The Committee held a virtual meeting to deliberate and consider the proposed amendments to the Electoral Laws Amendment Bill (the Bill).
The Independent Electoral Commission (IEC) raised two concerns on the proposed amendments in terms of Clause 8 and 20. The Parliamentary Legal Advisor, the Office of the State Law Advisor, and the IEC briefed the Committee on these concerns and the additions to the proposed amendments.
The Committee noted the urgency of considering matters such as constitutional provisions, competing rights, and alignment of legislation.
Members were divided on whether to adopt the Bill in this meeting.
The issue of time was raised as a serious concern as some Members claimed that not only was the Bill containing the IEC’s additional concerns sent the morning prior to the meeting, the urgency of the Bill calls for further deliberations and a debate in the House. Some Members objected to more deliberations as they claimed that the Committee is pressed for time and that it has engaged in three sessions with the IEC and the legal advisors on this matter.
Despite considerable debate amongst Members, Clause 8 and 9, as well as the draft Committee Report adopting the Bill in its entirety, were duly adopted.
The Chairperson welcomed Members. She confirmed that there are sufficient Members to commence the meeting. She welcomed the Parliamentary Legal Advisor, the representative from the Office of the State Law Advisor, and Mr Sy Mamabolo from the IEC. She extended a special welcome to Mr X Ngwezi (IFP, KZN) and asked him to turn on his camera to greet the Committee. She informed him that he was part of the Select Committee on Security and Justice and introduced herself as the Chairperson. Members came from various provinces, which Mr Ngwezi will get to learn in time. She assured him to feel welcome.
Mr Ngwezi thanked the Chairperson for welcoming him.
The Chairperson thanked Mr Ngwezi and told him that he will get to know Members as the meeting proceeds. She said that it is unfortunate that the Committee cannot meet him in person, but she is certain this will happen in due course.
In terms of the last meeting, the Committee deliberated on the presentations made by the IEC in response to the comments and submissions of stakeholders. It particularly dealt with the amendments to Clauses 8 and 20. Amendments to Clause 8 essentially dealt with competing rights in terms of the protection and safeguarding of personal information of voters, while ensuring access to information. The Committee tasked the parliamentary legal advisor together with the State Law Advisor to finalise the proposed amendments to the Bill.
Members were sent the proposed amendments and a draft Committee report.
The Chairperson pointed out that it has come to her attention from the parliamentary legal advisor that it had further discussions and the final amendments was unfortunately sent to Members the morning of the meeting.
She invited Ms Sueanne Isaac, Legal Advisor: Parliament of the Republic of South Africa, to take Members through the proposed amendments. Ms Isaacs was also tasked with addressing the final document.
Briefing by the Parliamentary Legal Advisor on the final amendments to the Bill
Ms Isaacs greeted Members and officials in attendance. She waited for the correct presentation to be shared with Members on screen.
Mr M Dangor (ANC, Gauteng) interjected and greeted the Chairperson. He expressed his apologies stating that he must leave at 11h30 to attend a Select Committee on Transport meeting.
The Chairperson noted this and welcomed Mr Dangor.
Mr Dangor pointed out that he has spoken to programming about the challenge of having Whips meetings happening at the same time as Security and Transport meetings.
The Chairperson expressed her sympathy saying that she hopes the issue will be resolved soon.
Ms Isaacs drew the Committee’s attention to the correct document that was ready and asked the Chairperson if she could proceed with the presentation.
The Chairperson allowed Ms Isaacs to proceed with the briefing.
Ms Isaacs noted that the Chairperson had already indicated that the list of proposals was sent to Members. However, between the past two days, she said that there were further discussions between herself, the IEC, and the State Law Advisor.
The IEC raised two concerns on the proposed amendments. She clarified that she would explain these concerns and the efforts to try and accommodate them.
IEC’s concerns on the proposed amendments
Ms Isaacs referred to the first document. In it, it was initially suggested to include a definition for “independent candidates” in Clause 8. There is intention to insert the phrase ‘independent candidates’ in light of the Constitutional Court judgment. However, on subsequent consideration and discussions with the IEC, it was suggested not to include a definition for this phrase at this stage. This definition relates to the local government level, and the deliberations on national and provincial level are still ongoing. “The suggestion is to remove this definition and leave independent candidate undefined until such time as Parliament completes its processes”.
The next proposal deals with Clause 8 to amend section 16 of the Electoral Act. This clause was discussed in the main last week which deals with access to information. Initially the Clause suggested that the Chief Electoral Officer (CEO) must be satisfied that three requirements are met prior to information being given. This is to align it with the Protection of Personal Information Act (POPI). She noted that the amendment was refined in terms of wording, but it is still the same intention. The intention was to redraft it in a simpler way. The proposed version will now read as follows: “the CEO must provide a certified copy, or an extract from a segment of the voters’ roll as it exists at the time, to any person who has paid the prescribed fee. If the CEO is satisfied that:
- the person requires that information
- to monitor the accuracy of the information in the voters’ roll for statistical or research purposes
- any other purpose that is prescribed
- Provided that the information would not involve the unlawful processing of personal information in terms of POPI.
