Ministerial Advisory Committee Report on Electoral Reform & Electoral Amendment Bill; with Minister

Meeting report

The Chairperson welcomed everyone. He explained that the Committee would receive a presentation from the Minister on the process following the Constitutional Court Judgement on the participation of independent candidates in national and provincial elections. He appreciated the work of the former Minister and his team, on the work done to process and consolidate the views of all stakeholders in the consultative workshops. The Minister and Cabinet had provided a framework of how to move forward, given the Constitutional Court Judgement. The Committee would receive that presentation from the Minister.

Introductory Remarks by the Minister of Home Affairs
Minister Aaron Motsoaledi noted the officials present from the Department of Home Affairs and the Legal Team. He communicated the apology of Deputy Minister Njabulo Nzuza.

He outlined the two documents that would be presented. The first would be the report prepared by the Ministerial Advisory Committee on the electoral system reform and the second would be the Memorandum on the Electoral Amendment Bill, which was the explanatory document that accompanied the Bill. He would also highlight clause 34 of the Bill for the attention of the Committee.

Presentation of Final Ministerial Advisory Committee Report on the Electoral System Reform
Minister Motsoaledi presented the Final Ministerial Advisory Committee Report on the Electoral System Reform to the Committee. He highlighted a number of key aspects including the process undertaken, what information was taken into consideration and the two proposed options.

Guided by the 2020 Constitutional Court judgement that citizens should enjoy the right to stand for political office independently of political parties, the Ministerial Advisory Committee set about finding a model for an electoral system that could accommodate independents while preserving the benefits of the existing electoral system. This specifically included the constitutional requirement of general proportionality of representation.

The Ministerial Advisory Committee explored a variety of options and heard from a range of public stakeholders in the course of its deliberations. In the end the Ministerial Advisory Committee members were not able to reach a consensus on a single option but did succeed in narrowing down the choices to two options, formulated as a Minority and Majority Report.

The Minority Report proposed a slightly modified multi-member constituency which would accommodate independents but required relatively minimal changes to the Constitution. This option favoured inserting independents into the existing electoral system, enabling independents to compete with political parties for votes.

The Majority Report proposed a single-member constituency option which favoured introducing single-member constituencies, with proportionality secured via party lists. In this case independents would stand as individuals in constituencies and compete together with associates for the party-list vote.

(See Final Ministerial Advisory Committee Report for further information)

Presentation of Electoral Amendment Bill Memorandum Final
Minister Motsoaledi presented the Memorandum of the Electoral Amendment Bill. He highlighted a number of key areas as well as scenarios under the proposed Minority/Minimalist option.

The Minimalist option for allowing independent candidates was outlined. This option entailed modifying the existing multi-member electoral system to accommodate independent candidates in the national and provincial elections without many changes to the legislation. This included not interfering with the constitutionally required general proportionality. The 400 seats in the National Assembly would continue to be divided in two, 200 seats would be elected from the nine provinces or ‘regions’ (sometimes called the ‘province to national lists’).

Attention was brought to the issue of ‘wasted votes’ in item 22.1 of the Memorandum. If a candidate stood as an independent and received 50 000 votes, and the quota for a seat was only 40 000 votes, there would be nowhere for the excess 10 000 votes to go. This was what was often called ‘wasted votes.’ While it was not currently part of South Africa’s system of national or provincial elections, ‘wasted’ or ‘lost’ votes were a common feature of many other election systems, including single member constituency systems. It was suggested that the votes could not be considered to be truly ‘wasted,’ as an independent candidate who ran for the National Assembly as an independent and was elected, would have achieved their objective. The fact that one could have been elected with fewer votes did not change that.

The Minister took the Committee through various electoral scenarios involving the Minority option and how this might impact representation.

It was noted that the precise threshold of supporter numbers and monetary deposits would have to be carefully chosen to strike the appropriate balance between facilitating participation of serious independent candidates while limiting the number of independent candidates who could contest the election, such that it produced practical difficulties. Provision would be made for the deposit amount and threshold voter support to be determined and prescribed by the IEC. The IEC could then revise this under changing circumstances.

