Electoral Laws Amendment Bill: IEC response to written submissions; with Minister

NCOP Security and Justice

17 February 2021
Chairperson: Ms S Shaikh (ANC, Limpopo)
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Meeting Summary

Video: Select Committee on Security and Justice, [NCOP]

The Independent Electoral Commission (IEC) briefed the Committee in a virtual meeting on the written submissions on the Electoral Laws Amendment Bill.

The Commission provided a detailed explanation on the five categories of responses and submissions it had received from the public. Section 16(2), the addition of 16(2A), and section 16(5) were central to the deliberations as Members considered the difficulties and constitutional imperatives for balancing the competing rights between access to information and the protection of personal information.  

Members were divided on the disclosure of the first six digits and the last three digits of the identity document (ID) number and redacting the ID digits. They raised widespread concern over the unlawful use of citizens’ information, especially given the increasing use of electronic systems and cyber security issues which made people vulnerable to fraudulent activities if personal information was disclosed in the voters’ roll.

Questions were raised on the penalties applicable when citizens’ information was wrongfully used, and the measures or regulations that were in place to monitor the use of information.  

The Commission assured the Committee that various mechanisms and processes were in place to constantly monitor information technology (IT) systems and cyber security issues, and to protect voters’ personal information on databases.

The Minister explained why the Department was moving from the Home Affairs National Information System (HANIS), where the biometrics were stored for the IDs on the National Population Register. This provided for only a fingerprint and a photo, and the Department realised that this was never enough for security, especially in the modern cyber world. The new system, called the Automatic Biometric Information System (ABIS), would add iris recognition to recognise people through the iris in the eye, as well as facial recognition. All of these additions were firewalls that were added for the integrity of identity.

Meeting report

Introductory comments

The Chairperson welcomed the Committee and the Minister of Home Affairs, Dr Aaron Motsoaledi, to the virtual meeting. She noted the presence of the Independent Electoral Commission (IEC) delegation of Mr Glen Mashinini, Chairperson, Ms Janet Love, Vice-Chairperson, Mr Sy Mamabolo, Chief Electoral Officer (CEO), and Adv Pansy Tlakula, Chairperson of the Information Regulator of South Africa, and all other officials from the parliamentary legal advisory team.  

She said that Members would recall that on 8 December 2020, the Committee received a briefing from the IEC on the Electoral Laws Amendment Bill. It had then held a meeting on 10 February 2021, where it was decided to give the officials more time to consolidate the responses to the submissions received on the Bill. It was also to give Members more time to look at this information on today’s deliberations so that there could be an informed discussion.

After the December meeting, the Committee advertised the Bill for public comment from 14 to 29 January in national and regional newspapers. It received at least five substantive public comments and submissions, and around 1 550 submissions via the Dear South Africa website. These submissions indicated whether there was support or not for the Bill, and many comments were not necessarily substantiated.

On the proceedings for this meeting, the IEC would provide responses to the substantive submissions. The Chairperson noted that these documents were sent to Members for consideration. After the presentation, the Information Regulator could address the Committee, as the Bill also deals with aligning the Electoral Act with the provisions of the Protection of Personal Information Act (POPIA). The Minister could then add his responses and the Committee would then deliberate on all the submissions.

The Chairperson invited the IEC to provide the Committee with a briefing on its responses.

Opening remarks by the IEC

Mr Mashinini said the Commission had made preparations for the responses of the public submissions the Committee had received. Section 5 of the Electoral Act 73 of 1998 mandates the Commission to “continuously review Electoral Legislation and propose Electoral Legislation and make recommendations therewith”. He explained that the Bill is directly aligned to this mandate which is periodically exercised by the Commission and timed to be completed before going into the next round of every election, whether they are provincial or national elections, or local government elections. The timetable is driven by the provisions of the Constitution and the Act.

On the submissions presented to the Committee, the Amendments contain important enhancements to the electoral process in achieving three key outcomes. For the Commission, the first is to streamline the electoral process to make it easier for parties and candidates to meet their obligations. The second is to clarify the voting process for voters whose addresses do not appear on the voters’ roll so that they are not disenfranchised in the upcoming elections. The third, and most importantly for the Commission, is to embark on a very critical process to bring the various pieces of electoral legislation in line with the POPIA of 2013. The Commission has a further requirement of this section in the Act, which is for the Commission to “promote cooperation with and between persons, institutions, governments, and administrations for the achievement of its objectives.”

The Commission wished to thank all those who took the time to make submissions on the Bill throughout the drafting and Parliamentary approval process. These submissions helped to ensure the process is inclusive, accessible, transparent, and well considered. He clarified “any other unintended impression that the Commission sought to circumvent Parliamentary processes by engaging directly with some of the stakeholders who made submissions during this latest phase.” The Commission had consulted, engaged, and interacted with a range of stakeholders throughout the process of drafting and finalising these amendments, as per the mandate. He noted that the draft amendments remain a work in progress until finalised, and the time constraints faced all Commissioners ahead of local government elections. The Commission sought to facilitate the reaching of consensus through a dialogue. The intention was to achieve a meeting of minds between the Regulator and amaBhungane prior to finalising the Commission’s appearance before this Committee.  

The Commission is encouraged that through this process it can table some revised drafting of section 16 for consideration by the Committee. It hopes that its enthusiasm to find a workable solution does not in any way undermine the Committee’s processes. On the inputs made by amaBhungane, the Commission acknowledges that it made a submission during the public consultation phase in the National Assembly. Unfortunately, that contribution was not submitted in time, and the Commission was under tremendous pressure to make up for the time lost due to the COVID-19 lockdown and still meet the constitutionally prescribed timeframe as indicated.  

For the Commission, the finalisation of these amendments remains a key factor in its preparations for the upcoming elections, which are six months away from now. After considering the amaBhungane submission again, the Commission resolved to reconsider the amendment to find an amicable balance accommodating all the stakeholders. The Commission explored what it regards as a win-win solution that resulted in the revised draft, which the Deputy CEO, Mr Masego Sheburi, would shortly expand on.

The Commission expressed its gratitude to the Committee for its work in expediting this matter despite the festive season break and a very busy schedule, with the ongoing challenges posed by the COVID-19 pandemic. It was looking forward to continuing to work closely with the Committee and the National Council of Provinces (NCOP) in this process in the future.  

Mr Mashinini requested Mr Sheburi to take the Committee through the Commission’s responses to all the submissions received.

Five categories of submissions and public comments

Mr Sheburi described the five broad categories that the submissions and public comments can be categorised into.

The first is on the substantive submissions on access to the voters roll and the details of voters contained therein. These submissions implicate Clause 8 of the Bill and section 16 of the Electoral Act.

The second category is on the ability of voters to vote in districts where they are not registered. These submissions are on Clause 9 of the Bill and section 24A of the Act.

The third theme is on submissions or comments directed at the choice of an electoral system for the country. These are outside the remit and scope of the current Bill and as a response, the Commission did not link it to any specific Clause or provision of the Bill.

The fourth category is on a varied voting method for voters who appear on the voters roll, but for whom the Electoral Commission still does not have an address. These implicate Clause 20 of the Bill and section 47 of the Municipal Electoral Act.

The last category of voters is on the amendments effected in section 50 of the Act, which are found in Clause 14 of the Bill.

The Bill implicates three pieces of legislation: The Commissions Act, the Electoral Act, and the Municipal Electoral Act.