Ms Isaacs referred to the green highlighted text on the document. She clarified that the IEC raised another concern on the phrasing of Roman numeral (i). It was concerned to state that the person requires the information to monitor the accuracy of the information in the voters’ roll may lead to different interpretations. It believes that it may give the person the impression that they can still contest the accuracy of the voters’ roll even when the dates for objections have closed. She said that this concern was taken into consideration. As the IEC will be responsible for implementing the legislation, this was a way to accommodate it. She clarified that the portion highlighted in green is the new proposal by the parliamentary legal advisor and the State Law Advisor. Instead of saying: “to monitor the accuracy of the information in the voters’ roll”, it will now state: “to monitor the voters’ roll for election purposes”. She said that this is to remove any doubt that this is not a further method that anyone can use to object. Objections are still done in terms of section 15 of the Electoral Act. She noted it hopes this will assist in removing any confusion on the meaning of this sub-clause.
Clause 2A deals with the insertion of an offence where a person uses the information obtained under subsection (2) for any purposes other than those listed. She clarified that this was reworded. Instead of using the phrase “a certified copy of, or extract from a segment of the voters’ roll”, it is now referring to it as collective information. It now states: “any person who uses the information obtained under subsection (2) is guilty of an offence and liable on conviction to pay a fine or imprisonment for a period not exceeding one year or to both a fine and such imprisonment”. She noted that these are basically just drafting changes.
The amendment to sub-clause (3) deals with the intention to insert the phrase “independent candidates”. When the legal advisors and the IEC looked at this Clause, it realised that the current wording of the Act refers to registered political parties. However, the Act only defines only registered parties. For the sake of consistency, it is best to use what is defined. A registered party is a political party registered with the IEC, but these phrases should not be used interchangeably. It is best to stick with the defined version. The new section will still include “independent candidates” but will now use the correct defined phrase. Sub-clause (3) will now read as: “notwithstanding subsection (2), the CEO must, on payment of the prescribed fee, provide copies of the voters’ roll, or a segment thereof, which includes the addresses of voters, where such addresses are available, to a registered party [political parties] and an independent candidate contesting the elections”.
Sub-clause (4) is basic redrafting to make it simpler. Instead of referring to the voters’ roll addresses, it will use the phrase “the information”. This sub-clause deals with access of the voters’ roll to political parties, and now independent candidates. The phrase “political parties” is being used and it will carry over from subsection (3) the word “registered party”. Sub-clause (4) will now read: “the information obtained in sub-clause (3) may only be used by a registered party and an independent candidate for election purposes and any person using such information for other purposes is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding one year or to both a fine and imprisonment”.
Sub-clause (5) dealt with the redaction of the Identity Document (ID) numbers. This was a contentious clause because it needed to be aligned with POPIA while balancing the right to access to information. Originally, the clause stated that the ID number must be redacted, and only the six digits that indicates the voters’ date of birth must be given. Ms Isaacs noted that in the previous meeting, “the Department suggested to the Minister to include details of the citizenship” to make it easier to verify if the person is eligible to vote. This clause is proposed considering this suggestion.
Instead of stating in the negative that “you may not give the ID number”, it is stating “what must be given” which is now stated in the positive. The proposed version will read as: “for the purposes of subsection (two) and (three), the CEO may only provide the digits of the ID numbers of voters, which indicate the voters’ date of birth and citizenship, except where the person who requires the information satisfies the CEO that:
- exceptional circumstances require that additional digits of the voters’ ID number be disclosed; and
- Providing that information would not involve the unlawful processing of personal information in terms of the POPI Act of 2013”.
On sub-clause (5a), instead of stating “the full ID number” it is now stating “additional digits”. This is so that the IEC CEO will be able to release only the additional digits that are necessary to differentiate between two voters with the same name. Ms Isaacs clarified that “where it is necessary, the full ID number will be released but where it is not, perhaps one or two digits can differentiate and this will be done in this instance”. The reason for this is based on the main principle of minimality in the POPI Act where personal information must be protected, and only what is necessary must be further processed.
Clause 20 deals with the amendment of s47 of the Local Government Electoral Act. There were no further changes to the IEC’s proposals in the last meeting. She said that “the IEC’s proposal was to accommodate the concerns raised by the City of Cape Town where the different voting methods must not be different from that contained in the Act”. She noted that the IEC’s proposals adequately address the City’s concerns.
Clause 7 will still be an amendment proposed by the Committee and it will read as follows: “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: Provided that if such voter’s place of ordinary residence is located outside the relevant—
- ward on whose segment of the voters’ roll that voter’s name appears, the voter concerned may not vote in the ward election contemplated in s22(1)(b) of the Local Government: Municipal Structures Act, 1998 (Act No.117 of 1998);
- local or metropolitan Municipality on whose segment of the voters’ roll that voter’s name appears, the voter concerned may not vote in the election contemplated in s22(1)(a) or the ward election contemplated in s22(1)(b) of the Local Government: Municipal Structures Act, 1998 (Act No.117 of 1998);
- district Municipality on whose segment of the voters’ roll the voter’s name appears, the voter concerned may not vote in the elections in the district contemplated in s23(1)(a) of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998)”.
Ms Isaacs noted that these are the amendments that were discussed in the Committee meeting of the previous week. It tried to capture the instructions of the Committee and the discussions. She concluded the presentation and handed back to the Chairperson.
The Chairperson thanked Ms Isaacs. She requested the State Law Advisor to give an indication if she wishes to add further commentary.
