Municipal Electoral Bill: briefing and discussion

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
23 May 2000
LOCAL GOVERNMENT MUNICIPAL ELECTORAL BILL: SUBMISSION

Documents handed out:
Draft Municipal Electoral Bill
Municipal Electoral Bill (B35-2000) tabled 23/5/2000; not yet available online]
SALGA submission

SUMMARY
The discussion focused on various concerns raised by the South African Local Government Association around the Bill. They included the possibility of fraudulent voting by persons not on the voters roll, the failure to address the issue of tampering with ballot papers, the suggestion of having serial numbered ballot papers, the criteria for disqualifying persons from becoming election officials, the inclusion of special votes and the need for unlimited power of the presiding officer to require persons disrupting the electoral process to leave. The suggestion that a local electoral officer should be able to open another voting station and split the roll on election day, provoked lots of debate, as did the issue of the voting of persons not appearing on the voters roll.

MINUTES
SALGA submission on Municipal Electoral Bill
The Acting CEO of the South African Local Government Association (SALGA), Mr T Mokoena, briefed the committee on the work that SALGA does. This included its involvement in the passing of legislation affecting local government, such as the Municipal Structures Act and Municipal Systems Bill.

Mr Gerber of SALGA raised the problems which SALGA had with various sections of the Bill (see submission).

Advocate Edward Lambani and Mr Fanie van der Merwe of the Independent Electoral Commission were then requested to focus on the concerns raised by SALGA while highlighting of various aspects of the Bill.

IEC Briefing on Bill and response to SALGA's concerns
Advocate Lambani referred the committee to the back of the Bill where the Memorandum explained the necessity for the Bill. It also explained the Bill section by section.

The Bill is implementing the "how" of voting. The Municipal Structures Act provided the electoral system. This Bill lays out the process to be followed to get people elected. What was left for regulations would be very minimal.

There had to therefore be a law which would prevent publications of regulations in respect of Local Government elections, for example, a day before the elections. The Bill therefore made provision that there could be no such legislation passed less than one month before the elections. (With the 1998 Electoral Act, the IEC had been given the power to pass regulations to address any issue which would enable them to proceed with their work). The Bill was attempting to correct this process.

Definitions
Adv Lambani noted the following concerns raised by committee members:
- Mr I Pretorius (NNP) believed that "institution" should be defined, referring to the reference to institution in 38(8). Mr Pretorius also pointed to the need for an amendment to the definition of "identity documents" to include only green bar-coded ID books.
- Mr K Morwamoche (ANC) said that there was no definition of observers, mobile voting stations, ballot paper statement and counting venues.
It was however agreed that there was no definition needed for ballot paper statement.

Chapter Two: Voter's roll and Election date

Adv Lambani said the voters roll was the same common voters roll compiled in terms of the Electoral Act. These chapters simply took over the process one had to follow in order for one to appear on the voters roll, which was contained in Chapter 2 of the Electoral Act. Section 6 dealt with the certification of segments of the voters roll to be used in the election. At a particular time the chief electoral officer would certify a roll that would be used in the particular election. Thus there had to be a cut-off time for registration. One had to avoid people coming on the day of the elections to register to vote as this would necessitate liaison with Home Affairs to ensure that such persons were South African citizens for example.

He said that there would be time for people to inspect those segments of the voters roll at the head office of the Commission as well as at the municipal offices where there would be municipal electoral offices.

Section 7: Who may vote

Advocate Lambani said that those imprisoned lawfully on the voting day may not vote. This had to be read with the suggested amendments with regard to ordinary residence in the schedule where it was indicated that prison would not be considered as a place of ordinary residence for the purposes of elections. The concept of declaration voting which was allowed in the last election would not be allowed. The upcoming election would be based more on residence. One would have to vote in the municipality and the ward in which one stayed. One could not simply move from one place to another and demand the right to vote. However there would be exceptions allowed where a person did apply for registration before or on the day the election date was proclaimed and there was evidence in the form of a sworn affidavit needed in this regard.

