Electoral Amendment Bill: Parliament Legal Services on constitutional issues & public participation report; DHA Budget: Committee Report
06 May 2022
Chairperson: Mr M Chabane (ANC)
The Committee convened on a virtual platform to receive a legal opinion from the Parliamentary Legal Services on the legal and constitutional issues raised during the public consultation processes around amending the Electoral Act 73 of 1998.
This meeting formed part of the broader process to amend the Electoral Act and the commitment to ensure an inclusive and thorough process that captures the views and aspirations of South Africans and ensures a law that passes constitutional muster.
Parliamentary Legal Services, on the legal and constitutional issues raised during the public consultation processes around the electoral amendments, noted that the Constitutional Court said that a citizen’s political constitutional rights may be exercised through political parties (for those who choose to associate) or independent candidates (for those who choose not to associate), and that voters should not be compelled by law to associate, as the right to freedom of association includes the negative right not to associate.
It was reported that there are practical differences in how independent candidates and political parties may be accommodated in the country’s electoral system, and these differences are the major points of contention in most submissions received.
The Parliamentary Legal Services outlined the submissions to the Committee and indicated its responses to the legal questions raised by the submissions, which centred on these issues:
• Voluntary associations and independent candidates
• Extra requirements for independent candidates
• Wasted votes
• The recall of members and representatives
• The equitable representation in the allocation of seats to the Provincial Legislature
• The accommodation of independent candidates in the NCOP
• Assessing potential candidates for previous sexual convictions
Members considered their Draft Report on Budget Vote 5 of the DHA, which included all the interactions the Committee has had with the DHA, the Independent Electoral Commission (IEC), and the Government Printing Works on their Annual Performance Plans and Budgets for 2022/23.
The Draft Report on Budget Vote 5 of the DHA outlined the Committee’s observations and recommendations to guide the DHA and its entities on how it can improve its financial and non-financial performance.
The Draft Report on Budget Vote 5 of the DHA will be considered by the Committee in the following week after Members have made input and the changes have been made to the Draft Report and a further briefing by the IEC has been received regarding the Local Government Election Report.
The Committee said it had undertaken a deliberate and inclusive process, as it considers the Electoral Amendment Bill B1-2022 an important development in South Africa’s maturing democratic dispensation. Nonetheless, the Committee was disappointed with a narrative heard from certain sections of society that seeks to undermine the process and deflect the Committee from undertaking this important task.
The Committee reiterated its commitment to ensuring that extensive consultations take place to ensure that the Electoral Amendment Bill is strong and addresses the questions raised by the Constitutional Court.
To this end, the Committee undertook an extensive public participation process that included written submissions, oral submissions conducted on 1 and 2 March 2022, and the extensive provincial hearings.
The Committee has decided on the Electoral Amendment Bill and is currently engaged with collating and considering all the submissions to ensure that all decisions are fully informed.
The Committee reiterated there was no tardiness on its part or on the part of Parliament in amending the Electoral Act.
The Committee took exception to any suggestion that seeks to denigrate its work up to this point. Both Houses of Parliament are seized with the responsibility of the amendment of the Electoral Act, and public consultations to further strengthen the Electoral Amendment Bill will be undertaken when the NCOP considers the Electoral Amendment Bill.
The Committee will continue earnestly to process the Electoral Amendment Bill as it awaits further direction from the Constitutional Court on the application lodged for an extension.
The Committee will engage with the DHA and the IEC in the next week to seek further responses on the issues raised by the legal opinion of the Parliamentary Legal Services.
The Committee remained determined to submit a worthy and strong Electoral Amendment Bill for the National Assembly to consider.
The Chairperson convened the virtual meeting and welcomed Members and the delegations in attendance. The purpose of the meeting was for the Committee to receive a legal opinion from the Parliamentary Legal Services on the legal and constitutional issues raised during the public consultation processes around amending the Electoral Act 73 of 1998.
The second item on the agenda was for the Content Advisor to brief the Committee on its Draft Report on Budget Vote 5 of the Department of Home Affairs (DHA).
The last item was for the Committee to engage with its programme for the second term of Parliament.
