Municipal Electoral Bill: discussion

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE; SOCIAL SERVICES SELECT COMMITTEE: JOINT MEETING
9 June 2000
MUNICIPAL ELECTORAL BILL: DISCUSSION

Documents handed out:
Municipal Electoral Bill

SUMMARY
A letter supporting the request of the Director General for an additional R59 million was read and agreed to. The Identification Amendment Bill was looked at briefly. Party positions were presented on some contentious issues in the Local Government: Municipal Electoral Bill.

In Clause 7(2) the danger of possible fraud in making an affidavit was weighed against the need to provide for cases of registered names being left out of the voters roll in error. It was pointed out that the ninety-day period within which municipal elections had to be completed was a constitutional imperative. The consequences of a candidate standing and being elected in more than one ward was explained. The need for independent candidates to obtain fifty signatures was discussed. Party agents and candidates would not be able to wear party colours or other party insignia, however voters would. The marking of the hands would be compulsory and not discretionary.

Most parties agreed that special voting should not be allowed because of logistical problems and possible constitutional challenge because exception was made only for certain people in Section 55. The DP felt that many people would be denied the right to vote without the Clause. Section 82, on the Access to private property would probably survive constitutional challenge. The amendment proposed by the State Law Advisors did not deal with the constitutionality issue but rather empowered the IEC to enter private property for purposes of the election, not only on election day.

MINUTES
A letter drafted by Mr Mokoena, the Chairperson, supporting the request of the Director General for R59 million for personnel expenditure in the Department of Home Affairs , was accepted by the committee. There were no suggested amendments to the letter.

Mr Waters(DP) brought it to the committee's attention that there had been a Constitutional Court judgement on the previous Wednesday in which certain sections of the Aliens Control Bill had been declared unconstitutional.

Mr Mokoena asked Adv K Malatji whether he could brief the committee on the Aliens Control Act after the committee voted on the Bill on Monday.

Identification Amendment Bill
Mr Waters felt that due to the department's financial constraints and bearing in mind that there would be a new ID card system in place the following year, he felt that it should be legislated that people with old ID books should rather be put on the new card system immediately. This would alleviate the whole process of 2 million people having to queue at Home Affairs offices for green bar coded IDs, since they would have to do the same thing the following year for the new cards as well.

Mr Mokoena felt that Mr Waters was "mudding the waters". He said that the committee should confine itself to the object at hand - to legislate that only green bar coded IDs (as opposed to others) should be used for the elections.

Mr van der Merwe from the IEC, said that it would take a few years before people had smart cards and therefore it made more sense to get the bar coded IDs for the election.

Mr Mokoena said that the new smart card system was in any case premised on the assumption that people had bar coded IDs already.

Ms L Jacobus, Chairperson (NCOP) felt that there was general agreement that the Bill should stand as is. Mr Mokoena said that voting would take place on 12 June 2000.

Municipal Electoral Bill
Mr Mokoena said that the committee had a factual understanding of the Bill, the IEC had briefed the committee and there had been input from the public. The members had to assess what the effect of the public input was and whether it affected their party positions and then it had to give an indication of the party positions. They went through the Bill again, discussing those sections that might be contentious.

Mr K Morwamoche asked the IEC why the Bill had no preamble.

Mr van der Merwe said that normally these kinds of Bills did not have preambles, which were not necessary parts of a Bill.

Clause 1 - 4: No discussion

Clause 5 The national common voters' roll
Mr I Pretorius (NNP) asked what was being done to ensure that people who had died since the previous elections did not appear on this year's voters roll. Was there a mechanism by which the department removed them from the roll?

Mr van der Merwe said that the voter's roll was consistently compared with the national population register. Information about people who died would come through to the Chief Electoral Officer who would look at the voter's roll to see if the person concerned appeared on the roll or not. Sometimes however, the information was not accurate or correct and thus the Commission was not really sure whether it could in every individual case accept the information as correct. There was still interaction between the IEC and the department on how to ensure that the information was correct.

