Electoral Amendment Bill: follow-up briefing, with Minister & Deputy; Electoral Laws Second Amendment Bill update

Meeting report

Introductory remarks by Chairperson
The Chairperson welcomed Members back for their first meeting of the New Year. The Committee would be briefed on the Electoral Amendment Bill by the Minister and members of his Ministerial Advisory Committee (MAC). Both the Minister and his team have spent much time engaging with stakeholders on the Bill. The Bill was tabled in Parliament on 10 January 2022 and referred to the Committee for further consultation on electoral reform.

Home Affairs Minister, Dr Aaron Motsoaledi requested that the Director-General introduce the officials present at the meeting.

DHA Director-General, Mr Tommy Makhode, introduced the officials present in the meeting.

Electoral Commission Vice-Chairperson, Ms Janet Love, conveyed apologies for the absence of the IEC Chairperson and other commissioners.

Introductory remarks by Home Affairs Minister
Minister Motsoaledi reminded the Committee that he had briefed it on the Ministerial Advisory Committee Report on Electoral Reform and Electoral Amendment Bill on 07 December 2021. At the time, the Office of the Chief State Law Advisor had only provided a legal opinion on the constitutionality of the Bill (2 December 2021) but had not yet certified the Bill. However, the Bill had since been certified and he tabled the Bill in Parliament on 10 January 2022 in writing.

Referring to page 6, he mentioned that the MAC presented two options for electoral reform in the country. The first was the minimalist option, where Parliament would modify the current system to accommodate independent candidates in national and provincial elections without many changes in the legislation, including not interfering with the constitutionally required general proportionality. The second option was a mixed member proportional system, which would require that Parliament implement the current system used in local government elections (LGE) in provincial and national elections. Both options were taken to Cabinet and it settled on the minimalist option.

During the December briefing, the Minister indicated that the Electoral Amendment Bill proposes that the country have regions which will include multi-member constituencies, where independents and parties will stand for elections. The seats will be allocated in three tranches, where the first two tranches will be allocated to independents and the last tranche to political parties. This option also requires a consequential amendment to the Political Party Funding Bill to ensure that it is in line with the Bill.

He informed Members that the purpose of the meeting is to deal with the contentious issues in the Bill, such as the membership of independents, the court judgement and the allocation of votes in three tranches.

Electoral Amendment Bill [B1-2022]: briefing
Adv Steven Budlender SC, leader of the Bill's drafting team, indicated that one of the main purposes of the Bill is to provide for the nomination of independent candidates to contest in the and provincial legislatures; and provide the requirements and qualifications which must be met by persons who wish to be registered as independent candidates.

The Bill will require consequential amendments to be enacted to the Political Party Funding Act (PPFA) of 2018 which regulates the provision of public funding to political parties, as well as the restriction and disclosure of private donations made to political parties – as the Act does not currently cater for independent candidates.

The Chairperson confirmed that the Committee did receive a detailed brief from the Minister in December.

Minister Motsoaledi proposed that he brief the Committee on Mr Lekota’s Bill before Members posed questions.

The Chairperson said it would be preferable for the Minister to do so later in the meeting.

Discussion
The Chairperson asked for clarification on what would happen if a seat is left vacant by an independent candidate during the five-year term.

Mr I Groenewald (FF+), on behalf of the FF+, was pleased that the Bill complies with Section 46 of the Constitution, which determines that the election result must be proportional. He added that the FF+ does not object to the Bill which will allow for independent candidates to participate. However, he expressed his concern if constituencies will be able to hold independent candidates to account.

Ms A Molekwa (ANC) congratulated the Minister and his team on the progress made so far on the Bill. She asked for the Department to clarify if the Committee is allowed to recommend the minimalist option as its preferred option and what the consequences would be if it were to do so.

Mr A Roos (DA) said that one of the challenges is that Parliament only has until 10 June 2022 to finalise the Bill. He asked if the Parliamentary Legal Advisors have assessed the Bill against the Constitutional Court judgement and its requirements, to ensure the Bill is not legally challenged.