Comments from State Law Advisor
Ms Lisa Naidoo, Senior State Law Advisor, thanked the Chairperson. She provided further information on the decision to remove the definition of “independent candidates”. She explained that “the history behind it is the Constitutional complaint, which ruled to not include individuals who are not affiliated with a political party to contest elections, made the Electoral Laws Act unconstitutional”. These amendments to the other sections, together with registered political parties, it added “and independent candidates”. When the issue of a definition for independent candidates was raised, with the IEC being line function and best suited to define this, it posed a problem. This is because there needs to be further policy formulation and consultation around a precise definition. In the current formulation, it was decided to exclude a definition for independent candidates and that it can come through at a later stage after proper consultation and policy formulation.
On the IEC’s concern with s16, she noted that initially s16(2) was omitted. Section 16 needed to be aligned overall with the POPI Act and access to information. The IEC’s concern, as noted by Ms Isaacs, is that it now provides another category for objections. Even though all sections should be read together, s15 is very specific as it deals with objections and s16 deals with access to information. She said that “from the side of the State Law Advisor, when these are interpreted, there is no real clash or overlap of intentions where s16 is bringing in a new category for objections”.
Ms Naidoo indicated that the current formulation is fine and reference to “monitor the accuracy” has been omitted and rather left it to “monitor the voters’ roll”. She noted that the IEC seems to have accepted this.
She emphasised that from her office, it seems to not be a real category because this would have been inserted under s15 objections and how this process should play out. She concluded her responses and handed over to the Chairperson.
The Chairperson noted the presentation. She asked if Members wanted to raise questions.
Mr. E Mthethwa (ANC, KZN) confessed his confusion with the concept of “accuracy”. What was the initial intention behind the word ‘accuracy’ because it is now being removed? How does the IEC think it would it have caused a problem in the Act?
“Is the election not political?” Why must political parties be removed? Even though political party candidates are independent, they are contesting a space of politics. He further noted his confusion with the removal of political parties.
Mr G Michalakis (DA, Free State) focused on one concerning part of the Bill. He responded that the Committee must make time to discuss this properly as there is still time for the Bill.
On the disclosure/non-disclosure of the ID number, the Committee did not reflect on what it wants to achieve through this clause. If it is to safeguard personal information, he noted his “serious doubts on whether this clause achieves this purpose the best that it possibly can”. For example, he said that there is no indication as to what happens to a person’s information provided to a station captain of the IEC on local level after the elections. How is the full printed out voters’ roll disposed of after elections? The information can get stolen in this process. It is more likely that hackers will hack the Department of Home Affairs or the IEC who both have the full voters’ roll. He exclaimed that in both instances, this clause does not address this matter, so the problem does not go away.
In the previous meeting, Minister Motsoaledi said that “every single digit of the ID number is important to verify the eligibility of a voter and his identity”. Mr Michalakis said that the principle of minimality becomes impossible to apply fairly because every single digit is important. The Minister himself answered that. This clause will cast serious doubts on free and fair elections.
The Committee’s focus is wrong. It is focusing on concealing information that is needed for free and fair elections. It must rather focus on regulating the way in which all these entities: political parties, independent candidates, the IEC, Home Affairs; all of them go about responsibly in such a way with the information that it will not pose a risk to the public. Instead of this clause, the Committee must reflect on how it can better ensure that the entities that receive the information act in a responsible way. It must reflect on whether this is the best way to achieve what it seeks to achieve. Mr Michalakis maintained that the Committee can do better.
Given this, the Committee should be afforded a chance to debate some of these issues as there is still time to process the Bill. The proposal was for the Committee to consider the Bill today for adoption but, in light of the fact that it only received the most recent version this morning, it could hold off for a bit on doing it today, so that Members can have proper time to consider and apply our minds to the latest version.
Mr I Sileku (DA, Western Cape) noted most of his concerns were covered by Mr Michalakis. Could the IEC elaborate on what it regards as “exceptional circumstances” where the full ID would be disclosed?
Mr X Ngwezi (IFP, KZN) greeted all Members and officials and informed Members that this is his first meeting. He referred to the clause in the presentation on the issue of the voters’ roll being given to independent candidates. In his view, the public has too much interest in the running of elections in South Africa. For example, civic organisations may not have registered for elections such as The South African National Civic Organisation (SANCO), and any other ratepayer’s association, but it may want to comment. He proposed that the Committee could include a clause because any South African institution cannot refuse this information. This is not constitutional if other interest groups are excluded.
He pointed out his uncertainty on whether the issue of voters illegally crossing the borders, a day before or on election day, to vote and then head back to their country is included in the Bill. For example, in the areas of KwaZulu-Natal next to the borders such as Pongola, Ingwavuma, uMhlabuyalingana, and the Mpumalanga area. It is time the Committee addresses these issues of double citizenships because he is uncertain whether Home Affairs finalised this matter. There are attempts by the Southern African Development Community (SADC) region to address this, but this is still ongoing.
Mr Ngwezi is satisfied with some of the amendments presented today.
Mr S Zandamela (EFF, Mpumalanga) requested clarity on the “exceptional circumstances” where the full details of the ID are disclosed.