The delegation from the DHA consisted of Mr Tommy Makhode (Director-General), Mr Modupi Ka Mdluli (Chief of Staff), and Ms Madiete Makua (Parliamentary Officer).
The delegation from the Independent Electoral Commission (IEC) comprised Ms Janet Love (Vice-Chairperson), Mr Sy Mamabolo (Chief Electoral Officer), Mr Philippe Metzger (Chief Executive Officer), Mr Libisi Maphanga (Chief Information Officer), Ms Akhtari Henning (Deputy Chief Executive Officer: Corporate Services), Mr Mosotho Moepya (Commissioner), Dr Nomsa Masuku (Commissioner), and Mr Mawethu Mosery (Electoral Manager).
The delegation from the Parliamentary Legal Services comprised Ms Daksha Kassan (Parliamentary Legal Advisor), Ms Telana Halley (Parliamentary Legal Advisor), and Mr Siviwe Njikela (Senior Parliamentary Legal Advisor).
Opening remarks by the Chairperson
The Chairperson noted that the Committee dealt with the Electoral Amendment Bill and held public hearings on the legislation. In the previous meeting, He stated that the DHA reflected and commentated on the report that the Parliamentary Legal Services has consolidated and submitted to the DHA for their attention. The DHA presented its views on the issues raised by the community members and the public. He stated that the Executive Bill that was submitted on 10 January 2022 was tabled in Parliament and then referred to the Committee for engagement. The Committee then invited the DHA to brief the Committee on the issues emerging from the Electoral Amendment Bill. The Committee then resolved to start a process involving stakeholders, political parties, and community members to interface and contribute to the Committee.
The Committee invited written submissions and received some responses from community members, stakeholders, and political parties, and the deadline for written submissions was on 14 April 2022. The Committee can confirm that all stakeholders had been afforded the opportunity to interact with the Committee and for the Committee to interact with the stakeholders in return.
The Committee appreciated the contributions made by the public and stakeholders on the electoral amendments. The Committee also consulted with members of the public during the provincial public hearings that were held in which the Committee was divided into two groups.
The Committee could confirm that members of the community responded and contributed to the views and content of the Electoral Amendment Bill.
The Committee appreciated the process taken by the Public Education Unit of Parliament to further consult with the public and empower the people of South Africa in line with what the Electoral Amendment Bill intends to achieve.
The Committee also interacted with the Private Member’s Bill, introduced by the veteran Mr M Lekota (COPE). The Committee resolved not to proceed with the Private Member’s Bill and focus on the Executive Bill. However, the Committee remains mindful of the concerns that emerged from the Private Member’s Bill and appreciates the work done by Mr Lekota in this regard. He appreciated the work done by the DHA, the IEC, the Committee, and all of the stakeholders.
The Committee had previously resolved that Parliament would apply to the Constitutional Court for an extension on an order to remedy the unconstitutionality of the Electoral Act. The primary reason for the resolution was the need for the Committee to undertake an extensive and meaningful public participation process, which has now been concluded.
The Committee would now be engaging with the report after its consolidation.
The Committee considered all processes in terms of their role in interacting with the public and conducting public participation hearings. After the engagements have been finalised, the matter will be referred to the National Council of Provinces (NCOP) for further deliberations and consultations. This is necessary to deal with the Electoral Amendment Bill sufficiently.
He stated that the Committee was aware that a narrative had been generated to attack the Committee to delegitimise the Committee's process. The Committee was observing this matter in the public space. However, at this point, the Committee affirms the process that it has been engaged in.
The IEC has found its foot on this attack, and it has been noted by another stakeholder that the IEC was “corrupt to the core”. Since the IEC is one of the institutions that the Committee presides over, such allegations have to be put before the Committee so that Members can engage with the IEC and those parties that have made the allegations to deal with the matter properly.
The Committee has been confident in the IEC's work since the start of the country’s democracy.
The Committee works closely with the IEC to ensure that any concerns and weaknesses are addressed to improve the work of the IEC. The Committee is confident in the elections that have been conducted in the past.
The IEC regularly accounts for its work before the Committee, and Members advise the IEC on how to improve. The work of the IEC was raised in this narrative, seeming to delegitimise the work of the Committee.