Briefing on the responses to the submissions

Mr Sheburi said he would address each of the submissions received.

The first submission is on Clause 8 of the Electoral Act by amaBhungane. It has two submissions, and the first is on section 16(2). The summary of this submission is that the deletion of 16(2) from the Bill could serve to limit the ability of journalists and other interested stakeholders such as academics or community journalists, from obtaining copies of the voters’ roll. This would make the work of scrutinising the voters’ roll to check for irregularities very difficult for this class of professionals and citizens. With the insight and wisdom from the Regulator, the Commission’s response was to propose a redraft of section 16(2). The purpose of removing it was to safeguard the personal information of voters by limiting access to the voters’ roll, and not allowing every person unfettered access to the voters’ roll.

The redraft seeks to achieve two things -- to safeguard access to the voters’ roll, which is a right asserted by amaBhungane, and to balance it with the right to the protection of personal information. This right is protected under the Constitution on the rights to privacy.

The Commission is redrafting section 16(2) to reinstate it in the Bill, and seeks to find the balance between access in a manner that does not disclose unnecessarily the personal information of voters. The Commission proposes the redraft for consideration by the Committee, and to consider and accept it as a redraft that best traverses the tightrope between access and the protection of personal information.

The first redraft on 16(2) will now read as follows:

“the Chief Electoral Officer must provide a certified copy of, or an extract from, a segment of the voters’ roll as it exists at that time, to any person who has paid the prescribed fee, if the Chief Electoral Officer is satisfied that:..”  

Mr Sheburi referred to the underlined text in the presentation as the new inclusions. He pointed to the new inclusion 16(b) under section 16.

The Commission introduced 16(2A), which makes it an offence for someone to use an extract of the voters’ roll for purposes other than that which is not prescribed in section 16(2). Mr Sheburi clarified that it is reinstating section 16, but redrafting it to make the voters’ roll or segments thereof available for specific and predetermined purposes, subject to the requirements of POPIA on the safeguarding of the personal information of voters.

The second redraft proposed under Clause 8 is on section 16(5), which is a new inclusion. AmaBhungane raised an issue on the new section 15(a) in its current form. It was too wide and afforded the Chief Electoral Officer (CEO) overly broad discretion on the nature of personal information that must be redacted from the voters’ roll. The Commission proposes a redraft to section 16(5) to make it clear that the Electoral Commission does not desire an unfettered discretion on the nature of information to be redacted on the voters’ roll. It proposes a rephrasing for the new 16(5) to read as:

“the Chief Electoral Officer must redact the identity numbers of voters, excluding the six digits indicating the voter’s date of birth, appearing on the voter’s roll provided in terms of subsection (2) or (3), save where the requester satisfies the Chief Electoral Officer that: (a) exceptional circumstances require the full identity number to be disclosed and (b) doing so would not involve unlawful processing personal information in terms of POPIA”.

This new redraft clarifies the different provision that the Commission will redact the identity numbers (IDs) excluding the first six digits indicating a voter’s date of birth. This is the default situation. “It is a provision of the law and the CEO holds no discretion. The redaction is at the instance of Parliament and not the CEO”.

The Commission is introducing a very narrow exception to the rule that the remainder of the ID digits will be redacted. There may be instances where providing a voter’s roll redacted may not serve lawful purposes -- for example, if a party or a person wishes to object to the inclusion/exclusion of a specific person from a segment of the voters’ roll. In circumstances where they are multiple persons who share a first and second name on a segment of the voters roll, it may not be easy to distinguish which person against whom an objection is made if more digits of the ID number are not made available. In exceptional circumstances and on an argument made out that exceptional circumstances exist for the inclusion or the disclosure of more digits provided for under section 16(5), the CEO may disclose additional digits of the voters’ roll. Mr Sheburi emphasised that this is under narrow and pre-described exceptions in the law.

The redraft of section 16 follows the public participation process and submissions by amaBhungane, and the consideration by the Commission and the Regulator. In the view of the Commission, the redraft which is sponsored traverses that tightrope between guaranteeing access to information and safeguarding the privacy of voters by securing their personal information.

The third submission was received from an individual, Mr J.P. Wolhuter. The submission asserts that the present Electoral Law is along racial lines and is a risk to ethnic and racial minorities. The submission advocates an electoral law that facilitates contestations along the first language spoken by voters and citizens and thereby jettisoning political parties as platforms for representation. Mr Sheburi explained that elections should be administered along language preferences as a platform for contestation, and not using political parties as vehicles for citizens to assert their section 19 Constitutional right. The Commission responded that the submission appears to be concerned with the choice and design of an electoral system. He noted that there is a separate Parliamentary process to review the electoral system for national and provincial elections. This is the reason there is no response to this submission, as it falls outside the province of the Bill as it currently stands.

The next submissions were received from the 70s Group & Patriotic Movement SA. The two organisations call for amendments to be effected to the Electoral Act, to align it to the judgment of the Constitutional Court which was handed down in June 2020. The groups made specific recommendations for a particular electoral system. The Commission responded that the current Bill does not address the findings of the Constitutional Court judgment handed down in June 2020 in the New Nation Matter. There is a separate Parliamentary process to derive an electoral scheme for the country. It clarifies that this Court judgment did not impact or implicate the electoral system in the municipal sphere. Mr Sheburi explained that the electoral system in the municipal sphere remains competent, as it was not a subject of nor impacted by the Court judgement on the New Nation Matter.

The next substantive submission for which the Commission is proposing a redraft, is on Clause 20 and impacts on section 47 of the Municipal Electoral Act. The submission is at the instance of the City of Cape Town Municipality. The City supports the Bill, but takes issue with the style of drafting in Clause 20. It maintains that the original drafting could have amounted to an impermissible delegation of legislative powers by enabling the Commission to determine a different voting procedure for voters without an address. The Commission does not take issue with this submission. It is proposing a redraft to clarify that the different voting procedure for voters without an address is still subject to the safeguard and the procedure determined by the legislature in section 47.

The Commission responded that the Amendment to section 47 of the Municipal Electoral Act brings the Act in line with section 38(8) of the Act, to create consistency on how voters without addresses on the voters’ roll cast ballots on voting day. Mr Sheburi outlined the salient principles underpinning this amendment. He noted that the redrafting clarifies that the method is already prescribed in section 47 and that a different method will still be subject to this method. The new section 47(7) would read as:

“the Commission may prescribe a different voting procedure, which must accord with the provisions of this section, for those voters whose names appear on the voters’ roll, without addresses”.

These provisions indicate that a voter may vote only at a voting station at which they are registered, they can vote only once in an election, they must produce an ID document, and the description of the person in the ID document must be that of the person presenting the ID if that person’s name appears on that segment of the voters’ roll. Only these persons will be permitted to vote via a varied voting method. Once these safeguards have been passed, the voter will be handed the requisite number of ballot papers, their hand will be marked to indicate they have voted, and their name will be taken off that voters’ roll to indicate they have already voted in that election. Section 47(7) intends to safeguard the continued franchise of voters who, for reasons beyond their control, still do not have an address on the voters’ roll.