Mr T Dodovu (ANC, North West) said that his concerns are mostly covered by Members’ responses. He said that his question is on the linkage between this amendment and the amendments made in the Municipal Structures Act. The Committee had many engagements with the IEC on this matter last year. He asked whether it is compatible in this regard.
Ms M Bartlett (ANC, Northern Cape) indicated her support on the Bill with the recommendations. She noted Mr Dodovu had covered her questions.
The Chairperson responded that some of the aspects that were raised here were covered in the deliberations last week. She requested the IEC to provide further clarity on certain matters raised and to elaborate on the issue of exceptional circumstances.
In response to Mr Michalakis’ concerns, she noted that this was dealt with considerably in the last meeting. It dealt with the POPI Act and hence the redaction of such information.
She invited the CEO Mr Mamabolo to respond to some of the questions including those raised by Mr Dodovu and Mr Ngwezi.
Comments from the IEC and the State Law Advisor
Mr Sy Mamabolo, Chief Electoral Officer, Independent Electoral Commission, thanked the Chairperson for the opportunity and greeted all Members and officials in attendance. He told the Committee that he is joined by Mr Masego Sheburi, Deputy CEO, and the IEC delegation.
At the outset, the IEC wants to be categorical that it supports the redrafting undertaken by the parliamentary legal service in conjunction with the State Law Advisors. It believes the redrafting will give the Bill greater clarity than the previous version by the IEC.
In response to the question on political parties and registered parties, Mr Mamabolo clarified by stating that this is only to ensure consistency between the definitions and the body of the Act. The parliamentary legal service used concepts that are defined in the Act, rather than to introduce concepts that are not defined in the Act. The removal of ‘political party’ substituted by ‘registered party’ is to achieve this so that concepts that are defined in the Act can ease the reading of the Bill. It is to improve the usability and readability of the Bill. Political parties remain the cornerstone of the participatory process in elections. It is not being removed; the substitution is simply an alignment for better readability of the Act.
The issue on accuracy relates to the purpose of s16. He clarified that s16 is intended to provide copies of the voters’ roll to various categories of people and institutions. This is why its heading stipulates “publication of the voters’ roll”. This is a voters’ roll that has already been certified, and people are entitled to it in terms of the provisions that follow. He said s16 is not intended to introduce a new class of objections. Its purpose is to provide copies of voters’ rolls to certain categories of electoral stakeholders.
Mr Mamabolo noted the question on the public’s interest in elections and their entitlement to a copy of the voters’ roll. He agreed that this is what s16(2) is doing but linking it to a purpose which is clarified under s16(2A) (i)(ii)(iii). It acknowledges that everyone is entitled to this information if they fulfil the purposes defined in the Bill. This is not merely for political parties. Section 16(2) deals with everyone else, s16(3) with political parties, and so on. He clarified his statement by saying that s16 in its totality is not intended to deal with objections, however this does not mean there is no framework for objections. There is a framework for objections which is in s15. Any person, who believes there are inaccuracies, irregularities, or any persons that should not be in certain segments on the voters’ roll, are not without a mechanism to vindicate this. This mechanism is available and is extant in s15 of the Act.
On the redaction of certain digits of the ID number in s16(5), Mr Mamabolo said this is because a voters’ roll is needed to verify if people on it are qualified to vote. There are two broad constitutional qualifications to verify this: the first is age -- the person must be 18 years or older to vote. The second qualification is citizenship – the person must be a citizen of the Republic. This information is needed to verify these facts and s16(5) as it currently stands addresses this. Further information is not needed to make these determinations such as the gender of the person or the sequential number after their date of birth. He emphasised that this information is irrelevant for electoral purposes. The Constitution stipulates that a voter must be 18 years old so the IEC must enable this verification process by availing information. He indicated that Parliament must also have laws that are not contradictory. In the POPI Act, Parliament already indicated there are principles against which an assessment must be made by the responsible party where the disclosure of personal information accords with certain principles. One of these principles is minimality defined in s10 of POPI: “to give information to the extent that is necessary for the purpose for which is intended”. He noted that the purpose is clearly the verification of constitutional factors: age and citizenship. In the current formulation of s16(5), “the IEC will provide that which is necessary and minimal to enable you to make a determination whether people are qualified to be on the voters’ roll”.
On the disposal procedures, “material used at the voting station, including use/unused ballot papers and the voters’ roll used at the voting station, must be packed and stored for six months in law. After six months of storage, the Commission must take a purposeful decision to dispose this material”. It usually has a well-defined process of disposal of the materials used at the voting station. This is not thrown in the bin as there is a very meticulous procedure undertaken to dispose of used materials and voters’ rolls. For example, he explained if there are 23 000 voting stations in the country and there is an aberration at the instance of a presiding officer not handling the material properly and they do not return it to the warehouse as they should. This cannot be reason to legislate in a manner that is an affront to the disclosure of personal information of voters. The IEC addresses the aberrations on its own merits and ensures that the officer concerned faces due processes in the IEC. He clarified that this is not a basis to make a law of general application.
On the issue of hackers, Mr Mamabola said hackers are constantly active working to penetrate the systems of corporate and public institutions. As the responsible party, in terms of POPI, the IEC must ensure it takes reasonable measures to protect its Information Technology (IT) environment. It continuously updates its security tools on the network which are fortified ahead of elections, and relevant security audits of the networks are undertaken. There are a series of measures that are implemented to protect the security of the network and the information that is processed containing details of voters. It will continue to undertake these measures to protect information as it is a positive duty of the IEC to do this. He emphasised that the potential for hacking cannot be reason to legislate in a manner that creates a dispensation for the wanted disclosure of personal information of voters.