It was proposed that the Amendment Bill should include a restriction on the ability of members of political parties to run as independent candidates. Section 33(1) of the Kenya Elections Act 42 of 2011 provided qualifications for contesting an election as an independent candidate. This included that a person could not have been a member of any political party for at least three months prior to the date of election. The argument for the requirement was that if a member of a political party lost an internal race to be included in a party list, that person should not be able to utilise the election to achieve a similar result which would undermine party politics. This requirement was included in the Bill under clause 33A(3)(f).

(See Final Memorandum for further information)

Discussion
Mr W Horn (DA) stated that as a visitor to the Committee he had communicated some comments to his colleague Mr Roos.

Ms T Legwase (ANC) stated that the presentation was informative and detailed. She highlighted her concern that the Committee was given 24 months to deal with the recommendations of the Constitutional Court, and there were only six months remaining.

Ms L van der Merwe (IFP) noted that a lot of work seemed to have gone into the presentation. She thanked the Ministerial Task Team. She was concerned about the timeframes the Committee was left with. If the Committee returned to Parliament in February 2022, there would only be four months left to finalise the Amendment Bill. She was worried that the Committee still needed to conduct national public hearings. She did not think that the Committee could finalise the process without consulting their constituencies and the public. It was ultimately the public that needed to decide what changes needed to be made to the electoral system. From a political party perspective, Members would need to take the presentations back to their caucuses and parties for direction about the Minority or Majority Reports.

She noted that the Minister had said that Cabinet debated the issue twice, and then decided that the Electoral Amendment Bill should be based on the Minority Report option. What were the reasons why Cabinet decided on that option? If the minority report was chosen, could it not be deemed unconstitutional later, as independent candidates would not be able to contest or win seats on those 200 national to national lists because they would be limited to the province to national list?

The Minister had outlined the matter of wasted votes, and had commented that this was prevalent all over the world and that surplus votes were discarded. She thought that people in South Africa might argue that the equal value of votes were being undermined.

She suggested there might be some backlash from the public in that very small changes were being proposed in the Bill, in comparison to what was hoped for. People often said that Members of Parliament (MPs) were not accountable to the people that voted for them. The public were hoping for a complete overhaul of the electoral system. At a later stage she hoped to hear from the Independent Electoral Commission (IEC) about how the IEC thought the Committee should approach the issue of registration fees for independents.

Ms M Molekwa (ANC) stated that the presentation was comprehensive and informative. The presentation had covered most of the critical issues and allayed fears. Many people were skeptical about the previous presentation. This presentation had answered a number of those concerns and questions. She requested clarity about what happened with surplus votes for other parties.

Mr M Lekota (COPE) was concerned about the process that the Committee was following. It was not clear what process was followed to bring this proposal before the Committee. He had previously approached the Speaker’s office and submitted what he considered to be a thoroughly worked out proposal. There was now limited time. The Committee was only given a Minority Report. Many of them spent years in the country, in prisons and in exile pursuing the provision in the Freedom Charter that the people should govern. This presentation asked the Committee to consider the Minority Report not a report that gave the Committee both options. It did not give the Committee space to consider this widely, with sufficient time. The Constitutional Court gave the Committee ample time to consider the matter extensively so that South Africans could benefit from the proposal that was presented to the Country at the Congress of the People in 1955.

He highlighted the issue of votes being ‘thrown away’ – he did not care what other countries in the world were doing. When it came to South Africa, why would it be desirable to throw away the votes of so many people, when generations had struggled so that there could be justice in the country? He suggested that the Committee should go ‘back to the drawing board’ if needs be or back to the Constitutional Court to state that it had not received the opportunity that should have been given to consider the amendment of the Electoral Act. The Electoral Act denied so many people. After going the long route to the Constitutional Court – ‘even that opportunity was denied them.’ What process was followed to state that the Committee should only consider the Minority Report?