The next submission is on Clause 14, and impacts section 50(1) of the Electoral Act. In the Bill, the Commission is removing the ballot paper reconciliation statement from the Act, and wants to address this by way of regulation. Mr Sheburi clarified that it is not dispensing with the requirement for the reconciliation of ballots issued and used at the station. It intends to make it easier to rationalise some of those processes implicated and impacted by the amendments in the law over a successive number of electoral amendments. The Commission responded that the amendment provides for the form to be regulated instead of including it in the main Act. This is intended to allow flexibility in accommodating any additional requirements for rationalisation of information on the form. For example, the introduction of section 38(8), section 41(1A), and amendments to Regulation 18A and 19(4) of the Electoral Regulations, impacted on the form that must be completed for section 50. By making it available and prescribing it in the regulation, it is easier for the Commission to keep up with the pace of development and to amend the form so that it remains useful as one of the many safeguards for the integrity of the elections. The regulation of this by the Commission enables it to readily respond. For example, the provisions have combined to introduce new categories of disputed votes that are not finalised at the voting station. These are not accommodated in this form, and the only way to change the form is to request a legislative amendment. If it is regulated in the regulations, the Commission can address it much more efficiently by amending the regulations. Mr Sheburi emphasised that the proposed change does not intend to limit the information that must be recorded on the form. The intention is to retain the requirements for the counting officer to account for the ballot papers at that voting station. The change is to regulate the form to enable flexibility to respond to new and emerging requirements without watering down the reconciliation requirement.

Most of the submissions received were on Clause 9, which deals with section 29(a) of the Electoral Act. Mr Sheburi commented that at high level, these submissions were from persons who do not support the Bill because “in their mistaken understanding, there is a perception that the Bill seeks to enable persons to vote in voting districts in which they are not registered,” If this were to be permitted, this would introduce and facilitate voter fraud, enable the “bussing in” of voters, and create an opportunity for unregistered persons to vote in elections. The net submission is that persons should not be permitted to influence the outcome of elections in areas in which they are not registered and/or they are not ordinarily resident. The amendment seeks to do the opposite of what the submissions perceive the Amendment to do. The Committee responded that the amendments to section 24(A) of the Electoral Act are intended to ensure that existing safeguards for the continued franchise of voters who unavoidably find themselves outside the voting districts in which they are registered on voting day during national and provincial elections, is adjusted. The Amendment is introduced to control the existing practice to safeguard the credibility of elections by requiring that voting using 24(A) should be by prior notice to the CEO.

Mr Sheburi explained that section 24(A) has its genesis in a law, from an observation in national and provincial elections. This is the key phrase, as section 24(A) finds application only in national and provincial elections, and there is no equivalent provision in municipal or by-elections. Section 24(A) was introduced to facilitate the continued franchise of citizens who found themselves unavoidably on voting day outside the area of their ordinary residence where they are registered. He provided an example of truck drivers who, on voting day, finds themselves in the Free State when they are registered in Limpopo. They are then unable to go back to Limpopo to cast their vote. If no accommodation was made, these voters would have forfeited the right to participate and shape the affairs of their country. This section made an exception to the requirement that the voter registers and votes where they are ordinarily resident, to allow for a person to go into any voting station on voting day during national and provincial elections to make a sworn statement to the effect that they are registered as a voter, they provide proof that they are registered, and they find themselves outside of their station of registration, and that they wish to participate in an election. Once these are confirmed, the person would be entitled to vote. If they are still within the province in which they are registered, that voter would receive the national and provincial ballot, but if not, that voter will be entitled to participate only by way of the national ballot.

Over time, this exception no longer facilitated the purpose and noble intention for which it was intended. It became a provision that facilitated the shopping of queues by political contestants. Voters were being moved from their voting stations and redirected to areas where there is a perception that there are shorter or no queues at that voting station. This has a very deleterious impact on the perception of freeness and fairness of an election. It also enables conspiracies to emerge that voters may have voted more times than they are entitled to.

The Bill now restricts the availability of section 24(A) at a voting station. Section 24(A) remains, but a person who wishes to vote by section 24(A) must give prior notice to the CEO of their intention to vote on election day outside of their station of registration, and indicate at which station they will cast their ballot. It is intended to safeguard the electoral outcomes and to avoid accusations that persons may have been able to vote more times than they are entitled to. Mr Sheburi underscored that there is no corresponding provision of section 24(A) in municipal elections. A person is still required to vote where they are registered in municipal elections, and their name will appear only in the voting district in which they are registered. He noted that this explanation seeks to allay fears of the submissions that perceived persons may be able to be biased to influence outcomes of ward elections in areas in which they were not ordinarily resident, or in which they have no business.

The next submission relates to the same Clause, and includes the people supporting section 24(A). These supporters recognise that many citizens have experienced a change in their circumstances due to financial reasons and employment opportunities. Persons may find themselves outside of their ordinary residence on voting day and these persons should not forfeit their right to vote provided they safeguard their continued participation.

The next category arises from a misreading of the Bill’s objectives. The Bill intends to make it easier for persons who are registered and intend to vote outside the Republic-- for example, a person registered against the segment of the voters’ roll in South Africa House in London who intends to vote in South Africa House during national and provincial elections. The Commission is dropping the requirement for these persons to inform the CEO of their intention to vote, and to apply for a special vote. It is now defaulting this category of citizens. If a person is registered in South Africa House and intends to vote in South Africa House during national and provincial elections, they no longer must provide a notice of intention to vote and make an application for a special vote. This is to make it easier for this category of citizens to participate overseas. The Commission is also looking to accommodate a longer lead-up period for preparations for special votes abroad in the election timetable.

The category that remains for people who still need to give notice of their intention to vote overseas is a voter registered in the Republic against a segment of the voters’ roll in the Republic. For example, a person is registered in Centurion, but they know that they will be in London on voters’ day and wish to vote at South Africa House. This category of voters must give an indication of their intention to vote at South Africa House, but also apply for a special vote. Similarly, a person registered using this example in London but knows that they will be in France on voting day and that they will vote at a South African Embassy, will need to give notice and apply for a special vote.

This is a misunderstanding and misreading by the submissions, as the Commission is trying to make special votes easier and more accessible for persons registered in a segment of an overseas voters’ roll and who intends to vote at that segment, not to give notice and not to apply for special votes.

The last category of submissions is from individuals who have indicated support or objected to the Bill without indicating specific provisions of the Bill, or advanced specific reasons for their objections/support. A review of this indicates three broad categories. The first are those who objected to the Bill on Constitutional grounds, the second are those who somehow read the Bill to be introducing some form of electronic voting, and the third that there are undisclosed financial implications that arise from an electronic Bill that the Commission is understating in the memorandum that accompanies the Bill. In response, while the submissions provided scant details, responses are preferred from what the Commission could discern as the substantive issues raised in the comments. The Commission clarifies that the Bill does not make any provision for, nor introduces any form of electronic voting. There is no additional cost to the state arising from electronic voting.

In summary, there are two clauses which the Commission is proposing to redraft from the submissions from the public participation process. It requests leave from the Committee for consideration and approval. The first is on Clause 8. The Commission indicated it is reinstating section 16(2) to still make segments of the voters’ roll available, but unlike previously, this is no longer in an unfettered access for every person to receive a copy of the segment on the voters’ roll. These are available only for specific and predetermined purposes. This strikes a balance between access to information and protection of personal information of voters.

The Commission also proposes a redraft of section 15 under Clause 8. The redraft clarifies which digits of the ID number the CEO must redact. The redaction is a parametery provision of the law, and it is not a discretion held by the CEO.  