In response to the question on what exceptional circumstances in terms of s16(5) are. He clarified that these will be varied and will depend on the particularities of each case. He noted he provided an example in the meeting last week of the sharing of common names or birth dates. In such instances, it might be an exceptional situation requiring the disclosure of additional digits of the ID. There may be allegations of fraud in a particular voting district or combination of wards. To investigate the alleged fraud if there is prima facie case of fraud and so on, it might be a situation in this instance that calls for the disclosure of additional digits to enable a proper investigation to happen. He explained that this is a particularity, or a circumstance depended on each set of merits but that there could be many other exceptional circumstances because it is unforeseeable. These possibilities cannot be predicted as there may be instances where there is prima facie evidence of wrongdoing but to uncover this and undertake a proper investigation, this might require the disclosure of additional digits of the ID to assist people to make proper objections in terms of s15.
In response to Mr Dodovu, he confirmed that there are no tensions between the amendments in the Municipal Structures Act and the amendments before the Committee. It is part of the preparation programme for the elections due later this year. He clarified that it is aligned and there is no discord between these two pieces of legislation”.
Mr Mamabolo concluded his responses and handed back to the Chairperson.
The Chairperson thanked Mr Mamabolo. She asked if Ms Naidoo has anything to add.
Ms Naidoo provided further clarity on “exceptional circumstances”. She responded that this concept would usually be found in the justice legislation with the offences. In this instance, as explained by Mr Mamabolo, the intention is for the CEO, who is best placed in line function in dealing with elections, to determine what exceptional circumstance is. When the CEO does this, he will exercise a “value judgement after considering the applicant’s reasoning”. This will be done on a case-by-case basis similar to what is done in the courts. She explained this is the reason why it did not provide an exhaustive list of what would amount to exceptional circumstances and that it was left open to the CEO to determine this.
The Chairperson responded saying that she will also deal with unforeseen circumstances as well. She requested Ms Isaacs to add further comments.
Ms Isaacs said all the responses covered the question. She emphasised that POPIs is legislation passed by Parliament which creates an entire new framework of looking at information and personal information. Going forward, all legislation must have a view on this and finding the balance between access to information and protecting personal information is still a challenge. In this instance, there was previously a complete redaction of all the ID details and the IEC is trying to find that balance.
The Chairperson noted the Committee has received clarity on the matters it raised.
On the issue raised by Mr Michalakis, she said the Committee discussed this in the previous meeting and the information that came through today was also mention in that meeting. In terms of the Constitutional qualifications around eligibility to vote, the Committee is addressing it in the amendments to this piece of legislation. She indicated that Members would agree the POPI legislation cannot be ignored and there is a need to align this piece of legislation to POPI. As discussed in the entire meeting last week, the Committee must deal with the balancing act between protection personal information and access to information.
Mr Dodovu noted he is satisfied with the explanations provided by Mr Mamabolo especially on the on the amendments raised today and the issue of the ID. He is satisfied that these amendments are watertight and there is clear alignment with all other legislation as well. He indicated that the Committee must adopt it and move forward.
Ms N Nkosi (ANC, Mpumalanga) noted Mr Dodovu covered her points. She wishes to second Mr Dodovu for the adoption of these amendments. She expressed her satisfaction with the presentation and explanations by the officials, and the certainty that all concerns were adequately covered.
Mr Sileku responded that there is an issue of time. The Committee is pushed for time and the fact that Members want to adopt is worrisome. It appears that the Committee must decide today. As much as some of the issues have been dealt with last week, there were some amendments done this morning before the meeting in terms of the proposals. He said this did not afford Members enough time to consider the amendments and debate it as a Committee. While safeguarding personal information is important, people should not try to provide someone rights and take away other person’s rights. For political parties to ensure that the voters’ rolls that are going to be used on election day, how will the Committee ensure there is no manipulation of information and there is no duplication of ID numbers if political parties are not given the voters’ roll that consists of all the digits of the ID number?
He urged the Committee not to rush into this Bill because it is an important Bill, and it can affect the credibility of elections. Many people are interested in how South African elections are run as it is a young democracy and it is important for elections to be safeguarded. He requested Members to apply their minds and to be given time to assess and make informed decisions so that it can reach common ground and move together as a Committee. He emphasised that Members should not vote along as if a directive was given.
The Chairperson responded that Mr Sileku should not speak on behalf of Members. She noted that if Mr Sileku has a view, he should put them forward, but he should not assume what Members are thinking. She moved to the next question.
Mr Mthethwa responded that Members should not mix issues. He said, the only addition done today are issues that was raised in the last meeting, but it was only to concrete the Bill. There are no fundamentally new issues that were raised today. The issue on the accuracy that has been explained, and the issue on the voters’ roll distribution, are not fundamental matters. He indicated his support of the Bill.
Mr Ngwezi responded that if there is no pressure in terms of time, he would like to propose something different. The direction the Committee wants to head in might disadvantage some Members and create a backlist of votes to support or object to the Bill.