Clause 7 Who may vote
There was general consensus that Clause 7(1) (b) had to be scrapped.
Mr Waters said that the DP wanted Clauses 7(2) and (3) to be scrapped. He said that the process in these sections was open to abuse. Zig-zig machines did go missing. He said that someone could easily steal a zig-zig machine, print out receipts and stick it in people's books. On election day they could then pretend that they had registered when they had not. There was a period for inspection of the voters roll which had to be used to ensure that people's names were on the roll.

Mr van der Merwe said that Clauses 7(2) and (3) had been inserted especially to make provision for those cases where, because of administrative mistakes and other reasons, a person's name did not appear on the voter's roll at the moment the election was declared. It would be a pity that because of some administrative mishap, a voter could not vote or a candidate could not stand. The voters roll was new and with the new demarcation process a reorganisation of voting districts had to occur and thus there was a greater chance of errors occurring with voter's rolls.

Mr Sikakane (ANC) agreed that because administrative errors did occur the section was needed.

Mr Grobbelaar (DP) was still concerned about the possibility of the machines being in the wrong hands. In addition there was an inspection period. If someone was serious about being a candidate [or a voter] there was time for that person to check the roll.

Mr Pretorius (NNP) referred the committee to the submission by SALGA who had their misgivings about the insertion of this clause.

Clause 9 Postponement of voting at a voting station
Mr Lekgoro (ANC)said that the issue of the extreme between seven and ninety days still remained a problem.

Mr van der Merwe said that Clauses 8, 9 and 10 were exactly as they were in the 1998 Act and the 90 days was merely to bring a postponement of the election within the constitutionally required timeframe within which elections had to be held.

Clause 16 Nomination of ward candidates.
Mr Pretorius asked if a candidate could stand in more than one ward.

Mr van der Merwe said that there was nothing in the Municipal Structures Act prohibiting a person from standing in more than one ward or from having his/her name on a party list as well as being a candidate in a ward. This issue could not be dealt with in the Electoral Act in any case. In the party liaison committee, the IEC had asked parties to consider the consequences of having one candidate standing in more than one ward because if that candidate was elected in both wards then there would have to be by-election. If a party candidate qualified both as a ward candidate and on the party list, the Commission would ask parties to allow ward candidacy to take preference to obviate a by-election in the ward.

Mr Grobbelaar disagreed, saying that a candidate could be on a ward list and a proportional list and had to decide within seven days what he wanted to do.
The only potential problem was when there was a hung situation in a council. Nevertheless here the previous council would carry on till the problem was sorted out.

Ms L Jacobus asked if provision could be made for gender representation or whether it was left completely up to parties to decide.

Mr van der Merwe said that the issue of gender had been dealt with in the Municipal Structures Act already where parties were called on to construct their lists in a 50%-50% ratio with regard to male and female representation. This arrangement was however not imperative.

Clause 17 Requirements for ward candidates to contest election
Mr Waters said that fifty endorsement signatures was too low, especially for big urban areas. He suggested 2% of the ward as in 1995. Secondly if independent candidates had to have signatures then the council would have to verify that the 2% (or the fifty people) actually lived in that ward. If for example only 48 people lived in the ward, the independent candidate had to have a chance to rectify this matter and be given an extended period as with parties.

The positions of other parties stated previously in relation to this section still stood.

Clause 23 Ballot papers
Clause 23(b) which dealt with the language issue was omitted. This clause had said that the Commission had to determine the language to be used on a ballot paper, taking into account the election in which that ballot paper was to be used. Whilst it would be ideal to have ballot papers printed in all the official languages, it was too costly and the provision had to be omitted.

Clause 26 Voting materials
The issues raised, relating to serial numbers, still stood.

Clause 37 General Provisions regarding appointment of officers
Mr Waters still felt that no person could hold office in a ward where an immediate family member was standing in.

Mr Mokoena was concerned that there were so many people with the same surnames, which could cause problems, since many people probably were not related. He did not know where to draw the line or how to police this.

Mr Waters said that there could be people with different surnames who were indeed related.

Mr Mokoena felt that this should be left as it was.

Clause 40 Powers and duties of agents candidates within a voting station
Mr Mokoena said that the current position was that only voters could wear anything that they liked. Party agents could not wear any insignia that identified them with their party. He asked Mr van der Merwe whether he was correct.

