34-2020] assisted by Mr Farouk Cassim.
Mr Lekota stated that under the current electoral system, voters are ‘estranged’ because a direct relationship with a Member of Parliament is absent. The Bill was introduced in 2020 to give effect to the Constitutional Court ruling that found that the country’s Electoral Act is unconstitutional as it does not provide for adult citizens to be elected to the National and Provincial Legislatures as independent candidates. He had also introduced the idea of a constituency-based electoral system, which will boost the level of accountability within the South African government.
Mr Cassim explained that the Bill addresses the issues raised by Mr Lekota by focusing on six key building blocks. This consists out of the inclusion of independent candidates in elections, creation of a hybrid system which provides proportional representation as well as 52 multi-member constituencies, retention of the single transferable vote mechanism to ensure proportional representation, substituting the ‘closed list’ representation system with an ‘open list' system allowing voters the right to vote for a candidate on a political party’s list rather than the party, requiring each candidate to publish how s/he would advance the Bill of Rights when elected, achievement of a smaller government because of the dire fiscal reality, and an exploration of e-voting mechanisms.
Voters would have a right to rank candidates during the election by voting for a particular party-nominated candidate or an independent candidate, as opposed to voting for a party. The proportional representation system would then kick into effect on the basis that the candidate who makes the cut would be able to pass the surplus votes to like-minded and ideologically compatible candidates if they so determine before the election. The Bill proposes to decrease the number of Members in Parliament to 350, and to reserve at least one third of the seats for woman.
Before a general election, independent candidates would have to notify the Electoral Commission (IEC) to which independent candidates their surplus votes, if any, must go. This will be the case if they reach the quota or if their votes become unusable because they did not reach the set ceiling. If the votes of independent candidates cannot be used for whatever reason, they will go into the common pool. The IEC will make a list in descending order and declare the winning candidates after awarding seats to those who make the quota. The seat allocation will eventually be as near proportional as possible to meet constitutional requirements.
The Electoral Laws Second Amendment Bill proposes the use of an ‘open list’ proportional representation system. This will allow voters to pick a candidate of their own choice from each political party’s list for each of the three segments of the election: provincial, national (1) and national (2). Political parties will still submit their lists to the IEC with their preferred rankings of candidates. The final position on the list, however, will be determined by the votes that each candidate attracts. Candidates with the most votes will rise to the top of the list. On the day of the election, voters will be casting their vote for a candidate for each segment of the general election even if that candidate happens to be on the list of a party.
The Bill also retains the use of the single transferable vote, with some modifications. Rather than one candidate representing all the voters in a constituency, multi-member constituencies will be created where as few as one Member of Parliament and as many as 25 Members of Parliament could be elected for a big constituency to reflect the diversity of ideology in that area.
On election day, a voter will have three votes – one for each segment of the elections. Voters can vote for an independent candidate for each segment or a candidate on the list of a political party. The IEC will determine a quota for a candidate to make the cut for each segment of the election. Those who meet the quota and qualify to be elected, may have surplus votes. These will be distributed from that candidate to a candidate on their party’s list in a ranking order determined by the IEC. Finally, all unused or surplus votes will go into a common pool allowing other candidates from other parties to use up surplus votes. The outcome at the end will be closely proportional.
The Bill argues for a combination of proportionality with constituency representation, with COPE saying that only individuals have the capability of representing voters in a granular manner, not political parties. To achieve this personal association with a public representative, each of South Africa’s current 52 districts could, as per their population size, serve as a larger or smaller multi-member constituency which could be contested by individuals as well as political parties through an “open list” proportional representation system. Each district, therefore, will have councillors as well as representatives serving in the National Assembly and Provincial Legislatures. The IEC would be responsible for determining the boundaries of each constituency, as well as keeping a map of each constituency.
The Bill proposes replacing the current ballot paper system with a ballot card. Under this system, the allocated number of every candidate, together with the candidate’s name and photograph must appear on three separate posters, which shall be pasted on three separate panels in each polling booth on the day of the elections. Each voter votes by placing the candidate number on each of the ballot cards for each of the three segments of the election. There will be separate ballot cards for one's constituency in the National Assembly, one's constituency in the Provincial Legislature, and for the overall composition of the National Assembly referred to as the national ballot card. The IEC must allocate a number to every candidate. The number allocated must contain a prefix to distinguish if the candidate is contesting for a National Assembly or Provincial Legislature seat.