The Commission proposes a redraft in section 47(7) of the Municipal Electoral Act to respond to the submission by the City of Cape Town Municipality to clarify that “it does not desire discretion that is impermissible.” It emphasised that it does not hold any discretion in the determination of a varied voting procedure. Those persons who vote via a varied voting procedure because they do not have addresses on the voters’ roll are still subject to the procedures set out in section 47. They must still be registered on the voters’ roll; they must present at their voting station where they are registered and present their ID document. Once they are validated, their names will be marked off the register and they will be marked with indelible ink. In summary, while this voting is slightly adjusted, it is still subject to the controls determined by Parliament under section 47 as it currently stands.

Mr Sheburi said that this concluded the responses from the Commission. He thanked the Committee and handed over to the Chairperson.

The Chairperson thanked the Commission for the presentation and for the additional explanations provided by Mr Sheburi.

Responses from the Information Regulator and the Minister

Adv Pansy Tlakula, Chairperson of the Information Regulator of South Africa, said she was accompanied by a member of the Regulator, Ms Alison Tilley, and indicated how they would proceed to address the Committee. Adv Tlakula would provide a brief background on the preceding matter. She would then hand over to Ms Tilley to provide a brief explanation and reasons on the Information Regulator’s support for the proposed amendments tabled by the Commission.

She clarified that the Regulator is a new organisation established in terms of section 39 of POPIA. It consists of the Chairperson and four members appointed by the President on recommendation by the National Assembly. The members were appointed on 1 December 2016 and hold office for a renewable period of five years. The Regulator has vast statutory mandates, one of which is to provide advice, upon request or on its own initiative, to a Minister and a public/private body on its obligations under POPIA. It monitors and forces compliance by public and private bodies with the provisions of POPIA.

In compliance with this mandate, the Regulator convened a colloquium in January 2020 with the IEC. The purpose was to assess the provisions of the Electoral Act, and to ascertain whether some provisions are aligned with POPIA. It was agreed that certain provisions of the Electoral Act must be amended, particularly section 16(2) and 16(8), which Mr Sheburi addressed. Section 16(2) originally provided that the voters’ roll can be made available to any person upon payment of a fee. The voters’ roll contains a lot of personal information of voters such as names, surnames, and address, including an ID number which is a unique identifier in terms of POPIA, as it is sensitive personal information. Anyone who is in possession of any person’s ID number is in possession of a very important aspect of personal information. The Regulator advised the IEC to assess this provision. The IEC submitted a proposed Bill to the Portfolio Committee of Home Affairs. It completely removed section 16(2) from this version, which was the Regulator’s first guide to delete this section.

The process before the NCOP included submissions that were called before it, which resulted in the amaBhungane submission. The IEC then had to reconsider the first proposed amendment to delete section 16(2) altogether. It consulted the Regulator to maintain its view on this matter, as its mandate is to protect personal information and ensure all public and private bodies that process personal information do so in compliance with the provisions of POPIA. This consultation between the IEC and the Regulator led to the proposed amendments before the Committee.

Adv Tlakula concluded the introduction and handed over to Ms Tilley to explain the Regulator’s support of the proposed amendments to section 16(2) and 16(8).

Ms Tilley commented that the Regulator supports these proposed amendments, as it agrees that the voters’ roll must in some part be made available to the public to ensure this is available as one of many steps taken to ensure the integrity of the voters’ roll. If the entire roll is made available, there is a significant quantity of personal information that includes names, ID numbers and addresses. In the Regulator’s view, the proposed amendments strike the right balance between access to information and privacy. It assessed the proposals on section 16(2b) and 16(5b) on the new idea of unreasonable disclosure of information. She said this is a good idea, but the Regulator would rather fall back on the provisions of POPIA. Where possible, it would be preferable to reference POPIA to ensure new or different terminology and concepts are not introduced, and to keep it consistent. It proposed if personal information is made available through people accessing parts of the voters’ roll, it must meet the requirements that it is not unlawful processing around POPIA. POPIA creates a framework, and if personal information is obtained, processing must be lawful in terms of POPIA.

The understanding is the acts and process in provisions sitting together would mean that only enough, and not too much, personal information is processed. This is the balancing act that POPIA tries to maintain.

Ms Tilley indicated that she has covered the bases, and handed over to the Chairperson.  

The Chairperson thanked the Regulator, and requested the Minister to add any comments.

Minister’s response

Dr Aaron Motsoaledi, Minister of Home Affairs, raised one concern. He recognised the Department’s motivation in the National Assembly on the removal of section 16(2), which was specifically to protect the personal information of individuals. He noted that Members would not like their personal information in the hands of wrong and unscrupulous people. The Committee is being called upon to balance between this and access to information. He suspects there are “suspicions that removing section 16(2) is preparing a route to cheat and make people vote who are not supposed to.” The Department will accept the changes that are being made, together with the restrictions. “It is a balance, even though it is still worrisome”.

The Minister proposed a further amendment on the second part indicated by Mr Sheburi. On the first issue on the availability of the voters’ roll, he responded that he has nothing to add. On the second one, it is to give it in a redacted fashion as far as the ID is concerned. Members are the custodians of the ID and understand what it means. The ID consists of 13 digits that are not random digits. They were systematic digits that had a language. It spoke a language and gave information. To ascertain whether someone is eligible or not for elections, two things must be assessed. He noted that all the people, including amaBhungane, who made this submission are interested in these two things. The first is age -- whether the person is of voting age, or are young kids voting for some motive. The first six digits will indicate this, which is why it cannot be redacted. This is a very important part of the information, indicating whether someone is eligible to vote or not. When it is redacted, it is an exception. The Minister proposes that the last three digits must not be redacted, because this is the second thing that indicates whether a person is eligible to vote. “The last three digits indicate whether the person is a South African or not. It is different. For a person who is a bona fide South African, it ends with 08 something: 081, 082, 083, up to 089. This is for South Africa”. If the person is a refugee resident in South Africa, they have all the rights South Africans are entitled to, except the right to vote. This Constitutional right is not reserved for refugees. These “ID numbers end in 266”. If there is a 266 ID number on the voters’ roll, there is a mistake.  

On the third category of people who are permanent residents in South Africa and who possess a South African ID but still hold citizenship of another country, they are also not allowed to vote. These ID numbers “end with 188 or 189”. There is a mistake if these last three digits are on the voters’ roll. The Minister responded that “for me it is important that when you put exemptions on redacting, you put an exemption on the first six digits and on the last three digits, as it gives all the information you want”.

The Minister concluded his response and handed back to the Chairperson.

The Chairperson thanked the Minister, and noted that the issue that had he raised was presented to the Committee in the very first briefing from the IEC on the amendments to the Bill. She requested that as Members continued to ask questions and add comments, the IEC should explain the different information being redacted and the exclusion of the last three digits.

She indicated that it was important to get information from all sectors so that Members can be briefed on the issues at play as they provide commentary and ask questions.

The Minister interjected to note a mistake he had made in his briefing. He had said “a South African ID ends with 08 something, a refugee is 266, a permanent resident who is still a citizen of another country is 188 and 189”. He corrected this and said “it is 18 something. It can be something, but it ends with 18 or it ends with 19 something, not 189”. He noted the mistake he made was saying it ends with 189. “It is 18 something or 19 something. Whereas a South African is 08 something”. The Minister emphasised this correction and handed back to the Chairperson.

