In this virtual meeting, the Committee was briefed by the Ministry and officials from the Department of Home Affairs (DHA) on their response to public submissions received on the Electoral Amendment Bill.
The Minister emphasised that Parliament had the right to decide on the electoral system. The matter under discussion was how to accommodate Independent Candidates. The Department had been criticised for the length of time it took to develop a policy after the Constitutional Court judgment. The time was used to study electoral systems across the world. Each system had its own vices but countries were able to choose a system that fit the needs of their people. The country had difficult choices to make.
One of the proposals was that independent candidate vacancies could be filled through by-elections or filled by the most popular runner-up in the elections that didn't win a seat". The Department disagreed stating: “it would be utterly impractical and an unjustified financial strain on the fiscus, but also on the ability of the state to govern, to similarly provide for a replacement of the independent candidate through a by-election. This is because independent candidates are voted for at a provincial or regional level. As a result, the by-election would have to be organised at a provincial or regional level every single time there is a vacancy in the National Assembly”.
The processes and requirements to accommodate the participation of Independent Candidates in the electoral system, in response to the Constitutional Court judgment, formed the basis of the discussions. The Committee remained committed to consider all submissions received from the public and civil society organisations when it deliberates on the determination of the Bill.
The committee noted that Parliament has submitted papers to the Constitutional Court to request an extension of the deadline to remedy the defect in the Electoral Act 73 of 1998, as it had recommended. The committee also scheduled a programme that tentatively envisages the completion of its processes by 24 May 2022.
Prior to meeting with the DHA Ministry and officials, Mr Phakamile Hlungwani, the Committee Researcher, briefed Members on the key issues emanating from the report on provincial oral submissions.
The Chairperson enquired about the report on written submissions.
The Committee Secretary said he was accounting only for the oral submissions. The report on written submissions was received late which did not give him sufficient time to review it.
Mr K Pillay (ANC) noted the report. He said Ms Legwase would be joining the meeting later.
Mr A Roos (DA) asked how the written submissions would be included in the report.
Ms A Molekwa (ANC) appreciated the briefing on the provincial oral submissions.
Ms L van der Merwe (IFP) appreciated the briefing and said the report accurately reflected the hearings.
Responding to Mr Roos, the Chairperson said the Committee was going to deal with the outstanding reports which would be consolidated prior to deliberations.
The briefing was adjourned.
Chairperson opening remarks
The Chairperson welcomed all stakeholders to the meeting and extended his appreciation for the work of the Independent Electoral Commission (IEC). The purpose of the meeting was to receive the report of the DHA Ministry and legal team on public hearings with the intention to respond to the Constitutional Court judgment. The Electoral Amendment Bill was tabled in Parliament on 10 January 2022. The Committee invited stakeholders to submit written submissions. To facilitate the provincial hearings, the Committee was divided into two groups, i.e. an inland and a coastal group.
The Chairperson thanked the full complement of staff at parliament and all Members who participated in the public hearings. He expressed appreciation for all stakeholders, citizens, and civil society organisations who responded to the call to interact with Parliament. All submissions would be sent to the DHA and legal teams for comment. Further processes would be outlined. The Committee would be able to interact with the large number of submissions received once the deliberation process starts.
The flawed narrative that the Committee was excluding members of the community, emerged at the first public hearing in Thohoyandou. The intention was to derail the process. The Committee would be deliberating on all issues. The IEC would be invited to do a presentation on technical matters. The request for an extension of the deadline had been filed at the Constitutional Court. Parliament Legal Services was requested to advise on the matter.
The Chairperson invited the Minister of Home Affairs, Dr Aaron Motsoaledi and the Deputy Minister, Mr Njabulo Nzuza, to present opening comments.
The Minister outlined the approach followed by the DHA after the public hearings. Stakeholder and public comments and questions received from the Committee were referred to the legal team who used the information to draft the Bill. He proposed that the DG present the issues on a clause-by-clause basis. The Minister and Deputy Minister would comment if issues of clarity were required.
The Chairperson confirmed that the Minister and Deputy Minister would be invited to comment after the presentation by the DG. Members would then be granted the opportunity to raise questions.
The Minister sought clarity on the process outlined by the Chairperson as it appeared to differ from his proposal.
The Chairperson said he was confirming the proposal made by the Minister, so no clarification was needed.