Mr van der Merwe said that Mr Mokoena was correct but the party agent did have a party tag to identify him as the party agent for a particular party.

Mr Mokoena asked who made this tag.

Mr van der Merwe said that the IEC prescribed it. It was a written tag which said "ANC" or "IFP" for example. No colours were included.

Ms Vilakazi asked what happened if a party agent simply wore his party colours. How would one discipline the party agent.

Mr Mokoena said that the IEC met all the leaders/representatives of parties registered for elections, in the national party liason committee. The Municipal Electoral Act along with its the rules and regulations would be explained to these persons. All the do's and don'ts would be made clear. From here this information went down each party's electoral structures to party agents and others who were then introduced to the "commandments". If a party agent simply wore his party colours on election day the presiding officer had the power to turn such persons away from the voting stations in terms of the Act.

Clause 50 Marking of hands
Mr Waters asked whether people with objections would be allowed to fill in affidavits and be exempted if they had objections on the ground of religion for example (should the marking of the hands be implemented).

Mr van der Merwe said that these problems did not arise in previous elections. If one had to include exceptions, there had to be a procedure for such exceptions inserted in the Bill. He did not know whether it was wise to have this.

Mr Grobbelaar felt that 50(1) could not say "the Commission 'may' decide" It had to say 'must'.

Mr Van der Merwe sketched the history of this Clause and said that it was introduced in the 1998 Bill in the event that all forms of IDs were going to be allowed. However when parliament decided to only use the green bar coded ID's, it was forgotten to take out the Marking of the Hands Clause in 1998. It was decide that it be included in this Bill, after discussion in the Party Liason Committee, to assess the situation nearer to the election - to see if there really was a need for the marking of the hands, hence the "may". There were also real cost implications for saying "must". If in particular circumstances the marking of the hands was not needed it should be avoided.

Mr Mokoena felt that in the interest of voter education there had to be certainty on this issue.

Mr Pretorius said that if there was no marking of the hands, he would have to go back to his party since they had conceded to the inclusion of the 7(2) sworn or affirmed statement process because of the safeguard of the marking of the hand clause.

Ms Vilakazi said that all ambiguity had to be removed otherwise there could be corruption with voters going to vote at more than one voting station since their hands were not marked as allegedly happened last year. Anything that could create corruption had to be removed.

Mr Sikakane said that if one had listened to the explanation of Mr van der Merwe, one would not be talking of ambiguity. The IEC was saying that the section was there so that as the process got nearer to the elections, they could see whether or not to mark hands since it had financial implications.

Mr Mokoena said that vagueness and ambiguity, had to be avoided and the IEC had to say whether or not they would be marking hands.

Mr van der Merwe said that the "may" would be changed to must. This necessitated a reformulation of the clause, which the IEC would work out and have ready by the time voting had to occur.

Clause 52 Sealing of full ballot boxes

As ballot boxes became full they had to be sealed. The section however dealt with the sealing of unused and partially used ballot boxes as well, thus Mr Mokoena felt that the heading of the section had to exclude "full". It was agreed.

Clause 55 Special Votes

Mr Mokoena said that there seemed to be a popular view, shared by the State Law Advisors and the IEC that that this clause had to be omitted. He asked for the various parties' positions.

Mr M Waters (DP) said that he disagreed. The DP believed that Clause 55 had to be retained for a number of reasons. Election day workers and the security forces working on election day would be denied the right to vote. People who were deployed to other areas would also be deprived of their right to vote. Some arrangement had to be made for them. The DP agreed with the State Law Advisors' first opinion on this, which said that if there was an extra day where people involved in the election could go to their voting station and vote, one may as well open this up to people who would not be in their voting districts on election day. They understood that there were financial constraints since the IEC was only given 47% of their budget. They were therefore not saying that every voting station had to be opened on a special day, however there could be a cluster of stations together at one point to save costs. The clause had to be retained.

Prince N Zulu (IFP) said that the IFP had looked at the section and had weighed the options - for or against. Although he had felt quite strongly that their had to be special votes for pilots for example, his party said that on the question of residence, the election focused primarily on where a person resided. Therefore they felt that the clause had to be omitted.