The Committee has accepted constructive criticism over time on any matter.
He acknowledged the attendance of the delegations, especially the IEC. The Committee would invite the IEC to comment on the Electoral Amendment Bill, the reports presented by the DHA, and the report that the Parliamentary Legal Services will present.
Briefing by the Parliamentary Legal Services
The first item on the agenda was for the Committee to receive a legal opinion from the Parliamentary Legal Services on the legal and constitutional issues raised during the public consultation processes around amending the Electoral Act, as required by the Constitutional Court. Mr Siviwe Njikela (Senior Parliamentary Legal Advisor) presented the briefing to the Committee.
Summary of the briefing
It was reported that the Parliamentary Legal Services would only address the legal and constitutional issues and that policy issues had been left to the Executive to address.
As background, it was noted at the Constitutional Court that a citizen’s political constitutional rights may be exercised through political parties (for those who choose to associate) or independent candidates (for those who choose not to associate), and that voters should not be compelled by law to associate, as the right to freedom of association includes the negative right not to associate. It was reported that there are practical differences in how independent candidates and political parties are accommodated in an electoral system, and these differences are the major points of contention in most submissions received.
Parliamentary Legal Services outlined the submissions to the Committee and indicated its responses to the legal questions raised by the submissions. The legal questions centred around these issues: Voluntary associations and independent candidates, extra requirements for independent candidates, wasted votes, vacancies, the recall of members and representatives, the equitable representation in the allocation of seats to the Provincial Legislature, the accommodation of independent candidates in the NCOP, and the assessment of potential candidates for previous sexual convictions.
The Parliamentary Legal Services also advised the Committee of other sections of the Electoral Act that might require amendment to accommodate independent candidates fully. They highlighted other statutes that would need to be amended before the next election to fully effect the amendments made to the current reform of electoral law.
On the way forward, it was reiterated that the Constitution gives the power to determine an electoral system to Parliament. Parliament has a constitutional obligation to engage in meaningful public participation. The minimum standards that must be fulfilled in public participation have been set by case law. Parliament must thus demonstrate that it considered all submissions to justify that its choices are rational.
The Parliamentary Legal Services advised that the Committee requires further input from the DHA on these matters:
• Whether the DHA aligns with the Parliamentary Legal Services’ argument regarding voluntary associations and independent candidates contesting compensatory seats.
• A justification or explanation for the rationality behind the requirement that an independent candidate must be a resident of the constituency they are contesting.
• The DHA should provide alternatives and a solution to the vacancy predicament.
• The DHA should explain why the provisions relating to party liaison committees and agents were not amended to be made applicable to independent candidates.
The Chairperson thanked the delegation from the Parliamentary Legal Services for the legal opinion and information presented to the Committee regarding the responses to the submissions received during the public hearings.
The Committee was aware that some of the responses were directed at the DHA for further consultation. He invited Members to ask questions and make contributions.
Ms L van der Merwe (IFP) thanked the Chairperson for his introductory remarks.
She concurred that the current animosity that the Committee is facing regarding the Electoral Amendment Bill was unfortunate, and no Members have embarked on this process to keep the status quo or to shield their political parties. She welcomed the Chairperson’s comments in this regard.
She stated that there was a trust deficit between the public and the public’s representatives. That was the issue that the electoral law reform is trying to remedy by allowing independent candidates to contest elections.
She thanked the Parliamentary Legal Services for the briefing made to the Committee and stated that the information had given the Committee a lot of food for thought.
She emphasised that the Committee has continuously raised the issue of wasted votes, but the will of the people is paramount for a democratic election.
On the party liaison committees, she stated that these committees were exceptionally important bodies. It would mean that there has to be a provision for independent candidates to be represented there.
There was also the question of independent candidates having to reside in the constituency they were contesting and the issue around airtime for candidates. The Committee will consider these issues since political parties are given free airtime during elections, and this concession will then have to be extended to independent candidates.
The Committee needs clarity on these issues.
On the issue of vacancies, she stated that the matter would become a complex issue as the legal team is saying that it is unjustifiable to keep the vacancy so that if somebody is elected as an independent candidate, they will either resign or pass on and that vacancy will have to be filled. She asked the Parliamentary Legal Services if there was any remedy for this situation and whether by-elections would be held.
