Electoral Amendment Bill: public participation report; IEC Commissioner Vacancy: OCJ Report
10 May 2022
Chairperson: Mr M Chabane (ANC)
Tracking the Electoral Reform Legislation in Parliament
The Portfolio Committee on Home Affairs received a comprehensive report on submissions made in the public participation process on the Electoral Amendment Bill [1- 2022]. This was part of the thorough process the Committee was undertaking to process the Bill. The Committee resolved that there was a need to engage with the legal services unit within Parliament to further clarify the legal and constitutional matters around the Bill. This is to ensure that the Bill presented to the National Assembly (NA) for consideration is strong and passes constitutional muster.
The Committee also received the initial briefing on a process undertaken to fill a vacancy within the Electoral Commission, as per s6 of the Electoral Commission Act, 1996 (Act 51 of 1996), and resolved to give Members of Parliament time to consider the report from the Chief Justice. The Committee will schedule a date to deliberate and recommend a candidate to the NA, which will then recommend a candidate for the President to appoint.
The process was initiated as a result of the term of office of Mr Glen Mashinini, Chairperson of the Electoral Commission of South Africa (IEC), expiring. The Chief Justice’s report indicated that in accordance with s6 of the Electoral Commission Act, an invitation for candidates to submit applications was advertised and 48 applications were received. The panel shortlisted 12 candidates, of which three withdrew their applications. The panel interviewed nine candidates.
As per s6 (4) of the Act, the Panel submitted the following eight candidates for consideration by the Committee:
Mr J Bekebeke
Adv G C Chaplog-Louw
Adv E N Lambani
Ms N Maharaj
Mr V G Mashinini
Dr T N Mbete
Mr M W Mbomvu
Mr MW Thango
Mr G M White
The panel’s report then listed some of the key features that emerged from the Curriculum Vitae (CV) and interviews of the eight candidates.
Chairperson’s Opening Remarks
The Chairperson reminded the Portfolio Committee on Home Affairs that in the previous week, it received a presentation by Parliament’s Constitutional and Legal Services Office (also referred to as PLS) on the issues that were recorded in the Committee's public hearings. Both oral and written submissions were received, which focused on legal parameters around the Electoral Amendment Bill. The submissions did not focus on the policy option, which was the responsibility of the Committee once all the issues had been brought to its attention.
The Content Advisor, with a team of researchers from different Committees, collated information which was submitted to this Committee. It then invited Mr Adam Salmon, Content Advisor, Portfolio Committee on Home Affairs, to present the issues which arose from the public hearings and the stakeholders to note for information purposes as it went to deliberate on the issues. The Committee would give a fair hearing to the issues that arose, as it prepared for the last comment session with the IEC on Friday on the Electoral Amendment Bill. It would be engaging with both the IEC and the Department of Home Affairs (DHA).
There would also be the presentation of a report on the process that the Chief Justice embarked on in relation to the vacancy at the IEC. Commissioner Glen Mashinini, who was then the Chairperson, had come to the end of his term. The Committee would then establish a process for going forward once the report had been tabled by the team of researchers.
There were no apologies from Members or invited stakeholders.
The Chairperson pointed out that Ms A Ramolobeng (ANC) also served on the Portfolio Committee on Justice and Correctional Services. On Fridays, she could not attend some of this Committee’s meetings because she was an alternate Member and a full-time Member of the Portfolio Committee on Justice and Correctional Services.
Briefing by the Content Advisor on the public participation report on the Electoral Amendment Bill
Mr Salmon was given the opportunity to present to the Committee. His focus was mainly on the report on National oral and written submissions (chapter two) since the Researcher had already covered much of the provincial hearings (see the report for the full details).
In total there were 107 written submissions of which 40 were substantial (more than one page and up to 62 pages).
Of the 40 substantial submissions, the following 13 organisations made oral presentations to the Committee on 1 and 2 March:
1. 70s Group
2. Abatsha Force of Change
3. African School of Governance
4. Citizens Parliament
5. Congress of South African Trade Unions (COSATU)
6. Council for the Advancement of the South African Constitution (CASAC)
7. Inclusive Society Institute (ISI)
8. Independent Candidate Association
9. Indigenous First National Advocacy South Africa (IFNASA)
10. New Nations Movement
11. One South Africa Movement (OSA)
12. Organisation Undoing Tax Abuse (OUTA)
13. Zolani Zonyane
The oral submissions were grouped together with the written submissions because the former were largely dealing with the same content.
Summary of submissions
What follows in the below section is the presentation of the views of the public and organisations on the Bill including some views outside of the Bill which relate to elections in general. The report synthesises and reflects their views as expressed in the submissions. Submissions are presented as such:
Description of Clause:
(Submissions were mostly abbreviated in the presentation during the meeting; please see the report for the full details of each submission.)
