Municipal Electoral Bill: discussion

Meeting report

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

Documents Handed Out
Proposed Amendments to Local Government Municipal Electoral Bill (State Law Advisors)

Submissions on the Municipal Electoral Bill:
ANC Women's League Northern Suburbs
Local Submissions Committee Elsies River
Women In Leadership: Letter and Submission
Gender Advocacy Programme: Memorandum regarding Local Government Elections

SUMMARY
The committee continued with its deliberations on the Bill. Whilst the omission of clause 55, dealing with special votes was needed to avoid a constitutional challenge, there was motivation for the need to have some exceptional arrangements for voting. Central counting would not occur. The Commission would avoid last-minute additional regulations. It was suggested that parties should look at the public submissions. The Identification Amendment Bill was also looked at.

MINUTES
Mr Mokoena went through the amendments proposed by the State Law Advisors (see Appendix at end of these minutes). Before continuing from Clause 55 with clause by clause deliberations, he said that the ritualistic manner of a clause by clause analysis would be avoided and Adv Lambani would only comment if there was a question.

Clause 55 Special Votes
Mr Mokoena said that there seemed to be a popular view that this clause had to be omitted. Whilst the committee would not be debating this issue now since there would be a debate on Friday 9 June 2000 after members had been to their caucuses on Thursday 08 June), he wanted the preliminary views of members.

Mr M Waters (DP) said that he wanted clarity from the State Law Advisors because when they gave their initial presentation on the Bill, they not only wanted Clause 55 to remain, but had also asked for it to be extended to ordinary citizens who would not be in the voting districts on election day. He asked why they had now changed their minds and decided to scrap Clause 55.

Mr Mkhize from the State Law Advisors said that Mr van der Merwe from the Independent Electoral Commission, could explain why this was sought to be omitted, since it was really the IEC's request.

Mr van der Merwe said that in the opinion that the State Law Advisors had given to the committee the constitutionality of Clause 55 was queried. The State Law Advisors argued that by giving special votes to very limited numbers of voters or categories of voters, one was actually discriminating against other voters who could not make it to vote on election day. There had previously not been special voting during municipal elections because of the realities of management of municipal elections which made it difficult to manage special votes on election day. The Commission agreed with the Law Advisors and especially to circumvent constitutional challenges based on unfair discrimination, the Commission felt that it would be best to remove Clause 55. The Commission had in any case not made any provision for special votes when it submitted the Bill to Government (who had inserted Clause 55 thereafter).

Mr I Pretorius (NNP) said that whilst he would get a final answer from the NNP caucus the following day, he agreed that there should not be special votes because in the 1995/96 municipal elections there were no special votes.

Prince N Zulu (IFP) understood the reasons for scrapping Clause 55. He was nevertheless concerned about those citizens temporarily outside of the country on election day.

Mr Mokoena did not want to entertain debate around this, saying that it could be entertained on Friday 9 June 2000. He said that this kind of concern had to be raised with party caucuses who could perhaps provide answers.

Mr Waters asked the IEC whether it had a cost analysis if there was to be special voting.

Mr van der Merwe said that the IEC did not have a cost analysis. However with the limited categories of special votes, of the disabled and the officials one could see that for the disabled there would only be provision made for disabled in a voting district on voting day . Thus people in hospitals would not be able to be helped. For officials there would have to be an additional voting day, which would cost the Commission a substantial amount of money.

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 57 Commencement of counting procedures
No Discussion

Clause 58 Place and time of counting votes
Mr Waters asked if, in the event that ballots had to be counted elsewhere and transported, it could be ensured that they were in metal boxes and not cardboard boxes.

Mr Lekgoro (ANC) suggested that in these circumstances the presiding officer had to be accompanied by party agents.

Mr van der Merwe said that it was hoped that there would be no central counting anywhere as the transport of ballot boxes was difficult to monitor. In the 1999 there were a number of requests from various parts of the country for central counting for certain reasons. Not one was approved.

Clause 59 Verification procedure
No discussion

Clause 60 Objections and appeals concerning verification
No discussion

Clause 61 Counting of votes
No discussion

Clause 62 Rejection of Ballot Papers
No discussion

Clause 63 Objections concerning the sorting of ballot papers and counting of votes
No discussion

Clause 64 Procedure concerning results and voting materials
No discussion

Clause 65 Determination and declaration of result of election
Mr Pretorius wanted to clarify that the declaration of the result would be done at the local municipality by the local representative of the Commission and not by verification in Pretoria after central counting.

Mr van der Merwe said that according to the election plan, which was frame-worked by the Bill, the counting of the votes took place at the voting station. The presiding officer would then take the results of the count to the municipal electoral officer (the returning officer for the whole municipality). The municipal electoral officer would then determine the result of the election for that municipality and announce it there.

Clause 66 Objections material to declared results of election
No Discussion

Clause 67 Contravention of Code
Adv Lambani said that Clauses 67 to 77 dealt with prohibited acts. They were regarded as criminal acts, and people perpetrating any of these acts would be prosecuted.