Mr M Hendricks (Al Jama-ah) referred to the issue of wasted votes. He stated that political parties also had wasted votes when the rounding off was done, which levels the playing field. Would the same process apply to independent candidates? He offered a possible solution by stating that, in American elections, the President has a running mate who takes up the position if the independent candidate is no longer there. Many voters will consider who the running mate is when casting their vote.
He thanked the Parliamentary Legal Services for the briefing made and the tremendous progress made in this regard.
Mr A Roos (DA) thanked the Parliamentary Legal Services for the valuable briefing made to the Committee.
On the additional requirements for independents, he noted that one of the inputs from the public was about the question as to why political parties can contest all the seats while independent candidates can only contest up to 200 seats. He asked for clarity on the Parliamentary Legal Services’ response to that issue, as it is a potential cause for legal action.
On wasted votes and proportionality, he stated that these issues are linked where the main argument centres on unfair discrimination, which should be addressed.
On the issue of vacancies, he stated the current seat allocation system was not considered since it calculates general proportionality in the first round based on the overall votes, and the quota is applied in the second round. This currently solves the problem of filling the vacancies, and more clarity is required on the different thresholds.
Mr K Pillay (ANC) thanked the Parliamentary Legal Services for the presentation.
He stated that it was important that the Committee reaffirm the credibility of the IEC where there have been allegations of maladministration or corruption. Anyone who makes such allegations should follow due process and lodge complaints with the relevant law enforcement agencies or even bring the matter to the Committee, but it was not reasonable or justifiable to make unfounded statements.
He asked for clarity on how the issue of filling vacancies would be solved, and how by-elections would be determined if contesting is not done based on constituencies. In the event of a vacancy arising, you cannot go back and have a constituency election if you are not using a constituency-based election system in the first place. It is important to unpack all of the possible outcomes regarding independent candidates.
During the allocation of seats, political parties and independent candidates will be affected by the so-called wasted or discarded votes. He asked for clarity on whether the deposits were equivalent to the contested seats for both political parties and independent candidates.
Responses by the Parliamentary Legal Services
Mr Njikela, Senior Parliamentary Legal Advisor, stated that the Parliamentary Legal Services intended only to cover the legal and constitutional issues. Policy issues have been left to the Executive to address.
Most of the Members’ questions focused on policy issues. He stated that the Parliamentary Legal Services is not capacitated to speak on policy issues. There is a need to invite the DHA back to speak on some issues and concerns of the Committee.
On the question of whether there are any alternatives for filling vacancies, he stated that the submissions received links to that question. Specific proposals made in this regard included a proposal similar to a running-mate for a mixed-member constituency.
On the recalculation of votes, he stated that the number of votes is recalculated when the seat becomes vacant and the second highest candidate takes over the seat. Some solutions have been put forward in the public sector that the Committee may consider, and this is a matter that the DHA and the IEC will be able to provide the Committee with more information.
On the issue of 200 seats, he stated that any independent candidate could only occupy one seat at any given stage unless they form voluntary associations, which become no different from having a form of association or political party.
The NCOP will get its delegations from the provinces, but this is where the debate around proportional representation comes in.
On by-elections, he stated that in local government, there is the requirement that a by-election must be held within a prescribed period if there is a vacancy. If this principle of by-elections were to be adopted at a national level, then the planning for these outcomes will need to be clarified so that there is not a perpetual mode of elections trying to fill those vacancies. This is why the Parliamentary Legal Services has suggested that consideration be given to the alternatives put forward in the public’s submissions.
He stated that there would be no differentiation between what the political parties experience and what the independent candidates would experience on wasted votes. He stated that there is nothing unconstitutional or unlawful about a requirement for a deposit, but consideration should be given to how to differentiate between a political party and an individual to make the process and the electoral fair for everyone involved. This is an example of the practical differences between political parties and independent candidates that the Committee must grapple with.
Committee Draft Report on Budget Vote 5 of the DHA
The second item on the agenda was for the Content Advisor to brief the Committee on its Draft Report on Budget Vote 5 of the DHA.