He noted his support of the Bill. However, he indicated that the new version was only sent to him this morning. He noted that his views put forward does not have a party mandate except for what he only heard today and that he understands the policy of the party issues of his constituency.
He proposed that if there is no pressure, and without going to a decision, the Committee should be given a day or two, or even meet on Friday to deal with the matter that is already being supported now. This will provide a platform for Members to raise other issues, for issues to be clarified, and for a decision to be made. This meeting can take about less than 10 minutes and the Committee can then move to adopt the Bill. He noted that there is no reason why the Committee should not adopt the Bill, but it is also very important to be afforded time as it appears that Members received the information too late. It is not procedural for even one new issue to be sent 30 minutes before the meeting.
The Chairperson responded that this is the reason it was explained in the meeting. She moved to the next raised hand.
Ms Nkosi responded that Mr Ngwezi’s concerns are understandable, but it is unfortunate that the Bill was presented in the meeting when he was not present. She believes it is unfair to propose reconsidering this matter because Mr Ngwezi was not present in that meeting. The Committee already deliberated on this Bill last week.
She noted that Mr Sileku’s response was uncalled for. She said he cannot assume Members were given a directive that stipulates they must vote and therefore they are voting. This is not the case and it is uncalled for. All the matters and concerns that were raised were addressed and was well explained. She maintained that the Bill must be adopted.
Mr Michalakis noted his frustration with the way the Committee processes Bills. He said the Committee is in essence law makers and it has a Constitutional duty to ensure legislation that passes through this Committee and House are sincerely believed to be the best possible version of a Bill to achieve the objectives set out to achieve with it. He is not convinced this is the best version of the Bill as he did not have the opportunity to properly debate it with Members, except by posing questions to the IEC and the State Law Advisor. He explained his frustration stems from this: “it appears the Committee willingly accepts the recommendations presented by the IEC, the State Law Advisor, or the Department, but the Committee does not explore debating amongst itself whether what it is passing is actually the best possible version of a Bill”. He recommends the Committee set aside time, which it has, to discuss this. If the Committee does not want to consider and reckon with this Bill, he proposes that it inserts NCOP rule 211(2)(f) in the report to allocate time for a short debate when it considers the Bill in the House so that this discussion can happen in terms of rule 211(2)(f) in a manner that is adequately considered. He noted this is his first request to include this rule in the report.
He said that as the Bill currently stands, he cannot support it and he would like his objection to be noted in the report.
Ms Bartlett noted her support of Ms Nkosi to adopt and fully support this Bill. She said the Committee had ample time to discuss these issues and for the mere fact that it still has a lot of work to undertake, she does not believe there is time to go into another meeting to discuss this.
She does not take issue with Members’ comments and noted Mr Sileku’s response. She recommends that the Committee must accept this Bill.
Ms C Visser (DA, North West) clarified that it is not what Members said in this Committee. It is about the reality that it faces outside such as court cases or Constitutional Court cases that would appear from this. “The Committee has a big responsibility to ensure this legislation will comply within all the aspects that is needed”.
She supports Mr Michalakis’ comments and noted that she will not accept this Bill.
Mr Dodovu said that Members must be truthful to one another. These engagements on the Bill and the amendments are not presented for the first time today. He noted “this is the third session with the IEC, the Department, and Parliament concerning this matter”. In the first session, the Committee had to postpone the meeting because it was unsatisfied about the alignment between the process of the IEC and Parliament, including the questions and comments received from the public. This demonstrated the Committee’s persistent commitment to ensure it is prudent of what it is doing. He responded that he does not understand why Members are suddenly going into their “own party-political interests to the extent that they undermine how other Members think and undermine our intelligence on how we engage on these issues”. He said that this is unacceptable because other political parties carry its own mandate of rejecting this process or frustrating it.” The Committee is pressured by time. As legislators, it has the responsibility to assist the IEC, and all other agencies responsible for the elections, to complete its work and ensure it is ready in terms of local government elections if it is going to be held this year”. The Committee must not use irregular tactics to frustrate these processes.
He noted that a firm proposal was made as the Committee has interrogated all the issues in a substantive way. It must decide on this matter and resolve it because the Committee understands what it is doing and it has asked critical questions about this Bill, and therefore its intelligence must not be undermined as if it is subcontracting or outsourcing its thinking. He clarified that this is not the case as the Committee knows what it is doing. He therefore seconds and supports all Members that move to adopt this Bill and follow the regular processes.
This is not the first Bill the Committee is engaging on as it has undertaken a series of Bills throughout 2019. Mr Dodovu emphasised that the Committee must follow the same processes it followed with all other Bills in terms of taking it to Parliament. He urged the Chairperson to fast-track this process to go to Parliament so that Parliament can decide on it. The Committee believes that all processes that impeach on legality, Constitutionality, and all lawfulness had been addressed in terms of the deliberations and in consideration of the amendments presented today. He supports that this process must be finalised.
Mr Zandamela raised a concern that issues are raised in the Committee or that explanations were unclear to Members. He responded that the Committee constantly subjects itself that things must go to Parliament and that it is taking the route of voting on any other Bill that comes to the Committee. Members must get clarity on all issues presented to the Committee.
He agrees that the Committee must get extra time to deliberate and that this is something to consider.
