Municipal Electoral Bill: discussion

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
6 June 2000
MUNICIPAL ELECTORAL BILL: DELIBERATIONS

Documents Handed Out
Municipal Electoral Bill (B35-2000)
Identification Amendment Bill (B33-2000)

SUMMARY
The clause-by-clause analysis up to Clause 54 focused on getting a factual understanding of the Bill. There was also preliminary discussion on potentially contentious clauses: the proposed exclusion of lawfully imprisoned persons from having the right to vote -7(1)(b), the authenticity of the affidavit stating that one had registered although one's name did not appear on the voters roll - 7(2), the length of period (90 days) permitted for potential re-voting at a voting station, wearing of party colours on election day by party agents, serial numbering of ballot papers and voting hours.

MINUTES
Advocate Lambani from the IEC took the committee through the Bill clause by clause.

Clause 1 Definitions
Advocate Lambani noted that the definition of "identity document" had to be aligned with the definition in the Identification Amendment Bill which spoke of the bar coded ID.

He pointed out that temporary identification certificates were also identity documents for the purposes of the Act.

Mr I Pretorius wanted to know why the "Minister" was defined as the Minister for Provincial and Local Government and not the Minister of Home Affairs.

Adv Lambani said that this definition was in accordance with the Municipal Structures Act in terms of which the Minister for Provincial and Local Government was in charge of proclaiming the elections.

Mr M Waters wanted to know whether election candidates would be required to be up-to-date with the payment of rates and taxes.

Mr M Lekgoro (ANC) said that if candidates had the means to pay the taxes but due to their negligence or conscious boycotting, had not done so, then they should not be allowed to be candidates. However those who could not afford to pay, should not be barred.

Mr Waters said that in the 1995/96 municipal elections, all candidates had to be up-to-date with rates and taxes.

Mr van der Merwe said that the qualifications of candidates were dealt with in the Municipal Structures Act.

Clause 2 Interpretation of the Act
Interpretation had to be done in a manner which gave effect to the declarations, guarantees and responsibilities in the Constitution and had to take account of any applicable code (including the Code of Conduct in Schedule 1 of the Act).

Clause 3 The Act to regulate municipal elections
No discussion.

Clause 4 Administration of the Act
The Act had to be administered by the Commission in a manner conducive to free and fair elections.

Prince N Zulu (IFP) was concerned about how "free and fair" would be defined and what would constitute "free and fair".

Mr van der Merwe said that it was impossible to define it and there had been a number of theses written on it already. What was free and fair to one would not necessarily be agreeable to another. Hence there was an Electoral Court where one could raise complaints and challenge whether an election was free and fair.

Clause 5 The national common voters' roll
Adv Lambani said that the day the election date was proclaimed would mark the end of the entry of further names onto the voter's roll.

Clause 6 Segments of the roll to be used in the election
This amplifies Clause 5. The Chief Electoral Officer has to certify the segments of the voters' roll for that voting district by a particular date in the election timetable (to be published when the Bill was passed.

Clause 7 Who may vote
Adv Lambani said that the Bill was descriptive instead of being prescriptive. When it states in this Bill "who may vote" it should describe how one qualifies to vote instead of precluding people from voting. The Bill described the process and said that a person may vote if registered as a voter on the certified segment of the voters roll. 7(1)(b) said that a person could vote only if not lawfully imprisoned or detained on the voting day. This was the cause of a number of problems since this Bill was not supposed to give or take away rights but instead describe the municipal election process in terms of what should be done.

Advocate Mkhize of the State Law Advisors said that there were concerns about the constitutionality of 7(1)(b). Consequently they had communicated with the Department and the IEC in a meeting the previous day. He said that the IEC did not have an objection to the deletion of the clause and therefore it was proposed that it be deleted.

Mr Mokoena said that the deletion did not seem to take the problem away. He was concerned that there may still be law suits brought by prisoners.

Mr Lekgoro wanted to know what the effect of the removal would be.