This section was a concern for SALGA. Mr Gerber said that in terms of Section 7(2) of the Bill, a person is allowed to vote, even if such person is not on a certified copy of the voter's roll, provided that there is certain evidence contained in a sworn or solemnly affirmed statement of proof of certain things including registration to vote. Whilst he agreed that the section may be fine to correct administrative mistakes, it opened the door to fraud. Thus the removal of the section was recommended

Mr Sikakane said that the experience in the previous election had been that there were situations where one would register and the bar-coded registration slip would be pasted in your ID, however at the time of voting your name would appear on another voting district's roll. To compensate for the error and the fact that there was proof of registration, persons had been allowed to vote. He believed that this was the experience which was in the minds of the drafters when including this provision.

Mr Mokoena of SALGA said that the section was aimed to prevent the infringement of the constitutional right to vote due to logistical problems and administrative mistakes, SALGA was simply putting it on the table that on the other hand the section could lead to fraudulent voting by people not eligible to vote. Parliament thus had to exercise its wisdom on this matter.

Mr M Lekgoro (ANC) said that there had to be some verification of citizenship.

Mr Walters (DP) said that since there would probably be a period when the voters roll would be open for inspection. He said that it was surely the responsibility of every voter to ensure that he was on the roll.

Mr van der Merwe said that the voters roll had to be a vehicle to allow voters to exercise their vote. It could not be a vehicle to obstruct people from exercising their vote. The whole existence of the voter's roll was there to prevent double voting and to ensure that people only voted in their wards. However because of various sets of circumstances there needed to be exceptional cases. The person has to prove that he did apply for registration. Secondly the person had to make a sworn statement and if a false statement was made, this was severely punishable. In addition there would probably also be a marking of the fingers which would prevent double voting. The provision was thus reasonable and advisable to have in order to allow people to vote, rather than preventing people from voting.

An opposition party member wanted to know what type of capacity the IEC had to perform random checks on such affidavits to ensure their correctness.

Mr van der Merwe said that the nature of an affidavit was that by the very affidavit, one would try to enforce honesty. If anyone should query it afterwards, it could be checked out and the person could be prosecuted if he had made a false statement. One would not, in a voting station, be able to check on this however. The presence of agents and observers contributed to the IEC having confidence that the system would not be open to fraud.

Another opposition party member asked whether the IEC felt that having an affidavit saying that a person has registered was a sufficient mechanism to prevent fraud. He wanted to know whether it would be possible to issue a separate voters roll for those people with affidavits.

The Chair noted in response that voters who had registered, would simply go on election day and expect to vote, without having checked the roll. This section was thus important to allow such people to go to a police station and make a sworn statement that they had registered and then go and vote.
Mr van der Merwe added that voters' lists would be made available from time to time. It was an on-going process, which would be updated all the time.

A opposition party member wanted to how the IEC would know in which voting district, someone who had registered (but who was not on the roll) had to vote.

Mr van der Merwe said that such person would have had to register in a specific voting district and needed a receipt from that specific voting district. He would thus have to vote in that voting district and no other.

Ms A van Wyk (UDM) wanted to know in respect of these exceptional cases, whether these ballots would be treated as certified votes and counted with all other votes or counted separately.

Mr van der Merwe said that the intention was that they would be counted with the other votes.

Section 10: Revote at voting station
According to SALGA, the issue of tampering with the ballot papers was not addressed. A procedure needed to be identified.

Mr van der Merwe said that section 10 was an addition to Sections 8 and 9 that dealt with the postponement of the election generally or at a specific voting station. It made provision for the unlikely occurrence that a voting station was destroyed or there was a big catastrophe which had interrupted the voting and therefore there had to be a re-vote.

The Chairperson wanted to know why there was not express reference made to tampering with ballot papers instead of assuming that it would be covered.

Mr van der Merwe was not sure whether tampering with a ballot paper was sufficient reason to have a re-vote. He said that any irregularity in the voting or counting which would materially affect the result of the election could be dealt with by way of an objection to the Commission and then further appealed to the Electoral Court. It could also be dealt with by an approach to the higher courts themselves in terms of the validity of the elections.

Section 11: Election timetable
Adv Lambani stated that this would include the timing of the submission of party lists.

Section 12: Appointment of local representatives
This section provided for the maximum decentralisation of the management of municipal elections and the appointment of representatives of the Electoral Commission for each municipality in which an election was to take place.