On the Bill’s implementation, he asked the Department to provide timeframes for the Bill’s implementation and the modifications to the PPFA. He mentioned that in previous amendments of electoral legislation, meaningful public participation has been an issue. He urged for the public to be included during the process, as the legislation is critical for both them and the nation at large.

He asked why the minimalist option was chosen, as it seems that the government wants to govern from a district level yet there is a reluctance to implement a constituency-level system (where representatives can be held accountable at a local level).

He asked why Clause 1 of the Bill refers to regions and not constituencies.

On Clause 9, he asked if there are provisions to correct mistakes made by the IEC on the final voters roll.

Mr M Lekota (COPE) asked what would occur if an independent vacates their seat in a particular constituency, due to resignation or death, and there are no provisions for a by-election. How would the needs of the people in that area be addressed during the intervening period?

He asked if the Bill contains an equality clause, as many votes for independents will be thrown away. Further, he asked how voters in a constituency will have a voice and that their needs are taken care of if their votes for an independent candidate are thrown away. If this were the case, he believes there is a risk that voters could approach the Constitutional Court stating that their rights have been violated. He added that the throwing away of votes will not meet constitutional muster.

Ms A Khanyile (DA) asked if a constituency would have to be without a representation if their representative resigns or passes away during the five-year term. She was concerned by this as this would affect service delivery and constituents will not be able to raise their issues.

The Bill states that if an individual wants to participate in an election as an independent candidate, they must not be associated with a political party for three months or more. She asked what would occur in the instance where a political party does not want to accept the resignation of a prospective candidate.

She asked what criteria the Independent Electoral Commission (IEC) uses to determine which independent candidates will be refunded and those who will not be.

Ms L van Der Merwe (IFP) asked how the Committee will be able to complete its task efficiently, as it has only four months left to finalise the process. The public comment period will close at the end of February, once this is complete, Parliament will have to embark on the public hearing process, which will require a significant amount of time. Subsequently the Committee will deliberate on the input provided by the public. She asked if the Committee will have to apply for an extension and what the implications of not meeting the deadline will be. Further, if an extension is granted, would that affect independent candidates' ability to stand in 2024?

She asked about the perceived fairness of the Bill as certain commentators have indicated that independents will not be able to compete fairly with political parties, mainly due to a disparity in funding. She urged that there should be equality between political parties and independent candidates during election campaigns.

On the term 'region', she asked how it is currently understood. Is it a territorial area of a province or interchangeable with it, and how it differs from a ward or constituency? Additionally, if a region does refer to a province, she asked if all provinces (or regions) have an equal number of seats.

During the meeting in December, the Minister indicated that the discarding of votes is an international practice. She, however, disagreed with this, as every vote in the proportional representation (PR) system counts. Additionally, the discarding of votes might influence the fairness of the election and it would not be a representation of the people’s will. She asked if there is an alternative mechanism such as where votes are transferred from one candidate to another.

She insisted that it cannot be that a seat must remain vacant if an independent passes away or resigns.

Mr K Pillay (ANC) commended the work done by the Department thus far. He proposed that the stakeholders open the process for public consultation. He explained that votes cannot be transferred from one individual to another, as the will of the people was expressed in the vote for that particular candidate. He proposed that the Committee move beyond this matter and decide what process it will embark on in the next four months.

Ms M Modise (ANC) appreciated the work done by the Minister and his team on the Bill. She expressed her concern about the four-month timeframe to complete the process, as the Committee still needs to open the process for public consultation; to receive counsel from the from the parliamentary legal advisors on the legislative process and to afford the IEC to do its work after the passing of the Bill. She suggested that the Committee deliberate on the way forward, which may include approaching the Constitutional Court for an extension.

The Chairperson asked how the Bill would address how independents will be nominated to the NCOP, as candidates are nominated by the provinces.