The Chairperson noted the correction. She opened the platform for Members to raise comments and questions.


Mr G Michalakis (DA, Free State) agreed with the Minister on the meaning of all the different segments of an ID number. He included in the Zoom chat that even the Minister indicated that citizenship is the last three digits, the date of birth is the first six, and in the middle part, the seventh digit indicates a person’s gender. “The whole ID number, as mentioned by the Minister, is not just a bunch of random numbers. It actually gives information that is important to verify the identity of a person.”  

There are already certain mechanisms built into this draft that protects people’s information. The first one is that the voters’ roll can be given to people only under certain circumstances. Those people who receive the voters’ roll will still be subject to the requirements of POPIA. The other one is, for example, political parties who receive this information for the purposes of the election, but will still have to ensure it does everything in its power to protect the information in terms of POPIA. These two mechanisms are built into the requirements to ensure people who receive the information do not handle it irresponsibly. On these two mechanisms, why is it not enough to ensure people’s information is protected? He noted that the Minister had mentioned the need to strike a balance. After an election, the last thing the Committee wanted is for people to claim it was not free and fair because the Committee could not verify voter fraud. “This would cast dispersions on the credibility of the whole democratic system.” He is concerned that if the ability to ensure elections are verified as free and fair is restricted too much, it will create a crisis.   

The two requirements are restricting how political parties need to go about with information that it receives. Why are these two requirements not enough, as the Commission must go a step further to reduce the ID number that it must make available, since the information that is removed from the ID contains vital information for verifying the process?

Ms M Bartlett (ANC, Northern Cape) raised some concerns on the proposed amendments on page one on section 16.2. “Can the IEC elaborate on what and how access to the voters’ roll takes place?” “What does the prescribed period refer to?” She commented that the Committee will benefit from a more detailed discussion on what exactly access to the voters’ roll means to it.

The Committee is concerned about citizens’ information being abused. “There should be very good reasons for accessing the information and penalties if information is used for something else or for the wrong reasons like fraudulent activities, sometimes the cloning of bank cards, and stealing people’s identity.”  How will the IEC ensure there is a strict application process? On the penalties in the proposed Amendment, a fine or a month’s imprisonment is sufficient to deter the wrongful use of personal information of voters. This is very important to the Committee. Can it get clarity on this?

Are regulations going to be amended? What is the timeframe for getting these regulations in place? She asked the IEC to provide clarity on these matters and handed back to the Chairperson.

Mr I Sileku (DA, Western Cape) emphasised the need to safeguard democracy and to ensure elections are credible, free and fair. He said Mr Michalakis had covered his first question on why was it decided it should be the first six digits. He understands that if 2A is used and a political party requests a voters’ roll with all the digits, this will be provided based on the criteria and reasons and how the information will be used.

He said the IEC Chairperson indicated it had engaged with amaBhungane and the Regulator on its submissions. He asked why amaBhungane is not part of this meeting because it engaged with both stakeholders, but only one of them is here, which is the Regulator?

Could the IEC share with the Committee how other democratic governments protect information on the voters’ roll when it comes to the identity document?

The IEC mentioned “if the CEO is satisfied…” because discretion is given to the CEO to indicate whether it will provide or not provide what is required. On the day when the CEO decides not to grant a person the voters’ roll, is there space to appeal should an organisation or party feel that justice has not been done and there is no legitimate reasons why it was refused?  

On the timeframes, when a person put in a request for a voters’ roll, within how many days are they expected to get a favourable response? If the person does not get a favourable response and they appeal, within how many days can that appeal be heard and for the person to get this answer?

The Chairperson noted that some of Mr Sileku’s questions will be addressed.

Ms N Nkosi (ANC, Mpumalanga) welcomed the presentation by the officials and the Minister. She asked what checks and balances will be put in place to ensure the constitutional right to privacy under section 14 and the protection of political rights in section 19 of the Constitution? How will the IEC and the Information Regulator work together to ensure that the processes are constitutionally sound?

Mr K Motsamai (EFF, Gauteng) experienced technical difficulties with sound.

The Chairperson asked Mr Motsamai to turn off his camera to improve his connection.

Mr Motsamai’s connection was unclear.

The Chairperson asked Mr Motsamai to try writing his comments and responses in the chatbox, and the Committee would come back to him.

The Chairperson moved to the next raised hand.

Mr E Mthethwa (ANC, KZN) indicated the Committee wants the Department take it into its confidence on securing this information. He said: “This is a very damning information and it is information about all of us. People with new gadgets and things will try to do funny things, even through location systems. Now that there is data that contains details on IDs, and street address, can the Department ensure that citizens’ information will truly be protected in one way or another?” He said there are fears that “people can still do scams but need further information that is contained in the voters’ roll that will be given to the IEC”.

Mr S Zandamela (EFF, Mpumalanga) said the most important concern is the safety of information. How safe is the information and the data of voters?

The Chairperson thanked Members for the contributions. She raised two concerns. One was on Ms Bartlett’s comment on clause 16(2) as it existed. Did the IEC have records of who had access to the voters’ roll at all the past elections, and for what purposes? Is it aware of any abuse on voter information?

On the proposed Amendment and the IEC’s attempt to find the right balance between protection of information and access to information, she agrees that information needs to be redacted. She noted there are various checks and balances within the IEC’s processes, and it is in the interests of political parties and individual candidates who contest elections that there is transparency and all matters handled by the IEC are upheld. When it deals with citizens’ information aligned to POPIA, it should move with caution. There is concern that citizens become vulnerable when their personal information is used for the wrong reasons and in circumstances where they become victims of fraudulent activities.

She alerted Members to exercise care when it dealt with the POPIA Act. Given the current environment with COVID-19, people are exposed more to the cyber space. She gave thanks to Mr Sheburi for providing clarity, but the IEC had to provide further clarity, especially on section 16(5) where it stipulates “under exceptional circumstances the full ID number of a person can be disclosed.” Can the IEC elaborate more on this and how this process will be managed? Mr Sheburi tried to clarify this but the IEC must satisfy the Committee on how it will deal with that kind of information and what the procedures around it are, because this is a discretionary issue given to the CEO.

The Chairperson noted that Mr Motsamai’s hand was raised.

Mr Motsamai asked questions in his vernacular language.

The Chairperson thanked Mr Motsamai, and responded that his questions are noted. On the issue of observers and permanent workers, she commented that the Amendment Bill does not address this, but this is something the IEC could clarify.

She handed over to Mr Mashinini to take the Committee through the responses.

IEC’s responses

Mr Mashinini invited the Deputy Chairperson and the CEO to respond. He would then respond with the Commissioners on any gaps.

Mr Sy Mamabolo, Chief Electoral Officer, said in response to Ms Bartlett’s question, he said “it suggests that the new section 16(5) on the redaction of certain digits from the ID number is unnecessary, given the protections already available under 16(3) and 16(2). In terms of section 10 of POPIA to which the IEC is bound, there are certain principles outlined in POPIA that provide for the lawful processing of personal information. One of those principles is minimality.” Minimality meant that if personal information is processed, the person must provide “that which is squarely sufficient for the purposes for which it is intended.” For purposes of the voters’ roll, personal information is required to check whether the person is entitled to vote, so the first six digits are needed. It is required to know whether the person is a South African citizen, and whether they are registered in the correct segment of the voters’ roll. There is no other information required beyond this to verify the correctness of the votes. “Section 16(5) balances the need to disclose personal information having been processed on the one hand, and staying true to the principles outlined in POPIA, one of which is minimality.” Section 16(5) had an exception. “There may be instances where there are persons with similar names born on the same day in the same district. In these exceptional circumstances, there may be a need to fully disclose the full ID number, but this is an exception”. This exception is towards full disclosure depending on the circumstances. He noted this response to the first question.