Mr Pretorius said that whilst some members in the NNP felt quite strongly about including special votes, in the end it was decided to omit it since there would have to be a way of covering all exceptions and not a few in such a clause. To have only one day would not be practical since many people were out of the country or in other parts of the country at election time, which they could not avoid.

Mr P Qokweni (UDM)(NCOP) felt that Clause 55 had to be omitted since it created too many problems.

Mr Lekgoro said that much on the basis of the logistical problems, which would flow from a special vote, and from the fact that if one allowed one kind of special vote then you opened yourself legally to requests for other exceptions, the ANC wanted Clause 55 deleted. There would be constitutional challenges and therefore unnecessary litigation if the clause remained. There was already a precedent set, in any case, in the last local election of not allowing special votes.

Clause 56 General

In the event that Clause 55 was deleted, "subject to section 55" also had to be deleted according to the Law Advisors' proposed amendments.

Clause 58 Place and time of counting votes

Ms M Maunye asked if there could be provision made in the Act for agents, to accompany the ballot boxes to counting stations.

Ms Jacobus supported the suggestion.

Mr Mokoena felt that it was not necessary since, in terms of Clause 53, there was a whole procedure which the presiding officer had to follow in relation to sealing ballot boxes in the presence of agents, who could later verify that ballot boxes were missing.

Mr Lekgoro said that the reason for agents accompanying the presiding officers was to make sure that nothing happened on the way to the counting station. Even if the recording procedure occurred and the agents confirmed that for example two ballot boxes were missing, this would not prevent the boxes from disappearing, but agents accompanying the presiding officer would.

Mr Qokweni agreed.

Ms L Jacobus asked the IEC whether it would do any harm to inserted a clause which required party agents to accompany the presiding officer.

Mr Waters said that there was nothing in the Act prohibiting party agents from following the vehicle in which ballot boxes were being transported.

Mr Sikakane said this issue had surfaced before and the answer was that voting would occur where counting occurred. He could not understand why this issue was being raised.

Mr Mokoena said that there could be instances where, because of power failures for example, counting had to be done elsewhere. These exceptional circumstances were being spoken about.

Mr van der Merwe reaffirmed that all the members raising concerns in this regard were perfectly correct in having concerns about transporting ballot boxes to a central counting station. Many things could happen and did happen and suspicion arose. This was why it was decided to count at the voting station. Counting would only occur elsewhere if the IEC agreed. In the event that ballots had to be counted at a central venue, then 58(3) and 59 applied. It often happened that party agents requested to drive in the vehicle, which had ballot boxes. Driving behind the vehicle was fine but agents preferred to be in the vehicle where the ballot boxes were. The IEC could not undertake to transport party agents in these vehicles. It was impossible since the IEC would be subject to all kinds of risks. To include a clause saying that the party agents could drive behind the presiding officer was fine, but unnecessary because they did any way.

Clause 82 Access to Private Places

Mr Mokoena asked Mr Lambani to explain the proposed amendment of the State Law Advisors on this clause. Adv Lambani said that the amendment was to omit: "and the proposed entry onto such place may only take place during the time of the election".

Mr Waters said that there was some concern that this clause was unconstitutional. He asked if this amendment would ensure that the section was constitutional.

Mr Mkhize of the State Law Advisors said that the amendment did not relate to the constitutionality of the clause. It was more related to the practicability and implementation of the clause. The concerns regarding the constitutionality were still there. However in the deliberations of the State Law Advisors, it was felt that the clause could be sustained under Section 36 of the Constitution dealing with the limitation of rights. The right of a community to vote was weighed against the right of an individual to own private property. It was felt that if there was a constitutional challenge, an argument could be sustained that under these circumstances, because there was a matter of national interest, the right of the owner of the property could give way to the national interest.

Mr Mokoena asked Adv Lambani to explain the effect of the deletion.

Adv Lambani said that if there was no deletion then the IEC would be confined to normal election time. There may be the need to enter private property not only for the election but for voter education as well.

No further discussion occurred on the remaining clauses.