This was wanted ever since the Constitution was drafted, written and accepted. Why was it that the Bill the Congress of the People took to Parliament had never been presented to the people of South Africa to consider? Why was it not presented to the people?

Ms M Modise (ANC) appreciated the effort of putting together the proposal and providing the Committee with possible options to remedy the issues identified by the Constitutional Court. She noted that the Constitutional Court would have provided limited solutions or provisions for the specific items for the amendment to deal with - she appreciated the work done by the team… [Ms Modise lost connection 1:22:11].

Mr A Roos (DA) stated that there was only six months till the June 2022 Constitutional Court deadline. Although the presentation had been positioned as two options, there was only one draft bill that spoke to the judgement. It ignored calls made two decades before in the van Zyl Slabbert Report and by the majority in the Ministerial Advisory Committee (MAC) Report. The common denominator in both of those reports was the public call for direct accountability. It gave the appearance that the African National Congress (ANC) government was trying to avoid direct accountability by putting the Committee in a position where they were squeezed toward the minimalist approach because of time pressure. It took nine months for this report to come up, and the van Zyl Slabbert Report could have simply been looked at. He thought South Africans would be disappointed by the false option that the Committee was being presented with.

The Committee was advised some time back when looking at the timelines that 9 October 2021 was the cut off for the shortest time to process the Bill, the Committee was already two months beyond that. It was not simply about processing the Bill by the Constitutional Court deadline. The IEC needed the opportunity to implement that legislation. That could only happen once the Bill was enacted. The Committee needed to decide what the best way forward would be to ensure that the Constitutional Court deadline was met, and that the IEC had sufficient time to implement the new system.

He suggested that more information was needed to understand the constituencies geographically. The Municipal Demarcation Board would not be able to deal with the demarcation of constituencies without significant legislative amendments to its own regulatory legislation, processes and criteria used to demarcate constituencies. The demarcation of constituencies needed to properly and fairly enable the participation of independents, it would not make sense to lump them together into one constituency, in different communities, with vastly different characteristics and needs. if one accepted that independents would be community-based candidates, the meaningful participation of independents could be prevented through the demarcation process (specifically if it was a province). Demarcation was key in a system where no single party obtained a strong majority of votes nationally. What was being alluded to in the documentation, from a party that failed to win the popular majority, could lead to a party winning more constituencies and the number of MPs it was entitled. This would defeat the constitutional requirement of proportionality. How would this be prevented and what were the plans around demarcation? Should Parliament decide the route to go? How would option two work, if half of the (MPLs) were to be elected from constituencies? In the smaller provinces this would mean that the same constituency boundaries could not be used to elect MPs and MPLs. Why was the conventional approach not followed, whereby the Department requested the Speaker of Parliament to introduce the Bill and the State Law Advisor to start the tagging process? Why was the Bill changed to be for information rather than for consideration? Was this not causing additional delays in an already late Bill.

Mr K Pillay (ANC) noted that there was someone prompting Mr Lekota, when he had been asking questions, on what points to raise. It was seriously irresponsible for a Member to be doing that while on a meeting. He wanted to applaud the Minister and the team responsible for drafting the Bill, including the Advisory Committee that was setup. It had come a long way. It was important to appreciate the work that had been done. It was important that everything the Committee did had reference to the Constitution and promoted free and fair elections.

Minister Motsoaledi said it was generally believed that the van Zyl Slabbert Report should be implemented, however the presentation was a big improvement on that report. The van Zyl Slabbert Report of 2003 was a 31-page document. In that whole report, he had not seen the word ‘independent’ mentioned once. There was no intention to conduct independent elections in that report. The thing it brought forward was the issue of constituencies. Those constituencies would have been contested by political parties – not independents – he wanted to state that upfront. There were many people who believed that the issue of independents being elected was being ignored. The issue of independents came from the Constitutional Court judgement. The Judgement insisted that no matter what was done independents needed to be accommodated, which was being done. The power rested with Members to interact with the reports practically. Parliament was allowed to arrive at its own conclusion, but he encouraged Members to really engage with the documents.