In response to Ms Bartlett, he said that the current section 16(2) provides that any person on payment of a prescribed fee is entitled to an extract of a certified copy of a voters’ roll. This is the basis of what this section provides. He explained that any person can fill in a form, and on payment of a fee which will be discussed shortly, can request an extract from a certified voters’ roll for this ward or municipality and so on. The CEO will then have to provide that copy in line with the payments that have been made.  If the request pertains to a physical hard copy, the prescribed fees are levied in terms of the regulations on the registration of voters. The charges are R1 per page for a physical copy R2 500 for an electronic national copy, R300 for a provincial copy, R250 for a metropolitan copy, and R200 for a municipal segment. On payment of these fees and on application, any person can get a copy.

In terms of the new formulation, the IEC proposes to circumscribe section 16(2) in terms of users. This means a person must indicate the purpose for which the voters’ roll is needed. The proposition outlines three things: it has to be for monitoring the accuracy of the information on the voters’ roll, for statistical or research purposes, or for any other purpose that is prescribed which means a purpose for which Parliament can prescribe either in a law or in a regulation, and lastly that doing so would not involve unlawful processing of personal information in terms of POPIA. Doing so will not fall foul of the principles outlined in POPIA for the processing of personal information. The reformulated 16(2) balances the protection of personal information which is a right inherent to the right to privacy outlined in the Constitution on the one hand, and transparency and free flow of information on the other. He said the IEC would have to access the applications made in terms of 16(2) based on what is before it at the point of application, and assuming the applicant’s bona fides. The IEC is not guaranteed that once this copy is approved and availed to the person that it will not be used nefariously. It cannot say with a measure of certainty that once it is approved and provided it will in all cases be used for the intentions for which the Act provides. It is making a penal provision in terms of the new section 2A that anyone using the certified extract of the voters’ roll obtained in terms of the new sub-section 2 is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding one year or both. This is important because the IEC cannot guarantee that in all cases there would not be incorrect use of the information provided.

In response to Mr Sileku’s question on the appeals of the CEO’s decisions, Mr Mamabolo noted the general philosophy behind the compilation of the voters’ roll and processes related to this is as follows: “The CEO is charged with the compilation of the voters’ roll, which includes the fact that people are registered in the correct segments, they have an address, and so forth. This is why in the totality of section 16, Parliament has given the CEO the responsibility for processing the applications that are received for access to the voters’ roll, and is in line with the scheme which grants the CEO the responsibility in the Electoral Act”.

On objections to people on the voters’ roll in terms of section 15 – for example, where a person is aggrieved by the actions or the decisions of the CEO -- such persons can raise an objection to the Commission. The Commission is not involved in the compilation of the voters’ roll and in processing the applications for requests to voters. Those are handled at the level of the CEO, but should anyone be aggrieved, the next authority that can assess this is the Commission. He commented that whether the Committee feels that it is desirable to explicitly state that somewhere in section 16, is a matter that can be left to the Committee to address. In terms of the general scheme, regarding decisions of the CEO vis-a-vis the voters’ roll, objections can be raised with the Commission.

On the issue of timeframes, this is a matter that must be handled carefully, as it depends where in the electoral process a person is. If the request is given a day before there is a general registration of voters, or if in terms of section 16(2), the application is made a few hours before an election is taking place, the response time in these circumstances would not be the same. If the Committee is minded to regulating the timeframe, awareness of the different phases of the electoral process is going to be important. It is best to provide a broad framework to ensure there are no unreasonable delays on the part on those charged with this responsibility. A hard and fast timeline may prove to be counterproductive, because it may work faster if there is no major election event on the horizon, and it may be slightly more difficult when it is very close to a major electoral event. There must be a broad timeframe, coupled with an injunction not to unreasonably delay the provision if the application is successful.

In response to Ms Nkosi, he said the current formulation of section 16(2) and 16(2A) is a result of a delicate balancing act. The two competing rights are very difficult to balance because the IEC’s number one proposition would have been to repeal, as it did in the initial iteration of the Bill. The IEC now realises that life is not that simple in a Constitutional democracy. Rights are competing, but it believes that the current formulation provides for relatively enough measures to secure the unnecessary disclosure of personal information on the one hand, as well as guaranteeing the political rights of voters and the need to have a free flow of information, as well as abide by the Constitutional imperative for transparency in all spheres of state business. The proposal as it stands has tried to balance these competing rights. It is not an easy exercise, but the proposition on the table tries to ensure a constitutionally compliant dispensation. He noted that this is the point of what is presented before the Committee. The IEC believes it to be constitutionally compliant.

In response to Mr Motsamai’s use of the word “observers,” the context of the question appears to mean the voting station staff -- are they permanently employed, and could this be changed? This matter is outside of the subject matter of the Bill. The short answer is that persons working inside voting stations as voting station officials are not permanently employed. Each time there is a new electoral event in the country, these people are recruited anew. The basis of this recruitment is on agreed recruitment and selection criteria which have been discussed with the national Party Liaison Committee. Once recruited, the list of prospective officials to be appointed is provided to the municipal Party Liaison Committees. If there is anyone that any party believes is not compliant with the criteria, an objection can be raised and considered by the Commission.

Securing information is very important, given what is happening throughout the world and within the country. This is important from the point of view of cyber security, because this data is stored in an electronic format by the Commission. The IEC has taken measures to safeguard its Information Technology (IT) networks, and it is using monitoring tools on its system to detect any undesirable infiltration of the system to ensure that the network is not breached and the personal information of voters is not stolen and used nefariously. This area of its work is a continuous business, because there are new methods that people with nefarious intentions are inventing almost daily. It is therefore a continuous process of improving the security of the network. The IEC is constantly working to maintain the modern security protocols that are applied in industries.

On the question of past records and the number of applications raised by the Chairperson, he said that over the past five years there has not been an avalanche of applications in terms of 16(2). Ahead of 2019 elections, there had been one application which the Commission was able to discuss and make an arrangement with the applicant. In this circumstance, an arrangement was made that the personal details of voters were not disclosed. With the provisions of section 16(2) as it currently stands, if the applicant was unreasonable, they could have gone to the judiciary to vindicate their right of access. In this instance the IEC was fortunate to have found mutual accommodation.

In response to the Commission’s awareness of abusers, he said the IEC received complaints on the way political parties have sometimes used some details from the voters’ rolls by enriching this data with other data that was not necessarily provided by the IEC, such as cell phone numbers, and then sending people SMSs and cold calling people and so on. There are other enrichment processes that the political parties utilize which are used to make campaign messages to people. Some people find this to be unwanted, and complaints are then received.

Mr Mamabolo said that he had addressed the bulk of the questions, and handed over to Mr Sheburi to make additional comments.

Mr Sheburi emphasised that the IEC understands its role to be that it is under obligation to process personal information of voters in a manner that advances the principles in POPIA. For this reason, it must always strive for a balance of minimality, as long as it enhances the prescribed disclosure for which that information is sought. Even where it redacts information on the voters’ roll for purposes of election day, the voters’ roll placed at the voting station will have the full particulars of voters. He explained that the voters’ roll will have the full ID number of voters at the level of the voting station.