The Bill proposes the introduction of an electronic voting system. A number of countries have implemented this successfully. In Brazil, each candidate is assigned a number in which the first two digits are the party number and the others the candidate’s number within the party. The voting machine has a telephone-like panel where the voter presses the buttons for the number of their chosen candidate. In Finland, each candidate is assigned a three-digit number, while in Italy, the voter must print the name of each chosen candidate.
The Chairperson acknowledged the complaints by Members on the late submission of documents for the briefings. The Committee has resolved to give the Executive time to reflect on this matter and to table its proposals when the processes have been concluded. The Chairperson has been tasked with initiating a discussion with the Presiding Officers of Parliament to get their support for holding a stakeholder engagement forum to discuss this matter. This decision is in line with the Committee’s commitment to engage extensively on the matter. It is the beginning of a long road of legislative drafting by Parliament.
Mr Lekota stated that Mr Cassim and he will be available for a workshop or further discussions to flesh out the matters before the Committee.
Ms van der Merwe thanked Mr Lekota for the immense work that has gone into drafting the Electoral Laws Second Amendment Bill as a Private Member’s Bill. The Cabinet in 2002 appointed a team under the leadership of Frederik van Zyl Slabbert to investigate electoral systems and report on what would best suit South Africa. One of the task team’s main recommendations was for South Africa to have a mix of proportional representation and a constituency-based system. She expressed support for this type of electoral system.
Mr Dyantyi emphasised the need not to rush the process and the Committee’s engagements with the Electoral Laws Second Amendment Bill. The Bill’s gender representation in Parliament reduces the 50/50 standard that is advocated for by the ANC. He argued that there is a misrepresentation by Mr Lekota on the number of people who are not voting because they wish for independent candidates to be on the ballot. An assumption cannot be made that people are deciding not to vote merely because they want independent candidates. Basing the assignment of seats in Parliament on the number of registered voters would not be efficient and result in voter suppression.
Mr Tshwaku called for a workshop so Members can deal with the Electoral Laws Second Amendment Bill in detail and on a step-by-step basis to give meaningful input. The workshop should be supplemented by research on electoral systems in other countries. How will the constituencies be established according to the Bill, given that there are different numbers of voters in each constituency?
Deputy Minister Nzuza Njabulo thanked Mr Lekota for the immense work that has gone into drafting the Electoral Laws Second Amendment Bill. He raised gender representation and transferability of votes. The Electoral Laws Second Amendment Bill must be seen as a part of the workshop that involves all stakeholders and the IEC and DHA.
Minister Motsoaledi stated that everyone agrees that the Constitutional Court ruling must be implemented, regardless of political differences. Parliament must take a giant leap and produce a new electoral system as suggested by paragraph 15 of the Constitutional Court ruling to guide society. It is an extraordinarily complex task that lies ahead, and it will require a high level of collaboration.
The Chairperson agreed with Mr Dyantyi that Parliament cannot revert back to one third representation of women but that 50/50 representation must be maintained. That is the society that is envisaged by the Constitution, one founded on non-sexism and democracy. The Committee is of the view that the briefing on the Electoral Laws Second Amendment Bill contributes to the general discussions that must be held on the matter.
He said the Committee has resolved to give the Executive time to reflect on the amendment of the Electoral Act and to table its proposals. The Chairperson is tasked with initiating a discussion with the Presiding Officers of Parliament to get their support for holding a stakeholder engagement forum to discuss this matter. This decision is in line with the Committee’s commitment to engage extensively on the matter.
The meeting was adjourned.
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- Media Statement: Committee Welcomes Readiness to Reopen Border Posts
- DHA on Readiness of Ports of Entry
- Electoral Amendment Bill presentation
- DHA on Electoral System Judgment
- Research Unit: Electoral Laws Second Amendment Bill [B34-2020]: Summary
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