Department of Home Affairs responses to Electoral Amendment Bill submissions
Mr Tommy Makhode, Director-General (DG), DHA, presented the responses of the Department. The following key issues were emphasised:
Clause 1: The definition of a region in clause 1(e) was found to be confusing in the context of elections. The Department is of the view that ‘region’ was properly defined. ‘Region’ instead of ‘province’ was selected to avoid confusion between elections for the National Assembly and Provincial Legislatures.
section 31B deals with the accountability of Independent Candidates. The Department disagreed with the proposal to include a clause about the role of NPOs to hold Independent Candidates accountable. It was the function of constituencies to hold Independent Candidates accountable. The Department noted the concern about gender representation. The principle of compensatory seats cater for gender representation.
section 31B4(3)(a) proposes a prescribed number of signatures as proof of political support. The decision to determine a reasonable number of signatures had been delegated to the IEC.
section 31B4(3)(f) deals with the cooling-off period between resigning from a political party and registering as an Independent Candidate. The Department noted the comment about the increase in the cooling-off period from three to six months.
section 31E refers to qualifications of Independent Candidates. The Department clarified that the meaning of ‘qualifications’ in this context referred to qualifying criteria rather than academic qualification.
section 31F(1)(b) proposes an increase in the threshold of participation to avoid a potentially longer ballot paper. The Department is of the view that criteria developed may assist in curbing the number of qualifying candidates.
Clause 6: provides for the sanctioning of Independent Candidates who contravene the code of conduct. The Department noted the comment for harsher sanctions including disqualifications for any violation of the code of conduct.
Clause 8: deals with the payment of non-refundable deposit fees payable by Independent Candidates. The matter had been referred to the IEC to develop regulations relating to the required fee. There will be further amendments to the Political Party Funding Act to include Independent Candidates.
Clause 11: provides for the allocation of seats in the National Assembly and Provincial Legislatures between Independent Candidates and candidates representing political parties. Some communities argued that the proposed seat allocation system is biased towards political parties. The Department is of the view that the system will be fair and there can be no complaint of unfairness by the Independent Candidate or the voter.
The Chairperson was experiencing challenges with network connectivity. Consequently, Mr Pillay requested the Minister and Deputy Minister to indicate whether they had any further contributions to make.
The Deputy Minister remarked that the presentation accurately presented what needed to be communicated.
The Chairperson re-joined the meeting and apologised for his brief absence. He invited Members to comment or raise questions in relation to the presentation.
Ms van der Merwe said the position of the Department was clearly stated. All the issues raised during the public hearings had merit. The Committee needed to decide how to deal with the issues during further processes that would be undertaken.
Mr M Tshwaku (EFF) attempted to raise questions but was inaudible due to network problems.
Ms Molekwa appreciated the effort of the Department in compiling the comprehensive report on the Electoral Amendment Bill.
Mr Roos expressed his concern about seat allocation and how it related to the proportionality system. He sought clarity on why the existing system was not being considered. It would be a big issue for Independent Candidates to get 80 000 votes to be awarded a single seat while political parties needed only 40 000 votes. He sketched an extreme scenario of Independent Candidates obtaining 90% of the vote but being awarded only half of the seats while political parties each get only 1% of the vote. He questioned the likelihood of forming a coalition government based on the extreme scenario. He proposed that the existing seat allocation system should be considered.
Ms T Legwase (ANC) noted the report and proposed that it should be submitted to the legal team for consideration.
Ms A Khanyile (DA) noted the presentation and commended the Department for drafting the report.
Mr Tshwaku said the official position of the EFF was that Independent Candidates must submit not less than 20 000 verifiable signatures. The deposit should be the same as for political parties and should not be refundable to prevent a long ballot list. The EFF strongly discouraged by-elections to replace Independent Candidates to avoid the country being in permanent election mode and creating opportunities for people to be targeted. This was the official position of the EFF which participated in all the debates across the country.
Mr Pillay noted the report and applauded the responses and comments received. He proposed the word ‘collective’ be added to clause 11 in relation to individuals voting for a candidate. One of the submissions proposed that surplus votes should be moved to the next Independent Candidate. The argument is that voters vote for an individual and not for a collective or a political party. In terms of the filling of vacancies, he submitted the words ‘ballot booklet’ be added. It emerged from many of the hearings that ballots were too long. To ensure that the process was not long, some qualifying criteria were needed, i.e. the ballot must not become a ballot book and the election process should not be extended. Currently, the vote takes place on a single day with special votes two days before voting day. A ballet booklet would mean elections taking place over a week or longer and the country does not have resources. He proposed the Committee proceed with the programme of action, charting the way forward for the rest of the processes.