The concerns around time pressure were valid – but it would not be correct to rush the process and bring ‘half-cooked’ work to Parliament. Lots of workshops had to be conducted and a lot of papers needed to be considered, both local and international. It was a couple months’ worth of work. Time had been lost – but it was left to Parliament to decide what needed to happen.

Matters of this nature, such as bills and policies were debated in Cabinet Committees, where there was sufficient time to do so. Such matters were not debated in Cabinet but Cabinet Committees. After a thorough debate, it would be presented to Cabinet as a decision. The President had instructed that it be debated by the Cabinet Committee and the full Cabinet due to the nature of the Bill. This Bill was a serious matter that needed widespread consultation. The practical facts of the decision for a Minority Report had been put in-front of the Committee. The Advisory Committee had put two options to the Department of Home Affairs and the Department had chosen a particular option which was presented to Cabinet. If Parliament believed differently, the issue should be debated; the Department could further outline how it had arrived at that decision.

Option two would come to the same situation of independents and representation in Parliament. Option two stated that the country be divided into 200 constituencies. An independent or member of a political party would stand in one of those 200 constituencies. The second list would state people who came straight from political parties in proportion – independents would still not participate. Independents would not participate in the compensatory list under option one nor two – that was only for political parties.

The Municipal Demarcation Board demarcated the country into various constituencies, wards and metros for the sake of local government elections. That came through legislation. If option two was chosen, the legislation would need to be changed so that the Municipal Demarcation Board could also demarcate the Country for the purpose of national elections. The present Municipal Demarcation Board would not be able to do that.

In the Department’s effort to save time, it was brought to Parliament. The State Law Advisor’s Office was busy giving the Department a certificate as well as legal advice on the matter. The State Law Advisor’s Office would likely do so by the end of the week. The Department was told that the Bill could be brought to Parliament, even if Parliament was on recess. Everyone was chasing time. There were a lot of papers and experts to consult. The issues were not as easy as Members would like to think. He noted the comment that the public wanted a complete overhaul of the electoral system. He suggested the Committee look into that during public consultations.

He responded to the issues raised by Mr Lekota. When the workshop took place, the Committee decided that the Bill, which was submitted together with the policy proposal submitted to the Department, needed to be taken over and given to the Task Team. The Task Team went through everything, including the submissions made. It was not that submissions were ignored. There was an agreement that everything be published together. The Bill that was submitted by Mr Lekota was not ignored, it was definitely looked into. It was the responsibility of Parliament to look at all possibilities, especially during public hearings.

He noted that Mr Lekota said that he ‘did not care what the rest of the world did with surplus votes.’ He suggested proposals be given on this. In ward elections people won wards with minimal votes and the rest of the votes were not counted. That was why in the document it was said that these things happened all over the world. It had never happened in the country – that was why it made some people angry. South Africa could propose a different solution to the rest of the world – but this was unlikely given that the rest of the world had operated in such a manner for ages. Of the fifteen systems that had been considered globally, none of them had found a solution to the issue of lost votes.

The Chairperson thanked the Minister. He noted the concerns about the time constraints [unclear audio 1:43:51]. A thorough consultation with stakeholders needed to take place. Once the Bill had satisfied all the required processes, it would be taken to the public and then would come back to Parliament [Unclear audio 1:44:53]. The process was waiting on the State Law Advisor to provide a legal opinion, so that the Minister could introduce the Bill in Parliament. Parliament would be rising, but that did not mean that the Bill would not be introduced to Parliament for interaction. The consultation process would be scheduled in January 2022, once the Committee and Parliamentary Legal Services had received the process from the certification of opinion. A roadmap could then be developed about how the Committee would interact with public consultations and attempt to reach the deadline of the Constitutional Court judgement. This deadline had to be met. He asked that Members take the presentations to their parties, stakeholders and constituencies to engage on the options outlined.