Section 13: Parties contesting Elections
It proposes that only registered parties be allowed to participate in the municipal elections. This was considered after looking at the Municipal Structures Act which defined what a party was. The Municipal Structures Act had to be aligned in this regard with the Electoral Commission Act which also defined a party for the purposes of participating in an election. All parties had to thus be registered as political parties with the Commission, for them to be able to submit party lists to take part in the elections.

Section 14: Requirement for parties contesting election by way of party lists
This is an amplification of 13(2).

Mr Gerber from SALGA said that whilst Section 14(4) provided for the Commission to allow a party to correct any omissions in respect of its documentation, no provision is made at all for a similar dispensation for ward candidates.

Mr Walters said that Section 14 spoke about a deposit for parties and Section 16 spoke about a deposit for ward candidates. He asked what amounts the Commission was considering for this.

Mr van der Merwe said that this was normally dealt with closer to the elections with the parties by means of the national parties liaison committee. He said that there was provision for individual candidates having to submit a list of fifty people who supported his candidacy. The commission would deal with this in consultation with the parties.

Section 19: Establishment of voting stations
Section 19(1) empowered the Commission to establish voting stations. According to SALGA it had to be amended to allow the responsible election officer to decide that more than one fixed voting station in a voting district could be established and he/she had further to be entrusted with the authority to split the voter's roll between such stations. Mr Gerber said that in order to avoid voting from occurring till three o'clock in the morning, the authority to open another venue and split the voters roll, should be extended down to the local electoral officer level.

Mr Sikakane disagreed and stated that this power should not be allowed. In any case it was immaterial until when voting occurred. It had to be completed whether or not there were long queues and no one could be chased away.

According to Mr Mokoena SALGA was saying that presiding officers should be empowered to open up another voting station. This was for pure logistical reasons. In addition the experience of the June 1999 elections showed that one could in fact not keep people till three o'clock in the morning. They would leave because some might have to go to work or somewhere else. There was also the problem of perhaps voting in a school where subsequently the electricity failed. One could not proceed beyond about six o'clock since it would be dark. Thus one would have to find the IEC and get them to open another voting station. How would this be dealt with. For whatever reason, people could sabotage the elections by perhaps cutting off electricity in an area. There was a plethora of examples in this regard. In those areas where there was political conflict, threats and intimidation to prevent certain people from coming into a certain area, what would one do? This view of SALGA was however subject to debates in the house and was not cast in stone.

Mr Grobbelaar felt that this provision was needed for logistical reasons and did not necessarily mean moving a voting station miles away.

Mr van der Merwe said that it would not be possible for the presiding officer to split voting districts and establish new voting stations on the day of the elections. He felt that this was something, which had to be done long before the elections.

Section 23: Ballot papers

No provision was made for serial numbers on ballot paper counterfoils. It was recommended by SALGA that this be included either in the Act or any regulations that might be promulgated for this purpose.

Mr van der Merwe said that to have ballot papers bound into a book with numbered counterfoils would double the cost.

Section 28: Powers and duties of presiding officers
Section 28(3) deals with the Presiding Officer's power to instruct people to leave the area within the boundary of the voting station, if that person's conduct was not conducive to a free and fair election at the voting station. According to SALGA, as it was currently drafted this provision was too narrow and the Presiding Officer had to be authorised to remove all categories of persons who misbehaved within a voting station. Mr Gerber said that in the past, drunk police officers had interfered with voters. The presiding officer had to be empowered to tell such police officer or any person causing disruptions, to leave the venue.

At first Mr Lambani thought that SALGA's interpretation was wrong in that 28(3) allowed the presiding officer the right to order any person to leave a voting station. Mr Gerber however pointed out that three categories of persons were excluded. SALGA felt that this was unacceptable.

Section 31: Appointment of counting officers
Section 31 (2) deals with the appointment of the voting staff to do the count after the close of voting. According to SALGA, ECLOGA indicated that this should not be allowed as the staff were tired. (This could cause problems with the staff as normally they all wanted to count as well, as they were being paid separately for the count which was normally done over a shorter period than election day).