The Chairperson invited the Minister to comment on the feedback from Members.
The Minister drew attention to the Van Zyl Slabbert report in which no mention was made of Independent Candidates. The main issue in the report centred around constituencies. He remarked that the Lekota Bill had been withdrawn after some of the proposals were found to be impractical. Paragraph 15 of the Constitutional Court judgment stated that the type of electoral system the country would adopt was a matter for Parliament to decide. Parliament had the right to decide on the electoral system. The matter under discussion was how to accommodate Independent Candidates. The Department had been criticised for the length of time it took to develop a policy after the Constitutional Court judgment. He explained the time was used to study electoral systems across the world. Each system had its own vices but countries were able to choose a system that fit the needs of their people. The country had difficult choices to make.
In his response to Mr Roos, the Minister said the existing system did not provide for Independent Candidates. It was agreed that Independent Candidates would be given the best chance to be allocated seats. The Minister congratulated Mr Tshwaku on obtaining his Information Technology qualification. He jokingly added that it was ironic that Mr Tshwaku always seemed to struggle with connectivity problems. He proposed that Mr Tshwaku find better locations so that the Committee did not miss out on his contributions. He reminded Members about the steps that had been taken to arrive at this point including the establishment of the ministerial task team. The consolidated report which included submissions from all political parties and other stakeholders revealed no emerging pattern. It reminded him of the consensus that was reached during the time of the CODESA negotiations.
The Chairperson explained the purpose of this meeting was to get a response from the Minister and the DHA legal team on what emerged from the submissions. The comments of Members did not constitute a resolve at this stage. The DHA might be called back to deal with further issues as they arise. He stated the Lekota Bill had not been withdrawn by Mr Lekota. The Committee decided not to proceed with the Lekota Bill but to focus on the Electoral Amendment Bill. Issues raised by the Minister would form part of future deliberations.
The Chairperson requested the Committee Secretary to highlight the revised second term programme of the Committee.
The Committee Secretary asked if he could read from the programme without sharing it as he was having difficulties.
The Chairperson replied that it was important to show the programme so that the public and all stakeholders could understand how the Committee was planning to interact with the process during the second term.
After managing to share the programme, the Committee Secretary proceeded with highlighting the activities scheduled for the second term:
Tuesday, 3 May 2022: Briefing on the Annual Performance Plan and 2022/23 Budget of the DHA
Friday, 6 May 2022: Comment by Parliament Legal Services on constitutional or legal matters in the public participation report.
Tuesday, 10 May 2022: Briefing by Content Advisor on the consolidated public participation report. Consideration and adoption of Motion of Desirability. Commencement of deliberations on the Electoral Amendment Bill.
Friday, 13 May 2022: Further deliberations on the Electoral Amendment Bill.
Thursday, 18 May 2022: Consideration and adoption of the A-list and the amended B Bill.
Tuesday, 24 May 2022: Finalisation of the Bill.
The Committee Secretary drew attention to the MANCO decision to reschedule the IEC briefing on the Bill which should take place before the Committee starts with the deliberations.
The Chairperson said he needed to outline the process and to emphasise that the Committee had not started deliberations on the Electoral Amendment Bill. At this stage, the Committee was receiving all responses and comments made on the Bill. The programme might change because of the three IEC-related issues which required further consultation and which might impact the programme. Firstly, the report on the local government elections that the Committee still needed to factor in. Secondly, the term of Commissioner Mashinini has ended. A report on the process of interviews had since been submitted to the Speaker and referred to the Committee for consideration to deliberate on the candidates and to resolve the appointment of the new Commissioner. Thirdly, the IEC comments on the Electoral Amendment Bill must be factored in. The programme of action might be re-worked to prioritise the activities on the Electoral Amendment Bill so that all items could be worked on. The IEC comments would be added to the responses before the start of the deliberations to allow Members to have a complete understanding of all the issues. He thanked all stakeholders for making time to attend the meeting.
The meeting was adjourned.
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