Mr Mthethwa noted his confusion with Members’ issues on “time”. He said that Members were given the document and that the previous meeting was postponed just to examine this. “Is it because of the three issues added today or do Members want to start the whole process afresh?” He emphasised that Members must approve this Bill today and move forward. He noted that he does not understand the issue of time. He said, “what time do we have because we do not have time. This matter was presented to the Committee more than three times. What is it that other Members are looking for?”.
He asked the Chairperson when the Committee has ever agreed on a Bill that has been presented. There are always differences in the Committee, but it moves forward. He proposed that the Committee moves forward and undertake the process to vote.
The Chairperson thanked Mr Mthethwa. She moved to Mr Sileku and noted this will be the last comment she takes.
Mr Sileku responded that he will not address Members’ remarks about his comments and views on this matter. He noted that he considers this Bill to be very important and when the Committee deals with issues that are important it cannot claim it is pressed for time. This suggests that Members are saying it must do things only because of time. Members are therefore “not applying their minds because they are pressed for time”. He said that the Committee has dealt with very difficult and technical Bills and took even longer because its only interest at the time was to ensure it brings a Bill that will assist the country. “If Members have a few concerns on a Bill, those Members should not be suppressed because there is no directive that stipulates how many meetings a Committee must have before dealing with the Bill”. He emphasised the importance of the Bill and that the Committee cannot allow time due to local government elections to push this Bill. He disagrees with these sentiments.
He said that if the Committee is pushed to agree on this Bill today, he would like his objection to be recorded.
The Chairperson thanked Members and noted all the views. She clarified that the Committee dealt with urgent Bills in the past and that this Bill is also urgent to all Members. In terms of the discussions that have taken place over the past few engagements on this Bill, there have been consistent positions by certain Members. She said that Members should not belabour the point. These issues have been raised and been part of the Committee’s discussions, and it has allowed further engagement and discussion today which it ordinarily does not do. It did this in the interest of ensuring Members understand the issues at hand. She noted that “interestingly enough, the discussion coming forward is somewhat repetitive of the issues raised in the previous meeting”.
She responded that Mr Sileku cannot assume Members are not applying their minds. Members have been applying their minds to every Bill that has come to this Committee, and it is considering matters such as Constitutional provisions, competing rights, and alignment of legislation. The Committee is considering these matters and it is unfair to claim it does not know what it is doing as it has processed quite a few Bills. She noted that Members did not always agree on certain legislations but given the deliberations, majority of Members is of the view that the Committee must move forward with this process.
There are two amendments to this Bill in terms of Clause 8 and 20. She noted that she will go clause—by-clause for its adoption.
Adoption of Clause 8
Mr Dodovu moved to adopt it.
Ms Bartlett moved for the adoption of Clause 8.
Ms Nkosi supported the adoption.
The Chairperson noted the support. She asked if there are any objections.
Mr Michalakis objected to Clause 8.
Mr Sileku also objected.
The Chairperson noted that the Democratic Alliance (DA) objected. She asked if there were any other objections.
Mr Ngwezi responded that he is not objecting but wishes to abstain in this process.
The Chairperson said she is still getting to abstentions, but she will note Mr Ngwezi’s abstention. She asked if there are additional abstentions.
Noting that there were no other abstentions, the Clause was duly adopted. She moved to Clause 20.
Adoption of Clause 20
Mr Dodovu moved to adopt the Clause.
Mr Mthethwa seconded.
The Chairperson noted the moves to adopt. She asked if there were any objections.
Mr Michalakis responded that the DA objects.
The Chairperson noted the objection. She asked if there are any abstentions.
Mr Ngwezi responded that the Inkatha Freedom Party (IFP) abstains.
The Chairperson noted the abstention. She thanked Members and confirmed that the Clauses were duly adopted.
Mr Dodovu interjected. He experienced network difficulties.
The Chairperson asked Mr Dodovu and Ms Visser to mute unless they have something to add. She said given the urgency of this Bill, the Committee will now deal with the Committee Report.
Mr Ngwezi interjected to request the Chairperson’s office to email him the complete Bill that was presented because he did not receive it. He requested that this document with the new amendments, as well as the original Bill to be emailed to him today.
The Chairperson noted this request. She said the entire package will be sent to Mr Ngwezi given that this is his first meeting with the Committee.
Report of the Select Committee on Security and Justice on the Electoral Laws Amendment Bill [B 22B – 2020]
In terms of the draft report, she referred to the presentation and clarified that the background explains what the Bill aims to amend. The one is the Electoral Act 1996, and the other the Electoral Act 1998, and the Local Government Municipal Act 2000. These are the three pieces of legislation.
The second point went into the objectives of the Bill which is to:
- Enhance the existing legislative mechanisms that ensure free and fair elections, in accordance with the Constitution of the Republic of South Africa.
- Provide legislative authorisation for innovations in electoral practices in keeping with best practice to improve the Commission’s efficiency in managing elections; and
- Align the Electoral Act with the provisions of POPIA 2013 regarding the protection of personal information of voters.
On the public participation process and Committee deliberations, the Bill was referred to the Committee on 3 December 2020 and the IEC briefed the Committee on the Bill on 8 December 2020.