Mr van der Merwe said that the draft bill presented by the Commission to government did not have this clause. The reason for that was that the clause dealt with the right to vote. This right was in the Constitution and there was no intention to deal with it in the Bill. The real issue was whether there had to be special provision made for prisoners to vote (whether they had the right to vote or not). If it was decided that prisoners should not vote or that certain categories should not vote, this had to be regulated by the Constitution itself, or the Municipal Structures Act. The IEC felt that the whole section of special votes should be scrapped and it had motivated why to government. He added that 7(1)(b) as it stood was a controversial blanket exclusion which included awaiting trial prisoners as well and therefore the IEC did not think that the section would survive constitutional challenge.

It was decided to provisionally delete 7(1)(b)

Adv Lambani said that 7(2) dealt with the situation where a voter's name was not on the voters roll. The person would have to make a sworn or affirmed statement that he had registered and certain other information and proof required had to be included. If the statement was false then criminal proceedings could follow.

Mr Grobbelaar wanted to know what kind of proof was needed. Could people simply come and say in an affidavit that they had registered? People should not simply be able to allege that they had registered.

Adv Lambani said that the registration stickers could be an example of proof. A manual receipt could be another. In the process of printing out a voters roll it could be that a name was left out due to some error. The name could thus be included in the computer database but for some reason it did not get printed. This had happened in the past.

Mr Waters said that at a previous meeting he had asked the IEC how they would clarify the authenticity of the affidavit. The IEC had said that they would not be able to check on every affidavit since it did not have the manpower. The IEC now mentioned that if an affidavit was false then legal action would be taken against the person. He asked who would then determine this. He said that someone could easily steal a zip-zip machine and print out receipts. There had been allegations in the previous election that this was happening in some rural areas in particular. How would the IEC ensure that zip-zip machines were not stolen or misused.

Mr van der Merwe said that with the new demarcation process a reorganisation of voting districts had to occur and thus there was a bigger chance of errors occurring with voters rolls. The process of getting on to the voters roll via section 7(2) was less susceptible to fraud than the initial registration process, since there were more checks with 7(2). If someone therefore wanted to be fraudulent, it would be easier to do so at the initial registration process. It was a fallacy to imagine that one could influence the election by vast numbers with fraudulent tactics, given the number of checks involved, for example the indelible ink marking as well.

Mr Mokoena said that problems could arise when people went to the wrong voting station, due to the new demarcation process. He suggested that adjacent voting stations had copies of each other's segments of the voters roll to direct people coming to the wrong voting stations on voting day, to their correct venues.

Ms van Wyk agreed with this and said that with the new demarcation people may be voting in different wards to where they had previously voted. The presiding officer should at least have a map of the different wards so that he could see where voters had to vote in relation to where they lived.

Mr van der Merwe said that this was an administrative issue.

Mr Mokoena said that such a provision had to be incorporated in the Act or the regulations.

He also believed that there should be a standardised affidavit acceptable to everyone. This would prevent discrepancies and people being turned away at voting stations by Electoral Officers who did not want to accept certain affidavits which they believed lacked information.

Mr van der Merwe said that such forms would be available at voting stations.

Mr Mokoena wanted to know whether there would be a Commissioner of Oaths at each voting station.

Mr van der Merwe said that a Commissioner of Oaths was not necessary since the statement could be an "affirmed statement".

Mr Pretorius wanted to know whether it could not be added that the presiding officer should contact the office where the application forms for registration were kept, to verify that registration had occurred?

Mr van der Merwe said that the IEC welcomed any suggestions in respect of checks and balances. However making the presiding officer phone various places on voting day was unpractical.

Clause 8 Postponement of elections
The Commission may request the Minister or the MEC (in the case of by-elections) that the elections be postponed to another date if it was not reasonably possible to conduct free and fair elections on that particular day.

Mr Lekgoro asked if the Minister and MEC had a say in the decision to postpone the elections.

Mr Lambani said that they did have a say since they had to determine the evidence upon which the Commission reasonably believed that circumstances were not conducive to free and fair elections.