In response to the Minister’s comment on making additional information available, he said the IEC’s approach has been that it accepts that the data base is the National Population Register. On its part, before it enters a person on a segment of a voters’ roll, it runs a validation to check whether the person is a citizen, is of voting age, and that they qualify to enjoy political rights. They are then placed on the segment of the voters’ roll on this basis. The IEC is not averse to considering disclosing more digits, but it is satisfied with the six because it does not determine citizenship, gender, and those other things. These validations are already made before it enters the person’s name and details on the segment of the voters’ roll.  

Mr Mashinini asked if there were other inputs from the Commissioners participating.

Mr Mosotho Moepya, IEC Chair of the Electoral Management Committee (EMC), referred to the last issue Mr Sheburi sought to address on the proposal by the Minister to consider, which dealt with considering more digits than the first six and last three digits, and there was a suggestion that the seventh digit which deals with gender. He said the thought that must be seriously considered is that when this information is provided, it is not an issue for the IEC to determine whether someone is a citizen or not, whether they are alive or not, and so forth. These are matters that are vested with the Department of Home Affairs. This is something that must be reflected upon, as it may raise issues that are not necessarily issues that can be resolved by an Electoral Commission. These are matters that must be resolved elsewhere. To the extent that they are not matters within the authority of the Electoral Commission, how did that then affect the information that the Electoral Commission harvested from voters? Mr Moepya stressed that Members had to reflect on this.

The question on measures around the voters’ roll arises at a number of layers. At the level where the Electoral Commission goes out to register voters, it takes exceptional measures to ensure that information is safeguarded. For example, when a voter’s information is scanned on a scanner at the registration station, that information is encrypted. Even if this equipment is lost, it will never be used because it requires decryption and encryption software. The same applies in its storage and processing, amongst other things. There are other layers of security, but because it is security, it is not a matter that can be freely talked about. The point is that at this level of safeguarding people’s information, there has never been a breach of this information. It is satisfied with the measures that it takes to safeguard the information of voters on the voters’ roll.

He noted Mr Mamabolo had attempted to respond to Mr Sileku’s question on the timeline for the processing of a request by the CEO, and on the appeals process. In considering the scheme of the Electoral Act, any objection to the voters’ roll is adequately dealt with in section 15, which is not a subject of any amendment. Whether a voter is correctly registered, whether they should be on the voters’ roll or not and so forth, this process defines the period because it anticipates that such an objection will in fact locate the objection within a given timeframe in the election timetable. It requires that the CEO act immediately and that whenever a person has objected, if unsatisfied with the CEO’s response, they can appeal to the Commission and the Commission must decide that appeal within 14 days. Once the Commission has decided on the appeal within 14 days, and if it has overturned the decision of the CEO, the CEO must implement the decision of the Commission within three days. Mr Moepya submitted that this provision is adequate to deal with issues concerning an appeal or issues that may arise because of someone looking into the voters’ roll.

On the issue of the voters’ roll remaining open at any point for any person who wants to obtain that information, the challenge is that this gives an impression that it is only raised prior to or during an election. Even when the IEC goes to an election and does a voters’ registration exercise and campaign, it points out that persons must check their details on the voters’ roll, and those who want to object or correct the voters’ roll must do so. At the point where the voters’ roll has been certified, that voters’ roll must now by law be used for that election. Mr Moepya explained that it is like fixing a plane in mid-air. Once it has taken off, it is gone, and an election must be held. This is an important consideration, because an election is sensitively tied to an election timeframe which is tied to a Constitutional imperative.

Mr Mashinini asked if there were any other contributions from the Commission.

He finalised the responses to Mr Sileku’s question on why only one stakeholder was present, meaning why the Regulator was present and not amaBhungane.

The Chairperson interjected, saying that she would address this question. The Regulator was here at the Committee’s invitation. She noted the misunderstanding, as Members must understand the context of the Regulator, which is an Independent Statutory Body and is established in terms of section 39 of POPIA. She commented that Adv Tlakula had tried to explain this matter. Members should take note that it is accountable to the National Assembly, and not just a stakeholder making submissions into this process. Its presence is to enrich the understanding of Members as they deliberate on the Amendments to this Bill. She handed back to Mr Mashinini.

Mr Mashinini responded to Mr Sileku’s question on the comparative analysis of the practices involving the IDs. This information would not necessarily be relevant in South Africa’s context because the landscape varied throughout the world. In some countries, the issue of IDs is never even considered. A person can simply walk in and provide their name, and they are given a ballot to proceed. In other countries, there are no IDs. For example, most of the continent has a big challenge with this issue. People are just given a voting card or a voting ticket. From the inception in South Africa, because of the existence of the Population Register, the compilation of the voters’ roll is made by drawing the data from registered voters and checking it against the Population Register. Most of the countries in Africa do not have a Population Register, so the basis to verify voters is even more difficult, as it relies only on a voters’ ID, which can be fraudulently produced. In this instance, South Africa is fortunate that its voters’ roll is underpinned by impeccable data, which is with Home Affairs.

In response to Mr Motsamai’s comment on loan sharks, he said Mr Motsamai had indicated there is a problem during elections, where there are members of the public who go to loan sharks and for them to receive the financial loan, they have to surrender their IDs. While this issue is not part of the Amendment, the IEC acknowledges the existence of this problem, which is illegal and is a matter that is between the Commission and the political parties. It is constantly active to try and see how these situations can be averted. The IEC works with the security cluster and this makes it possible to get it reported so that action can be undertaken to deal with it from a criminal point of view.

Mr Mashinini said that the IEC has no guarantee on how the information it provides legitimately to those who meet the requirements, is used lawfully. The mechanisms discussed today are measures that, from a technical point of view, approximate the optimum measures that could be put together as a country to balance the two imperatives -- one being for the IEC to comply with POPIA, and to comply with the Constitution that there must be transparency on the activities undertaken by the Commission. The IEC maintains that this exercise has optimally unpacked and examined the issues submitted to Parliament. It had applied itself to the best of its ability, and it recommends that the NCOP and the Select Committee look at its submission favourably. He thanked the Chairperson for the platform, and handed over to her.

The Chairperson thanked the Commission for its responses, and asked Members if there were any additional comments and follow up issues.

Follow-up discussion

Adv Tlakula asked to respond to some of the questions.

She said she agrees with the presentation by the IEC, and clarified that this support is not because it is her former colleagues. Her support is because the IEC has really put the protection of personal information at the heart of its work. It has informed itself on POPIA, which is what all the Members must do.  

In response to Mr Sileku’s comment on benchmarking with other countries, and while she agrees with Mr Mashinini’s response, she commented that the issue of data protection or the protection of personal information is a new issue. Data has become so vulnerable to monitoring that some people refer to it as “the new oil.” Everyone must ensure it implements mechanisms to protect the data that is collected. The IEC has looked at how other countries deal with this matter. For example, in Ecuador, a redaction is done as proposed in South Africa. In the United Kingdom (UK), the voters’ roll is only made available for specific purposes stated in the law. In reference to the UK’s law, it makes the voters’ list available only to statutory bodies, and not to anyone else. Australia is different, because registering and voting is compulsory in terms of the law in Australia. Its law has a similar provision to the one that is being recommended. It states that the roll can be given for any purpose in connection with an election or referendum, for monitoring the accuracy of information contained in the roll, or for any other purpose that is prescribed. The Regulator is doing what other organisations throughout the world are doing.