The Bill was advertised in all 11 official languages in both National and Regional newspapers from 14 to 29 January 2021. The Committee received 1550 individual submissions from the Dear South Africa website, and 5 submissions from other stakeholders. The main issues that were raised concerned Clauses 8, 9, 13, 14, and 20 of the Bill. The following organisations and stakeholders made the submissions:
- Dear South Africa
- Patriotic Movement SA
- City of Cape Town Metropolitan Municipality
- amaBhungane Centre for Investigative Journalism
- 70s Group
- Mr Wolhuter.
It received 1550 submissions from individuals via the Dear South Africa website, of which 1300 were against the Bill, 26 were in favour, and 200 were not fully in favour, although they do not provide reasons.
On 17 February 2021, the IEC responded to the summary of submissions, having received advice from the Information Regulator of South Africa, to ensure the Bill was aligned with the Provisions of POPIA. It tabled the proposed amendments on the Bill and the Committee agreed to these amendments emanating from the written submissions in its previous meeting.
In terms of today’s meeting, 24 February 2021, the report will reflect that the Committee further deliberated and considered the proposed amendments on the Bill, and Clause by Clause deliberations were conducted, and the Bill was finalised. She noted that the support, the objections, and abstentions in terms of Clause 8 and 20 must be added in the report.
On the recommendations, the Committee is stating that having considered the Electoral Laws Amendment Bill referred to it and classified by the JTM (Joint Tagging Mechanism) as a section 75 Bill, namely the Electoral Laws Amendment Bill with the proposed amendments for the Council’s consideration. She clarified that the Committee’s recommendations will go to the National Assembly.
The Chairperson said that this will be the report that will go to the House, and the proposed amendments will be attached to the report. She asked Members if there are any additions.
Mr Michalakis requested that the DA’s dissenting view be recorded in the report as per the usual practice. He indicated that he requested the Committee to include in the report a request for a debate in the House in terms of rule 211(2)(f). He noted that if the Committee can include this in the report, he will be willing to support the report.
The Chairperson responded that Mr Michalakis’ dissenting view is normal practice. In terms of whether the Committee needs a debate, she said this is another matter but essentially all parties will have an opportunity to do statements in the House.
She asked Members if they have any views on this matter.
Ms Visser noted her support of Mr Michalakis.
Mr Sileku said the inclusion of rule 211(2)(f) will not do any harm. He said the Committee must debate on this Bill in the House.
Mr Dodovu apologised for his connectivity issues. He noted his support of the report.
The Chairperson clarified that these are amendments proposed by the DA to debate in terms of rule 211(2)(f). She said that ordinarily, the Committee will do statements in the House and political parties do this as well. This is a section 75 Bill. She explained to Mr Dodovu that the Committee is not yet at the point of adopting the Bill.
Mr Dodovu experienced connectivity issues. He said there were many Bills that the Committee engaged on and processed and submitted to Parliament following the regular procedure. He noted his confusion with suddenly following different procedures. “The DA, like all other parties have the right to make a declaration and express its views on the debate when this Bill is presented to Parliament”. As Members are aware, the parties will be given time to present its views. He noted his view is to follow the regular process.
He emphasised that this is an important piece of legislation. He proposed that the Committee follows the process it normally follows in Parliament to process this Bill as any party will be afforded the opportunity to object and raise its views in Parliament.
Ms Nkosi aligned herself with Mr Dodovu for the Committee to follow the regular processes when dealing with this report.
Ms Bartlett agrees with Ms Nkosi and Mr Dodovu.
The Chairperson asked Mr Zandamela if he has a view on the matter. She explained that Mr Michalakis is proposing that the Committee debates on this Bill. Ordinarily, the Committee takes the Bill to the House and do statements and declarations in the NCOP, and various party-political positions do this in terms of the declarations. She clarified on the one hand there is a view to have a debate and the other view is to follow the normal procedure.
Mr Zandamela said he noted the concerns and based on this he maintains his position on what he raised.
The Chairperson noted the response. She said in terms of the report, the dissenting view of the DA will be noted however on the other recommendation about the debate, “the Committee will rather go to the default position of doing statements in the House”. The DA like any other political party will do its declaration on the matter.
She asked Members to indicate their support for the adoption of the report.
The Committee report was adopted.
The Chairperson asked for objections to be raised.
Mr Michalakis said that “in light of the fact that the ANC Members are scared of a debate, I cannot vote in favour of the report”.
Ms Bartlett interjected and said that Mr Michalakis is out of order.
The Chairperson responded that no one is afraid of anything.
Mr Bartlett agreed with the Chairperson.
Mr Michalakis responded that this is debatable.
The Chairperson noted Mr Michalakis’ objection. She asked if there are any abstentions on the report.
Mr Sileku noted his hand is raised.
The Chairperson asked if she could note that the DA objects.
Mr Sileku confirmed that the DA objects. He said the Chairperson does not want a debate.
The Chairperson responded that Members are not afraid of a debate. She said that Mr Sileku has his views to debate but there are also other views being put forward and Members must respect this.
The Chairperson noted that since there are no abstentions, the report is duly adopted. She thanked Members for their time and participation in this meeting. She said that the Committee will take processes forward as agreed in terms of this meeting and that it is satisfied with this Bill. She thanked the parliamentary legal advisor, the Office of the State Law Advisor, Members, and the IEC for its contributions in this process into the Bill.
The meeting was adjourned.
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