Consideration and Adoption of Outstanding Minutes
The Chairperson introduced the item and asked if Members had received and considered the minutes.

Mr Roos stated that he had; he had no problems with the minutes.

Ms van der Merwe indicated that she had similarly received the minutes and had no corrections.

Ms Molekwa indicated that she received the minutes.

Minutes of 30 July 2021
In the meeting held on 30 July 2021, the Committee elected an Acting Chairperson and received a briefing by the IEC on the Moseneke inquiry report into the free and fair local government elections during the COVID-19 pandemic.

Ms Legwase moved to adopt the Minutes.

Ms Molekwa seconded the adoption of the Minutes.

The Minutes of 30 July 2021 were adopted.

Minutes of 07 September 2021
In the meeting held on 07 September 2021 the Committee elected the Chairperson and received a briefing by the Parliamentary Budget Office on the Second Special Appropriation Bill [B17-2021].

Ms van der Merwe moved to adopt the Minutes.

Ms Modise seconded the adoption of the Minutes.

The Minutes of 07 September 2021 were adopted.

Minutes of 10 September 2021
In this meeting, the Portfolio Committee and Select Committee on Security and Justice received a joint briefing by the IEC on the implications of the Constitutional Court ruling on the local government elections and the IEC’s readiness for the local government elections in 2021.

Ms Legwase moved to adopt the Minutes.

Ms Modise seconded the adoption of the Minutes.

The Minutes of 10 September 2021 were adopted.

Minutes of 24 August 2021
In the meeting held on 24 August 2021 the Committee elected the acting Chairperson, received a briefing from the Department of Home Affairs on the Fourth Quarter Performance and Expenditure for 2020/21, considered and adopted minutes and considered and adopted the Committees Annual Plan and Oversight visit report to the Government Printing Works (GPW).

Ms Modise moved to adopt the Minutes.

Ms Molekwa seconded the adoption of the Minutes.

The Minutes of 24 August 2021 were adopted.

Minutes of 17 August 2021
In this meeting the Committee elected an acting Chairperson, received a briefing by the Content Advisor on the Committee’s Strategic Annual Performance Plan and considered and adopted the plan as well as considered and adopted the oversight visit report to the GPW.

Ms Legwase moved to adopt the Minutes.

Ms Molekwa seconded the adoption of the Minutes. 

The Minutes of 17 August 2021 were adopted.

Minutes of 9 November 2021
In this meeting the Committee received a briefing by the IEC on the Annual Report and Financial statement of the IEC for the 2020/21 financial year as well as a briefing by the GPW on the Annual Report and financial statements of the GPW for the 2019/20 financial year.

Ms Modise moved to adopt the Minutes.

Ms Legwase seconded the adoption of the Minutes.

The Minutes of 9 November 2021 were adopted.

Minutes of 23 November 2021
In the meeting held on 23 November 2021 the Committee received a briefing by the Department of Home Affairs on the Border Management Authority (BMA) rollout plan and funding as well as considered and adopted the Budgetary Review and Recommendation Report (BRRR) 2021.

Mr Roos moved to adopt the Minutes.

Ms van der Merwe seconded the adoption of the Minutes.

The Minutes of 23 November 2021 were adopted.

Minutes of 30 November 2021
In this meeting the Committee received a briefing from the Department of Home Affairs on the implementation of the plans to resolve downtime at the departmental offices and progress on the implementation of the Automated Biometric System (ABIS).

Ms Molekwa moved to adopt the Minutes.

Ms Legwase seconded the adoption of the minutes.

The Minutes of 30 November 2021 were adopted.

Minutes of 16 November 2021
In this meeting the Committee received a briefing from the IEC on their 2020/21 Annual Report as well as a briefing from the Content Advisor on the Draft 2021 BRRR. 

Mr Roos moved to adopt the Minutes.

Ms Molekwa seconded the adoption of the Minutes.

The Minutes of 16 November 2021 were adopted.