Clause 9 Postponement of voting at a voting station
In contrast to Clause 8, this postponement applied to a particular voting station. The decision must be taken before voting commences at that station.

Mr Lekgoro had a problem with the potential 90 day scope for revoting in Clause 9. He suggested that only seven days be allowed. He said that if the elections took place on 1 November 2000 then the 90 day period was too long a delay since the Commission may postpone elections at a voting station and then only hold it again in late January.

The co-chairperson, Ms L Jacobus (ANC, NCOP) agreed with Mr Lekgoro saying that should one voting station only hold elections after sixty days, they would not be able to constitute the councils or district councils.

Mr van der Merwe assured the committees that the IEC would do everything that it could to complete the elections as soon as possible. If Section 9 was applicable then this would mean a postponement of the announcing of the results of the overall elections, which had to be done within seven days. If the process of the re election exceeded this seven day period the IEC would have to apply to the Electoral Court for the results to be announced at a later time. If the ninety days are overstepped then according to the Municipal Structures Act there has to be a by-election. He hoped that Clauses 9 and 10 would not have to be used.

Prince N Zulu (IFP) felt that the 90 day period should be reduced. In answer to his concern about which authority would be in place during the 90 day period, Adv Lambani pointed out that the Municipal Structures Act provided that a council continued to exist until the next one was elected.

Mr Waters was concerned that the IEC had confined itself to announcing election results within seven days. He felt that this could be impractical. If there was political violence in an area, it could require more than seven days for it to cool down before a re-election could be held. If the municipal elections were in December then the seven days could overlap with public holidays nor could hold by-elections fairly since people would be away on holiday.

Clause 10 Revoting at voting stations
No discussion.

Clause 11 The election timetable
No discussion.

Clause 12 Appointment of local representatives to be able to perform delegated functions on behalf of the Commission
No discussion.

Clauses 13 Parties contesting elections who were registered with the IEC - No discussion.

Clause14 Submission of party lists and the names of party candidates. 14(4)(a) stated "If a party omits to attach to its party list all the documents mentioned in subsection (3), the Commission must notify the party in writing.

In answer to Mr Lekgoro's query whether there was another method whereby parties could be notified, Adv Lambani said that the idea about notification in writing was to ensure that the party did not complain afterwards that it had not received notification.

Clause15 List of parties contesting elections by way of party lists and the certification of party lists.
Prince N Zulu (IFP) said that with the provincial and national elections, parties had the right to juggle around the names on their party lists. He asked if the same could be done at the local government elections.

Adv Lambani said that the Municipal Structures Act required that party lists be continually updated.

Clause 16 Nomination of ward candidates.
No discussion.

Clause 17 Requirements for ward candidates to contest election
Independent ward candidates must submit on a prescribed form the endorsement signatures of at least fifty voters whose names appear on the segment of the voters' roll for any voting district in the ward. There was other documentation which needed to be attached to a nomination as well.

Mr Waters asked why independent candidates were not afforded the same rights as parties. For example in 14(4) if a party omits to attach the necessary documentation to its party list, they would be notified in writing and given time to rectify this. There was no such provision for independent candidates.

Mr van der Merwe said that in a metro there could be party lists of 50-70 people. Should there be an omission of one unimportant document, it would only be fair that the party should be able to rectify this. It did not affect the party's participation. With an individual candidate, registration was a once-off matter. A mistake would be detected easily. There was therefore no need to provide an additional opportunity for an individual candidate to provide documents.

Ms L Jacobus asked if there was an omission by a party of certain details of a candidate when it sent in its party lists for the 900 wards, would the IEC contact the party or the candidate?

Mr van der Merwe said that there would be no distinction in this case. A party candidate in this respect would be subject to the same provisions as an independent candidate. The only difference would be that a party candidate would be nominated by the party. The party candidate would in this example not have an additional opportunity to provide documents. It was only when the party list had a deficiency that there could be rectification.