Clause 68 Undue influence
No Discussion

Clause 69 Impersonation
No Discussion

Clause 70 Intentional False Statements
No Discussion

Clause 71 Infringement of secrecy
No Discussion

Clause 72 Prohibitions concerning voting and election materials
No Discussion

Clause 73 Prohibitions concerning placards and billboards
Adv Lambani said that whilst it was an offence for someone to pull down a billboard or placard according to this Bill, there were municipal by-laws governing notices and advertisements within municipal areas and it was true that certain people bought space in order to put up their posters. He felt that this should be negotiated with the relevant municipality. Even if it was election time, municipalities did not just allow people to come and hang posters on lamp poles.

Mr Lekgoro was dissatisfied with the fact that newspapers could use lamp poles to advertise. Newspaper vendors should not have the right to use lamp poles to the exclusion of political parties during election periods . There had to be national legislation regulating this.

Mr Waters said that if newspapers were advertising on poles, this in itself was not a problem. It was a problem if a party put their poster over the newspaper's billboard or poster, since they would rip it off. If the poster was put above or below the newspaper's then there should not be a problem. If newspapers were ripping down posters, one should complain to the municipal authorities, since they did not buy the entire pole length but only a certain space on the pole. One could thus go below or above them - this was not a problem.

Mr Lekgoro said that whilst this sounded reasonable. In practice there was a different scenario since posters were pulled off by people whether or not there was enough space in the belief that other posters would crowd theirs. He felt that this situation had to be regulated by a national law, thus a clause had to be inserted to deal with this.

Mr van der Merwe felt that this issue was too local an issue to be dealt with in national legislation.

Mr Mokoena said that perhaps as part of voter education, people in local authorities could be sensitised to the fact that problems with regard to lamp poles did arise and people who rented space did not own the whole pole.

Clause 74 Obstruction of, or non-compliance with, directions of Commission, chief electoral officer and other officers
No Discussion

Clause 75 Temporary obligations
Mr Waters asked if parties would be able to advertise on radio for the local elections.

Adv Lambani said that the Commission would have no control over radio advertisements, which fell under the IBA Act. There was a clause similar to 75 (2) to the effect that there had to be a statement preceding the advertisement, saying that it was paid for by party X.

Clause 76 Prohibition on certain political activities
Mr Pretorius said that in the pre-1994 Act there was a provision stating that public address systems and loud hailers could not be used. He asked if this clause prohibited the use of loud hailers or public address systems on election day. Mr Lekgoro asked if house to house visits would be allowed on election day, not for electioneering but simply to remind people to vote.

Adv Lambani said that this section prohibited these kinds of activities on the day of elections.

Ms Vilakazi (IFP) felt that these kinds of activities should not be allowed on election day since it would encourage bad elements and intimidation to surface.

Mr Mokoena asked if electioneering had been allowed on election day with the previous two national elections.

Mr Lekgoro said that electioneering had not been allowed. Certain activities had been expressly excluded such as mass rallies for example. However door-to-door reminders to vote and loud-hailing were allowed in the previous election.

Mr Mokoena asked why Mr Lekgoro had singled these out so clinically. He felt that in the interests of avoiding conflict and destruction loud hailing should not be allowed on election day. If one allowed 17 parties to use loud hailers to remind people to come and vote, it was inevitable that party political overtones would be evident - thus electioneering would take place.

Mr Hanekom agreed with the chairperson.

Clause 77 Prohibition on publication of exit polls
Adv Lambani said that this clause prohibited a person standing at the exit of a voting station and asking voters for whom they had voted. This "exit polls" information could then be made available for forecasting results. However such information could have the effect of discouraging potential voters from voting if they saw that a certain party was apparently far in the lead.

Clause 78 Institution of and intervention in civil proceedings by chief electoral officer
No Discussion

Clause 79 Jurisdiction and powers of the Electoral Court
The law advisers had a proposed amendment to this section saying that the Electoral Court would not have final jurisdiction.

Clause 80 Offences
No Discussion

Clause 81 Penalties
No Discussion

Clause 82 Access to Private Places
If there was a need for access by a member of the Commission in order to exercise a power or perform a duty under the Act, then the owner of the private property would not be able to refuse.

Mr van der Merwe said that the IEC had asked for an amendment of clause this (see proposed amendments as introduced by the State Law Advisors in Appendix.

Clause 83 Ownership of voting and election materials, and disposal
No Discussion

Clause 84 Return or forfeiture of Deposit
Mr van der Merwe said that the Bill allowed the Commission to determine a deposit but did not mention an amount. It was also not obligatory for the Commission to determine a deposit. The issue of having deposits for individual candidates would have to be discussed with the various parties.

Mr Mokoena asked when the deposit would be forfeited.

Adv Lambani said that a party who won a seat would get its deposit back. In the case of an independent or ward candidate, the candidate had to receive at least 10% of the votes.

Clause 85 Effect of certain irregularities
No Discussion

Clause 86 Inspection and copying of documents
No Discussion

Clause 87 Prohibition on certain strikes and lockouts
No Discussion

Clause 88 The Electoral code of conduct
No Discussion

89 Other codes
No Discussion

90 Regulations
Mr Mokoena wanted clarity on who would formulate regulations and by when. Adv Lambani said that the clause authorised the Commission to regulate any matter which needed to be regulated in terms of the Act. As soon as the Bill became an Act, the Commission had to have regulations on what needed to be prescribed. The Commission was working on these regulations at the moment.