Discussion
The Chairperson noted that it was the Committee’s last meeting of the year; the draft programme would be shown for consideration. The Committee needed to ensure that the issues that were raised in the meeting with the GPW were properly covered, as it would help to strengthen oversight and accountability. The programme for the following year would be sent to Members before being finalised. The report of the IEC was an important item that needed to be dealt with. The Committee needed to process the reports received today and follow-up with the Department so that the Bill could be considered by Parliament and processed in the required timeframe. He noted the concerns around the time pressure.

Mr Roos expressed that his Christmas wish was to receive the accessibility model in the next week. He wished Members, on behalf of the Democratic Alliance (DA), a blessed festive season. He suggested it might be busy for some of them over the festive season with border issues. He noted that many of them had a hard year due to COVID-19. He hoped that Members would return the following year full of energy with a fighting spirit.

Ms Molekwa thanked the Chairperson for ‘steering the ship’ as well as his patience. She hoped that Members were ready for the congestion at the border gates as the festive season approached. She thanked all the Members of the Committee.

Ms van der Merwe similarly thanked the Chairperson for ‘steering the ship’ as well as for being fair and accommodating. She wished Members a safe and happy festive period. The Committee needed to be mindful that oversight needed to be done at the various Home Affairs Offices. She expressed her concern about the timeframes for the following year and how public hearings would be accommodated.

Mr Lekota noted that it had been a very difficult year due to COVID-19; there had been many losses. He thanked the Committee for its dedication and consistency. He hoped that everyone came back energised and continued to observe COVID-19 protocols.

Ms Legwase thanked Members and the Chairperson specifically.

Ms Modise wished Members a restful and joyous festive season. She wished them all good health. She appreciated the commitment of all Members. It had been a long tough year - the Committee had prevailed. She appreciated the participation and work of the Committee Members. The attitude, tolerance and respect displayed by Members, despite coming from different parties, was commendable. She thanked the Chairperson specifically.

The Chairperson appreciated the well wishes and the attitude of the Committee. He thanked the Committee Secretary for his assistance and efforts. He thanked all the Parliamentary support staff and everyone who assisted the Committee.

Consideration of Draft First Term Programme for 2022
The Chairperson introduced the draft first term programme for 2022.

The Committee Secretary took the Committee briefly through the draft programme.

The Chairperson asked that Members indicate any changes to be made so that the Committee Secretary could send through a final draft to Members for their consideration.

Mr Roos stated that on first glance he was quite happy with the programme. The Committee needed to keep pushing the war on queues. He had thought that toward the end of the term the Committee would receive an update on it. In the previous financial year, the Committee was told that there would be a two-year project. It turned out that it was not going so well. It was a critical issue - once a quarter that discussion needed to take place to ensure everything was on track.

Ms Legwase stated that she thought everything was in order. She asked that the Committee find a time to deal with tracking the resolutions that were taken to see if progress was being made or not.

Mr Pillay stated that a report on the local government elections should be a priority and the Committee had requested an update about the smart offices.

Mr Lekota stated that he had nothing to add, he agreed with what Members had indicated.

Ms Modise stated that the Committee needed to do an oversight visit of the BMA. The Committee needed to look into the GPW, specifically taking into account the past Auditor General’s report. Those issues should be dealt with in the first quarter of the following year.

Ms van der Merwe suggested that when the Minister updated the Committee on the Shepherd Bushiri case, the Committee could receive a briefing from the BMA and Emigration Unit as well as the work of the Inter-Ministerial Task Team on the issues of employment of foreign nationals in certain sectors. She supported Mr Roos on the suggestion of the war on queues, but she noted it was indicated for the 22 March 2022.

Closing remarks
The Chairperson asked that the Secretary write a letter to the interim leadership that dealt with the quotas of employment [unclear audio 2:28:50] to propose that a joint meeting take place to receive a detailed briefing on that. He asked that the items highlighted by Members be included in the programme and then communicated to Members for consideration.

The meeting was adjourned