Since the IEC is a public body, it is obliged to comply with all the requirements of the POPIA. It must be alert. One of these requirements is that anyone who protects personal information must ensure it implements reasonable technical and organisational measures to protect the integrity and confidentiality of the information against, among others, unlawful access. Cyber criminals are very busy. Many organisations have been breached, together with those that maintain it has very secure systems. This is the reality. The Regulator cautions the IEC to remain alert and ensure that its security measures are intact.

In response to the question on how the Regulator works with the IEC. Adv Tlakula noted that the fact that it has come to this point is evidence of the cooperation between the two organisations. The fact that it raised the issue of compliance of the Electoral Act with the protection of personal information is an issue that preoccupied the Regulator since 2019 -- not only on the use of the voters’ roll and the protection of information on the roll, but also the protection of personal information by political parties. Political parties must ensure they protect the personal information of voters when it uses this information for campaigning purposes. This is an issue that the Regulator has discussed with the IEC and with political parties to ensure that everyone complies with this new provision of the law.

The Chairperson thanked Adv Tlakula. She asked Members to raise follow-up questions and concerns.

Minister Motsoaledi commented that he does not want to belabour the proposals made. He indicated that Mr Sheburi had noted his submission on redacting and exempting the first six numbers. The fact that he had added the last three numbers showing nationality must also be reflected, is because he still believes it is important as an identification of who is eligible to vote. He noted that Mr Moepya indicated that it is the job of Home Affairs to give information to add on the voters’ roll. He alerted Members that he is in charge of both Home Affairs and the IEC, and for this reason he wants a “seamless flow of information.”

He clarified that his proposal was to “add another firewall to secure the integrity of the voters’ roll.” To him, this is extremely important. He did not want to assume systems in Home Affairs are so secure that nothing can change. As they were speaking, he had put in the public arena a proposal on a new identification -- a new identity management system in the country which is out for public participation. In this system, one of the proposals is to move from the biometric system currently in use for security reasons. The proposal is to move from the Home Affairs National Information System (HANIS), where the biometrics are stored for the IDs on the National Population Register, which only provides for a fingerprint and a photo. The Department realised that this is never enough for security, especially in the cyber world which Adv Tlakula referred to. It is moving to a new system called the Automatic Biometric Information System (ABIS) where it is adding Iris recognition to recognise people through the Iris in the eye, as well as facial recognition to recognise people through their face. All of these are firewalls that are added for the integrity of identity. He clarified that when he proposes the last three digits must be added, he is adding the last firewall to identify that this is a real person who is eligible to vote.

The Chairperson thanked the Minister. She explained that the decisions on this matter lay with the Committee at the end of the day. The issues raised by the Minister were around being an eligible voter and the issues that are being looked at, as well as the inclusion of the last three numbers which will be considered by the Committee. She asked the IEC if it wanted to add comments on this matter.

Mr Mashinini asked if the IEC Vice Chairperson, Ms Janet Love, wanted to make a comment.

Ms Love responded that she presumed Mr Mamabolo had covered this matter by indicating that from the IEC’s point of view, if this is something the Committee is minded to do, then there is no problem from the IEC’s side. This formulation will have to be finalised by the Committee.

The Chairperson commented that this clarifies the matter. She presumed that since there were no more follow up questions, Members were satisfied with the clarity that had been provided. She recognised the difficulties of trying to balance competing rights.

The Chairperson noted the Committee is currently looking at Amendments to Clause 8 in terms of section 16(2) and the addition of 16(2A), as well as section 65 and Clause 20, with which Members did not raise any issues.  On section 16(5) in Clause 8 on the redaction of the ID number, the proposals raised by the Minister makes a lot of sense and the Committee can look into the rewording of the proposed amendment to include the last three digits”. She asked the Parliamentary Legal Advisor, Ms Sueanne Isaac, if she had any comments to add on the proposed amendments to the Bill.

Ms Isaac said the issues were covered in depth, but the main issue is on section 16(2) on how to find the right balance between the right to access to information and to protect personal information. The Committees’ comments and concerns were noted. The issue on the POPIA legislation is to ensure that whatever information is given is necessary for the purpose related to the election process, so that whoever gets the information is using it to verify details and for no other purposes. The date of birth and the issue of citizenship is noted, and will be considered with the mandate of the Committee as to how best to serve both the right of access to information and the protection of personal information.

Ms Lisa Naidoo, Senior State Law Advisor, responded that she supports Ms Isaac’s comments on section 16(2). She indicated that she and Ms Isaac, based on the direction of the Committee, will work together with the IEC to draft a provision for this, and to redraft and incorporate whatever sentiments the Committee approves today.

Mr Michalakis noted there is broad agreement on the disclosure of the first six digits, and the last three. He asked what is in the remaining four figures in the ID number that contains such important information that this cannot also be disclosed. There is this whole issue of formulating a specific section of the Bill to not disclose the four least significant figures of the ID number. It might as well disclose the whole ID number, because it contains such important information. Those four figures in the middle are actually the four that contain the least important information. If the first six and last three digits are disclosed, then the most important personal information of a person is disclosed. Why formulate a very complicated section instead of just adding regulations to ensure the information that is disclosed is used for the correct purpose?

The Chairperson responded that Mr Michalakis is taking the Committee back, because the entire discussion was around competing rights between access to information and trying to protect personal information. The issue of redacting the ID was to deal with the protection of personal information and to try to strike that balance between these competing rights. She allowed the Commission and the Regulator to briefly respond.  

The Minister interrupted the Chairperson, and said that the correct people to respond were the Department of Home Affairs, and not the IEC or the Regulator. He said his response is for the Members to educate the public, and that this is important to him. Digit number seven was not mentioned because there is no relevance to gender in terms of eligibility to vote. This is why it was left out altogether.

In response to Mr Michalakis’ comment on digits that are less important, he said this is not true. There are many South Africans who share the first six numbers. The last three numbers are also shared by many South Africans because they refer to nationality. There are 57 million South Africans that share the last three numbers. The Minister emphasised that the issue that identifies exactly who you are is the middle digit which the Member had indicated is less important. This will never be the same for any one individual -- even for identical twins. This is the number that verifies a person. Therefore, when these numbers are redacted, no one can actually identify the person. He clarified that this response is to assure Mr Michalakis that the least important numbers are not excluded, as it is actually the most important in the identification of a human being in South Africa.

The Chairperson thanked the Minister, and asked Mr Michalakis if he wanted to respond.

Mr Michalakis thanked the Minister for the valuable education. Given the importance of the middle digits, as explained by the Minister to verify the identity of an individual, he responded that it is important to disclose all 13 digits.

The Chairperson thanked Mr Michalakis for his response.

She noted the concerns on access to information and the protection of personal information in the proposed amendments. The issue of Constitutional compliance is another critical matter in this case. Going forward, the Committee will get the Parliamentary Legal Advisor and the Office of the State Legal Advisor to liaise on further requirements for section 16(5) on the ID number. At the next meeting, the Committee will consider the recommendations that were made in terms of the Bill.

The Chairperson thanked Members, officials and the Minister for their participation, the information that was shared, and the clarity it provided.

The meeting was adjourned.

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