Mr Waters said that fifty endorsement signatures were too low. He suggested 2% of the ward or 500 signatures (whichever was the lesser of the two) as in 1995. Mr Grobbelaar echoed this sentiment.

Mr van der Merwe said that one had to find the balance in relation to the number of signatures required which would not prevent the genuine candidate from participating. The IEC had considered this for a long time and had come up with fifty. Percentages were difficult since it would differ from ward to ward and the number would have to be worked out for each instance. It was better to have a fixed number. The committee would perhaps be better placed to decide what this fixed number should be. What cash deposit had to be paid was also an issue.

Mr Mokoena brought the discussion on this clause to close saying that the deposit referred to in 17 (2) (d) would serve as a deterrent from "every second person" being nominated as an independent candidate. He agreed with the fifty signatures and said that it was not that easy to get fifty signatures.

Clause 18 List of ward candidates to contest ward election
No discussion.

Clause 19 Establishment of voting stations
No discussion.

Clause 20 Relocation of of voting stations
No discussion.

Clause 21 Boundaries of voting stations
No discussion.

Clause 22 Mobile voting stations
These would be used in sparsely populated areas, and would move from area to area according to a time-table. Clauses 19 -22 were reproduced from the Electoral Act.

Ms Van Wyk was concerned with the use of "may" in 19(2). She felt that there had to be greater certainty. Adv Lambani pointed out that 19(2) was an amplification of 19(1) which said that the IEC "must" establish a voting station. 19(2) was an enabling provision that once a voting station was established, in certain areas the IEC "may" establish a voting station as well as a mobile voting station.

Clause 23 Ballot papers
No discussion.

Clause 24 Ballot boxes
No discussion.

Clause 25 Voting compartments
No discussion.

Clause 26 Voting materials
The Commission was charged with the design of ballot papers, ballot boxes and voting compartments and with the supplying of voting materials to presiding officers.

Mr Grobbelaar felt that ballot papers had to have serial numbers since in the previous election there was inaccurate packaging of batches of ballot papers into batches of hundreds. There were varying numbers in batches, from 95 - 105.

Mr van der Merwe said that the printers were not accurate in the last election in respect of ballot papers. This would not happen again. The numbering of ballot papers as well as counterfoils had come into the debate on how to ensure the credibility and legitimacy of an election. According to him the numbering would simply serve to reconcile the number of ballot papers in a book. There was a major financial consideration here as well. If ballot papers were perforated and bound into a book with numbering and counterfoils, there would be a big difference in cost.

In answer to a query from Mr Waters, where parties would appear on the ballot papers would be decided by lot. The IEC had not really thought about what would happen with individual candidates. This would be sorted out in consultation with the party liaison committee

In response to a query on which languages would be used on ballot papers,
Mr van der Merwe said that this was a very difficult issue and any help offered by the committee would be appreciated. Section 23(b) said:" The Commission must determine the language to be used on a ballot paper, taking into account the election in which that ballot paper is to be used"

Mr Mokoena said that this clause would create much confusion and allow people to assert unrealisable rights.

Mr van der Merwe felt that Commission would certainly not have great problems with the deletion of this. It was quite an onerous provision.

Clauses 27 to 38
These clauses sought to provide for the appointment of the various officers that will be responsible for managing the voting and counting processes as well as their powers and duties. Clause 28(3)(a) had been discussed in a previous meeting and was not raised again.

Mr Lekgoro wanted to know whether MPs and MPLs were excluded in terms of Clause 37 from being appointed as officers in the election.

One of the State Law Advisors felt that 37(1)(c) indeed excluded them since they held political office.

Clause 39 Appointment of agents
No discussion.

Clause 40 Powers and duties of agents candidates within a voting station
In terms of 40(2)(b) candidates and agents were not allowed to wear certain clothing that reflected political party colours/affiliation.

Mr Lekgoro and Ms Jacobus objected to this. Ms Jacobus said that in the previous election there was a similar provision which was scrapped by regulation at the eleventh hour, causing much confusion and even resulted in voters (who were wearing party colours) to be turned away at some stations where the news of the scrapping had not yet filtered through.