IEC Vice Chairperson, Ms Love, replied about the threshold for refunds, saying that the legislation provides that the IEC set a threshold but how this applies to independents will be clarified once the Bill is passed, as no criteria have been set.  

Adv Budlender responded that the term 'region' in this context refers to a province. There will be nine regions, which is how the current Electoral Act works. The term was used to avoid confusion between regions or provinces electing candidates to the National Assembly on the one hand and elections to provincial legislatures.

On the allocation of seats, this is determined by Item 4 of Schedule 1a of the Bill, which states that the IEC must determine a fixed number of seats reserved for each region in each National Assembly, taking into account available scientifically-based data on voters and interested parties.

On the vacancy of a constituency seat, this is a practical difficulty with no real solution, as an election re-run would have to be held provincially. Constituencies are a practical arrangement organised by the National Assembly and are not a legal requirement, which means that if an independent vacates his/her seat, Parliament can deal with this by allocating two constituencies to one MP or by allocating half of the vacant constituency to a neighbouring MP and the other half to another.

On discarding votes, this also occurs in South Africa’s current electoral system. In ward elections, votes are discarded in the same manner as the first-past-the-post (FPTP). Even in the current National Assembly system this is the case. For example, if the African National Congress were to obtain 100 000 votes, the first 40 000 votes will provide them with one seat (which is the number required to obtain a seat in the National Assembly), and the second 40 000 will give them a second seat, whilst the other 20 000 is discarded.

Adv Budlender agreed with Mr Pillay that if an individual makes the decision to run as an independent, they must be held to that. Voters in the constituency are aware that their vote for the independent candidate is towards obtaining one seat, thus their will would have been respected. He did not foresee a constitutional difficulty with this.

Adv Budlender agreed that there must be a requirement for a constituency system which includes PR and in his view this Bill contains that.

He confirmed that the Bill has been assessed by parliamentary legal advisors for constitutional compliance and the Minister’s team has had engagements with them.

Touching on the mistakes found on the voters roll, that is not an issue addressed by the Bill because it does not arise on the question of independent candidates.

Adv Budlender stated that he was unaware of how a political party would be able to restrict a member from resigning because the right to freedom of association also includes the right to dissociation.

On the election of independents to the NCOP, Adv Budlender explained that there is no requirement for independents to be catered for in the NCOP. The Constitutional Court judgment speaks specifically of independents taking up seats in the National Assembly and the provincial legislatures and it makes no reference to NCOP. Candidates for provincial legislatures are selected on a party basis and this is instructed by the Constitution.

Home Affairs Deputy Minister, Mr Njabulo Nzuza, expressed hope that the Committee will work with the Department to meet their collective objectives. He added that good progress has been made on this Bill. On the extension of timelines, he said that the Department has agreed that it will only apply for an extension once it has done all that it can.

On the transferral of votes, he indicated that the Bill does not permit for the transferral of votes from one candidate to another, as the Department did not want independents masquerading as political parties. He further explained that in LGEs, when PR votes are tallied, the votes of independents gathered from ward votes are subtracted.

The Deputy Minister said that he does not recall when the Department skipped the necessary steps in processing Bills for Parliament. Rather, it has always made sure that it includes the public, that it consults the State Law Advisers and obtains a certificate to ensure that the Bills are clear and consistent with the Constitution. It will continue to do so.

He suggested that the Committee inform Parliament that the Bill will make modifications to its proceedings, so that Parliament is ready once the law is passed.

Minister Motsoaledi indicated that much work has to be done to ensure that the Bill is understood by members of the public.

Explaining why the minimalist option was chosen, the Minister said that this option would allow Parliament to meet the 2024 deadline, whereas option two would require extensive changes to the electoral system.

On the Bill meeting constitutional scrutiny from Parliament, he mentioned that the Department does not refer Bills to Parliament for constitutional scrutiny, instead, it refers to the Office of the Chief State Law Adviser (OCSLA). Any Bill that is tabled in Parliament must be accompanied by a certificate from OCSLA, which shows that the Bill meets constitutional muster. He admitted that the Department did not have this certificate during the meeting on 7 December 2021 but now it does.