Mr Waters said that there was a request by members during the proceedings that regulations should not be changed a month prior to the elections. He asked if the Commission had taken note of this.

Mr Mokoena suggested that a clause be inserted saying that regulations could not be effected less than one month before the proclaimed date of the elections, so that people would have enough time to know all the applicable rules. A notice containing regulations should not be put up in civic centres two days before the elections.

Mr van der Merwe said that the very reason for making provision for regulations was so that they could deal with problems, which could arise at any stage. If one built in a restriction, it could defeat the very object of the power to make regulations. If at the last moment a very vital problem arose which could be solved by way of a regulation - then obviously it would need to be resolved at that stage. He nevertheless gave an undertaking that the Commission would do its utmost to get all regulations published as soon as possible. He pointed out that the Commission had gone so far as to try and include in the Bill, issues and matters which had previously been dealt with in regulations.

Mr Mokoena said that the IEC was trusted as an autonomous body. However once it was given this legislative tool, he asked what prevented the IEC from coming up with regulations which went far beyond what the legislators intended. He was also concerned that if the IEC made good regulations at the eleventh hour, which did not filter through the whole country, there may be confusion. He therefore felt that there had to be a time limit to regulations and suggested that perhaps there could be exceptions only in extreme circumstances.

Mr Pretorius felt that the IEC should consult with the political parties serving on the national liaison committee before they decided on such an exceptional regulation.

Mr van der Merwe said that the IEC invariably did this.

Ms Vilikazi (IFP) wanted to know what the IEC would do if personnel and equipment did not arrive at voting stations on time, as had happened in the past. Especially in rural areas, this affected people who had to travel long distances to get to voting station and had limited means of transport.

Mr van der Merwe said that the IEC did everything possible to make adequate arrangements that everything started on time, that officials were trained and that equipment was there. When one worked with elections it was done in a very tight timeframe and it did get a bit difficult. The IEC would do its best to ensure that there would not be hiccups again. Sometimes there were Acts of God, which no one could do anything about.

Clause 91 Delegation of powers and assignment of duties by Commission
No Discussion

Clause 92 Delegation of powers and assignment of duties by chief electoral officer
No Discussion

Clause 93 Decision of objections and appeals
No Discussion

Clause 94 Amendment of laws
No Discussion

Clause 95 Application of Local Government Transition Act
No Discussion

Clause 96 Act binds the State
No Discussion

Clause 97 Short Title
No Discussion

Schedule1 Electoral Code of Conduct
Mr Lambani said that this code binds parties participating in the elections. It existed to ensure that there was indeed a levelling of the playing fields. Parties were obliged to promote the code. It dealt with issues of cooperation between parties in terms of mass rallies, booking of halls and the importance of free politicking. There had to be public commitment, thus parties could be asked to publicly sign the code of conduct where they would indicate that they would encourage their members to support the code of conduct. It spoke about the role of women, the Commission and the media and also had a section on prohibited conduct which incorporated additional issues to those already mentioned as prohibited conduct in the Bill. These included the use of language to provoke violence or intimidation and defamatory publications.

Schedule 2 dealt with the amendments being suggested to certain legislation such as the Electoral Commission Act 1996, the Electoral Act 1998 and mostly consequential amendments to the Local Government: Municipal Structures Act, 1998.

Memorandum
No Discussion

Discussion on Public Submissions
Mr Mokoena asked for discussion around the issues raised by the public submissions. Ms L Jacobus said that these submissions should be taken back to parties to be discussed.

Mr Pretorius said that other than SALGA's comments, most submissions confused this Bill with the Municipal Structures Bill and were addressing issues that were covered by Municipal Structures Bill. He added that the committee had done a good job in considering the Bill.

Mr Mokoena said that perhaps in future when advertisements called for public comment, pertinent issues which needed comment from the public should be specifically highlighted. He said that issues coming out of the submissions had to be raised in the next meeting.

Identification Amendment Bill
This Bill amended Section 1 of the Identification Act 1997 by providing that the "identity card" included the green bar-coded identity document. This had to be taken to party caucuses as well.

Mr van der Merwe felt that because about six million people still had to register for such ID books, there had to be an intensive campaign around this especially in areas where registration figures were low.

The meeting was adjourned.

Appendix:
Proposed Amendments to Local Government: Municipal Electoral Bill 2000 (State Law Advisors)

Clause 7
1.On page 7, in line 35, to omit paragraph (b).

Clause 55
1.On page 21, from lines, to omit clause 55.

Clause 56
1.On page 22, in line 8, to omit "subject to section 55,".

Clause 79
1.On page 27, in line 52, to omit "final".

2.On page 27, from line 43, to omit "and no decision or order of the Electoral Court is subject to appeal or review" and to substitute: "subject to section 20(4) of the Electoral Commission Act".

Clause 82
1.On page 28, in line 39, to omit "and the proposed entry onto such place may only take place during the time of the election".