Mr Lambani said that there had been confusion in that election since this was intended to apply only to party agents and candidates and yet voters had been turned away. Certain presiding officers had interpreted the wearing of party colours as electioneering which was not permitted on election day. It was debatable whether voters in general should be barred since they spent a short time voting but he nevertheless he felt that party agents should be disallowed from wearing party colours and other things prohibited by the section.

Mr Mokoena felt that in order to have a free and fair election, a contributory factor would be an absence of confusion and friction. He suggested that there was no danger in deleting this clause and allowing people to wear whatever they pleased. One could not draw a distinction between voters and party agents and say that the voter was entitled to wear anything but the agent was restricted. Voters wanted to be able to recognise their party agents on voting day. This gave voters a sense of reassurance. To make people identifiable did not do any harm as long as there would be no speeches and rallies.

Ms L Jacobus pointed out that inadvertently wearing clothes that matched party colours would mean that an agent would be turned away.

Another member felt that this issue had to be debated at party level since it could cause another upheaval.

Mr Pretorius felt that the section should be left as is to avoid unnecessary friction.

Ms Van Wyk also opposed the deletion.

This issue will be taken to parties and debated again.

Clause 41 Accreditation of observers.
No discussion.

Clause 42 Powers and duties of accredited observers
No discussion.

Clause 43 Accreditation of persons providing voter education.
No discussion.

Clause 44 Officers at voting stations
No discussion.

Clause 45 Hours of voting
Voting stations had to open at 07:00 and remain open till 21:00. In certain circumstances the Commission may determine different voting hours and must ensure sufficient publicity of those hours. It may extend voting hours till midnight, however voting has to continue at a voting station until every voter has voted who reported for voting at that station before the closing time.

Bishop Tolo had a problem with the fact that some voting stations opened earlier than others and some stayed open longer than others, yet people working at voting stations received the same pay.

Adv Lambani said that the times which he had indicated above namely that voting stations had to open at 07:00 and remain open till 21:00 were supposed to be the times that the voting stations adhered to. Even if it appeared that the segment of the voters roll for a voting station had been completed by for example 18:00, because of the possibility that a voters name appeared on the wrong voter's roll or was omitted completely, that voter should be given opportunity to vote within the full time allowed.

Mr Skhosana proposed that there be no closing or opening time and that the voting station remain open for 24hours.

Adv Lambani said that it would be very difficult to implement this suggestion since voting stations would have to be ready for voting a minute after midnight until the following midnight. This was impractical.

Clause 46 Initial Procedures
These procedures include checking of ballot boxes in the presence of party agents to make sure that they were indeed empty.

Clause 47 Voting Procedure
This was a duplication of the procedure previously used in the June 1999 election with the necessary changes relating to local government as prescribed by the Municipal Structures Act.

Mr Pretorius said that where there would be three ballot papers, would voters receive all three at once?

Mr van der Merwe replied that normally all would be received together

Clause 48 Assistance to certain voters
A person other than the presiding officer or voting officer may assist a voter with voting if the voter requires assistance due to physical disability (which included blindness). The person providing assistance has to be 18 years or older and not an agent or candidate and must do so in the presence of an accredited observer and two agents.

Clause 49 Issue of new ballot papers
No discussion.

Clause 50 Marking of hand
As it stood, the Commission would have a discretion whether or not to employ a marking of the hands.

Mr Waters asked whether people with objections would be allowed to fill in affidavits and be exempted (should the marking of the hands be implemented).

Mr van der Merwe said that the IEC would think about this suggestion, but until now it had not considered this.

Clause 51 Objections concerning voting
No discussion.

Clauses 52 to 54
Clauses 52 and 53 regulates the sealing of full ballot boxes, completing of ballot paper statements and sealing of voting materials. Clause 54 regulates voting at a mobile voting station.

The meeting was adjourned.