Explaining why the minimalist option was chosen, he indicated that the MAC adopted ten principles, which are similar to those adopted by the van-Zyl Slabbert Commission. He listed some of these principles: inclusiveness, fairness, gender equality, proportionality in provincial legislatures and the National Assembly, effective participation of independents, effectiveness and legitimacy.

Referring to gender equality, the Minister said that in ward elections parties are unable to balance gender equality and as a result, many female candidates are chosen through the PR system.

The Minister took issue with the idea of transferring votes from one candidate to another as he felt that it does not provide voters with genuine choice.

On the vacancy of a constituency seat, the Minister did not believe that this would be an issue as the electoral system would be a multi-member constituency, where citizens are represented by both political parties and individuals, unlike the ward system. Where there is a vacancy, the relevant constituency will continue to have a representative, however, it will not be the individual they voted for. He requested that Parliament agree on a solution to this.

On the four-month timeframe, he suggested that Parliament should assess what action should be taken going forward.

The Minister said he was unsure why the Committee had taken issue with the discarding of votes as it has been done in the LGE since 2000. Therefore, why would it not be considered to be legal to discard votes of independent candidates in provincial and national elections when it is in ward elections?

Mr Roos noted that his earlier question referred to whether the Bill has been assessed against the Constitutional Court judgment and if it satisfies its requirements.

Adv Budlender clarified that the MAC held discussions with OCSLA and not the parliamentary legal advisors as previously mentioned. Both the constitutionality of the Bill and if it satisfies the requirements of the Constitutional Court judgment were referred to during the discussions.

Mr Siviwe Njikela, Senior Parliamentary Legal Advisor, replied that he could not make a definite determination of the constitutionality of the Bill before the public participation process. However, the parliamentary legal advisors have concluded that there is nothing manifestly unconstitutional in the Bill as it stands. He added that criticism from the public should be considered by the Committee and if there are issues raised on its unconstitutionality, it will have to be dealt with there.

On a possible extension, Mr Njikela said that it is for the Committee to make an assessment and determine if it will have the time to engage in a meaningful public participation process and if four months is enough time to pass the Bill successfully. On behalf of the parliamentary legal advisors, he indicated that if the Committee wants to apply for an extension, it should be done now as it will also demonstrate the bona fides of the application. In previous judgments, the Constitutional Court informed Parliament that any extension must be motivated for and substantiated.

The Chairperson thanked the Minister and the MAC for their work on the Bill, in ensuring that Parliament meets the deadline set by the judgment. Two factors contributed to the delay in passing the Bill, which were the Covid-19 pandemic and the recent LGE. He suggested that the Committee make an assessment on whether it should give notice to request an extension, as a measure to ensure that Parliament complies with the Constitutional Court judgment.

The finality of the Bill must and will be guided by public participation, as citizens must be able to criticise it. After the meeting, the Committee will interact with the parliamentary legal advisors, it will then have deliberations and will subsequently request that the parliamentary legal advisors develop a programme of action (POA) for the establishment of public consultations.

Lekota Bill Compared to the Department Bill
Minister Motsoaledi stated that the fundamental difference between the two Bills is that the Lekota Bill proposes a change to a constituency system and a change from closed-list proportional representation to open list. So this proposal fundamentally looks at general electoral reform.

One of the main criticisms cited is that the proposed amendment would take a longer period of time to enact than the Department Bill, which has been proposed to meet the Constitutional Court judgment. Another criticism cited is that the Bill would permit independent candidates to transfer surplus or unusable votes to an independent or party candidate.

Mr Lekota reserved his judgment on the criticisms of the Bill.

The Chairperson mentioned that the Committee will interact further with the Department’s response to Mr Lekota’s Bill.

The meeting was adjourned.