Mr Adam Salmon, Content Advisor to the Committee, presented the Draft Report on Budget Vote 5 of the DHA.
Summary of the briefing:
Members were briefed on the content of the Committee’s Draft Report on Budget Vote 5 of the DHA, which included all the interactions the Committee has had with the DHA, the IEC, and the Government Printing Works (GPW) on their Annual Performance Plans (APPs) and Budgets for 2022/23.
In addition, the Content Advisor and Parliamentary Research Unit condensed the analysis thereof into a report. The Draft Report on Budget Vote 5 of the DHA outlines the Committee’s observations and recommendations to guide the DHA and its entities on how it can improve its financial and non-financial performance.
The Content Advisor took Members through the content of the Committee’s Draft Report on Budget Vote 5 of the DHA. The Committee will consider the Draft Report on Budget Vote 5 of the DHA in the next week after Members have made input and the changes have been made to the Draft Report and a further briefing by the IEC has been received.
The Chairperson thanked the Content Advisor for leading Members through the content of the Committee’s Draft Report on Budget Vote 5 of the DHA.
Some issues in the Draft Report must be elevated and emphasised, such as the IEC’s budget cuts and the implications of the discussions on the Electoral Amendment Bill and its policy options.
The Committee’s Draft Report on Budget Vote 5 of the DHA would also have to elevate some of the issues to be presented by the IEC in the next week when the Local Government Election Report is presented and briefed to the Committee by the IEC.
On the GPW, he stated that another report would be presented in the next week, and the Committee’s findings after that report should also be included in its Draft Report on Budget Vote 5 of the DHA.
The Draft Report on Budget Vote 5 of the DHA also needs to elevate government's footprint in the Southern African Development Community (the SADC), the issues of the new commissioners and financial challenges for the Border Management Authority (BMA).
He stated that the Committee would not be adopting the report during this meeting but asked Members to give their input on the content.
Ms van der Merwe expressed her gratitude that the Draft Report included the issue of rolling out the DHA’s services to banks since the DHA has gone quiet on this issue and the entity’s delegation did not respond when she enquired during a previous meeting.
Rolling out the services to the banks is a valuable tool that the DHA can use to offer its services while also alleviating the pressure on the DHA’s offices themselves. She recalled that the Minister of the DHA stated that the current interventions of the DHA regarding the country’s immigration crisis are only a band-aid approach. The Minister stated that the DHA would be focusing on an all-encompassing plan to deal with the immigration crisis and the broken immigration system.
She suggested that the Committee include a recommendation that the DHA table a National Plan of Action to the Committee detailing how the DHA will address the immigration crises.
She stated that she was very wary about the immigration inspections, as she recently saw that many of these inspections are fruitless. The Committee should be kept up to date on outcomes of immigration inspections and indicators if the inspections result in any improvements in the compliance with the country’s immigration laws.
On the GPW, she stated that there should be a recommendation that the entity must regularly report on the filling of vacancies. It is also important for DHA to expand its footprint in the SADC and report on progress in this regard.
Mr Roos noted that he would submit written inputs on the Committee’s Draft Report to reflect his concerns and contributions to the current content of the Draft Report.
Mr Salmon, Content Advisor, stated that he has noted the inputs from Members and will await the written input and suggestions from the Members of the Committee.
The Chairperson stated that Members had noted the Draft Report and the issues that should find expression in the Draft Report to strengthen it.
When the Committee adopts the Draft Report, it should include all of the issues raised when the Committee interacted with the DHA, the IEC, and the GPW.
He thanked Mr Salmon, Content Advisor, for his hard work in drafting the Draft Report.
Committee Programme for the second term of Parliament
The last item on the agenda was for the Committee to engage with its Committee Programme for the second term of Parliament.
Mr Salmon, Content Advisor, and Mr Eddie Mathonsi, the Secretariat of the Committee, presented the Committee Programme to Members.
The meeting was adjourned.
Chabane, Mr MS
Hendricks, Mr MGE
Legwase, Ms TI
Modise, Ms M
Pillay, Mr KB
Roos, Mr AC
Tito, Ms LF
van der Merwe, Ms LL
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