Section 37: General provisions concerning appointment of officers
According to SALGA, ECLOGA recommended that this list of disqualified persons should include the fact that the person was an immediate family member of any of the parties mentioned in Section 37 (1)(a) - (c). (This probably only applied to a specific Ward and not an entire election).

The Commission agreed to note this concern.

Section 38: General provisions concerning appointment of institutions
This deals with an institution and each of its employees who exercised powers and performed duties in terms of this Act and sought to safeguard their independence in relation to their membership association statements or conduct.

According to SALGA, Section 38(8) was extremely vague and needed to be redrafted more narrowly to have a reasonable application.

Mr van der Merwe said that this provision was an inheritance from the last local government elections where institutions and consultants were used to a great extent to run elections in certain areas of the country. He hoped that it would not be necessary again to ask an institution to conduct the elections in certain parts of the country. He was not too sure whether this section was needed.

Section 39: Appointment of Agents
The number of Agents that a Party and an Independent Ward candidate could appoint differed. It was submitted by SALGA that both groups should be entitled to appoint the same number of Agents. No comment was made.

Section 52: Sealing of full ballot boxes
This deals with objections concerning voting. SALGA submitted that it would be preferable to set out procedure for objections in the Regulations rather than the Act. The reasoning was that one was sitting with a presiding officer who had been trained for two days (if he was lucky). SALGA recommended that only one document should be issued.

Section 55: Special votes
Section 55(3) provided that a special vote had to be delivered to the Presiding Officer of the relevant voting station by no later than the date stated in the election timetable. Special votes had to be delivered to the LEO's office or a designated office instead of opening all voting stations for an extra day. (According to SALGA, very few votes were requested in the last election and to pay for a venue and two officials for every voting district was not cost effective.)

The Chairperson said that the committee had thought that there would not be any special votes. He wanted to know why this section had been included. He said that the IEC had told the committee that according to the Minister and Deputy Minister, there would be no special votes.

Mr van der Merwe said that this provision was not in the IEC's original recommendations.

The Chairperson wanted to know why it was included.

Mr van der Merwe said that since the Bill came from the Minister, he and Cabinet could change anything in the Bill that they wanted to and which they saw as advisable. He said that it had been argued that especially in respect of the disabled, it would be advisable to give any assistance which could be given. He said that he was not arguing in favour of the section but was simply putting this as a consideration.

The Chairperson asked whether the section only spoke of the disabled.

Mr van der Merwe said that the Security Forces engaged in work at the time of the election as well as election officials were also mentioned.

The Chairperson said that the committee had to take a decision on the whole issue of special votes since there had been a broad understanding that this would be excluded. He felt whilst he could understand the point about the disabled, other exceptions were also being catered for. There was no budget for the IEC to get involved in the whole exercise of special votes as well.

Mr Chikane (ANC) felt that it had to be determined who actually included the provision, so that the motivation for its inclusion could come from the right person.

The Chairperson said that the relevant law advisors as well as the Director General had to be contacted in this regard.

Section 79: Jurisdiction and powers of Electoral Court
This dealt with the fact that there was no appeal mechanism against a decision of the Electoral Court. SALGA felt that appeal to the Constitutional Court had to be allowed.

Mr van der Merwe said that 79(1) dealt with infringements of the code. The rationale was that these disputes should be settled quickly so that the elections would not be disrupted by further drawn out legal action.

Section 82: Access to private places
In terms of this section members, employees and officers of the Commission had access to private places when necessary. SALGA said that this could be unconstitutional and the Commission would need to investigate.

Mr van der Merwe said that this provision was in the 1993 and 1998 Electoral Acts and it had never been challenged before.

General Comments by SALGA
The role of Electoral Officers was a very stressful one given the environment in which they had to operate. It was essential that the legislation that informed them of their mandate had to be user-friendly. It would be preferable to have all the details relating to an election either in the Act or alternatively in a set of Regulations. The Electoral Officer would be at a great disadvantage when operating under pressure to cross reference his decisions between the Act and the Regulations for the relevant provisions. This is an important on-the-ground matter which needed to be attended to.

Legislation relating to elections should not be amended within the month prior to elections as this often made it impossible to apply such legislation.

The meeting was adjourned.