Preamble of the Bill
An electoral system must be fair and must be seen to be fair by the public, and must be easily understood. He felt that the new system would require increased voter education because it was more complicated. He also felt that the principle of equal value of votes was not upheld because of the discarding of surplus votes for independent candidates. Emphasis was made that none of the participants submitting during the Ministerial Advisory Committee process, whether the public, academic, civil organisation or political party, had proposed the system that was currently in the Bill. The big lesson from the South African Constitution-making process is that the process is almost as important as the final provisions, hence the need for extensive public participation and consultation.
National Elders Council of South Africa (NECSA):
A year and a half have passed without evidence of implementation, which is the systemic culture of the current political dispensation. This has undermined the Constitutional Court (ConCourt) and the Constitution of South Africa.
African School of Governance; Organisation Undoing Tax Abuse (OUTA):
The African School of Governance submits that the Bill in its present form has failed to comply with the ruling of the Constitutional Court. The Bill does not support the core democratic values of fairness, inclusivity, transparency, openness and accountability. The organisation is of the view that there was no meaningful public participation in drafting the Electoral Amendment Bill. The organisation also believes that the Bill put unnecessary barriers for independent candidates to contest on an equal footing with political parties. A British model could be adopted to remedy this challenge. In Britain, all candidates submit nominations individually. The rules for candidates nominated by political parties are no different from other candidates in the procedures they must follow.
Clause 1 Section 1 Definitions
Prof Dirk Kotzé; FW De Klerk Foundation:
1(e) A region is defined as the “territorial area of a province” [Clause 1(e)], which implies that there will be nine regions similar to the nine provinces. Such an approach has a high potential to confuse the public because regions and provinces are often used as synonyms by the public. A more explicit distinction is required because they refer to completely different elections. One option is to replace “regional seats” with “national constituency seats”, which makes it clearer that they are NA seats.
The implication of this approach is that South Africa will be demarcated into nine huge NA constituencies (which are identical to the provinces). In contrast, most of the proposals made to the Ministerial panel earlier by the Van Zyl Slabbert Task Team included more constituencies. Using such large constituencies will make it very difficult for both categories of regional candidates to campaign effectively and have sufficient financial and other resources for it. This system has a built-in bias in favour of party-nominated individual candidates who can rely on their party’s financing and the party’s campaign infrastructure.
Clause 4, Inserts 3A, B, C, D, E, F in Chapter 3:
Deals with the submission of lists of candidates, by providing that the list or lists must be accompanied by a declaration, signed by each candidate appearing on the party’s regional list of candidates or provincial list of candidates referred to in Schedule 1A, confirming that he or she is registered to vote within the region or province in which the election will take place.
National Elders Council of South Africa (NECSA):
Community civic organisations and independent candidates have in the past been refused funding, and essentially become appendages of well-resourced political parties. The corruption and factional battles South Africa is experiencing nationally are raging provincially, and even worse, at a local government level, which is deemed to be the centre of service delivery to the people. Unless this is addressed, the introduction of independent candidates will be a failed exercise.
As directed by the Constitutional Court judgement, the current unconstitutional Electoral Act must be amended to recognize the full and equal rights of individual and collective citizens in their diversity in terms of s9 Equality statements as follows:
Everyone recognized as a citizen of South Africa is entitled to equal political rights, both individually and collectively to make political choices by nominating, voting, deploying and recalling their own constituency independent public representatives;
All citizens, communities, people and society in their diversity may organise themselves into non-partisan citizens associations, community assemblies, councils and Citizens Parliament to be the collective voice of the people constituting the New Nation of Azania in South Africa in terms of s18 of the Constitution;
These groupings may use the formal names of their villages, farms, townships, suburbs, towns, cities, wards, municipalities, districts, provinces and South Africa for purposes of non-partisanship, inclusiveness and unity;
The attendant structures will be open to all citizens and community organisations formally residing or existing in those demarcated areas as stated above on the basis of identity documents and proof of address only.
Unity and oneness to forge social cohesion and non-partisan nation-building must be encouraged at all material times for stability in governance, socio-economic wellbeing, safety and security of South Africa;
Services ought to be rendered on non-partisan, inclusive, impartial and meritorious basis to all citizens, families, communities and people of South Africa.
(See the report for the full details of the submission.)
NECSA also argued for the full rights of those civic organisations to participate in policy formulation over and above their inclusion in getting seats and being nominated.
Sub-Clause 31B. Constitution Sections 95 and 107 Oath or affirmation to the Republic and obedience to the Constitution and Electoral Act Schedule 2 Code of Conduct
The amended Electoral Amendment Bill must clearly delineate that all public representatives shall be accountable to the citizens, communities, people and Constitution of South Africa first in terms of their oath. Citizens and People’s Parliament should have responsibility to take to court or use any Constitutional means to remove any public representative violating the oath of office and Constitution because of his/her party constitution or resolution as they are paid by the public, not their political parties.
Clause 5, Section 57
Provides for the system of representation in the NA and the provincial legislatures, by expanding the application of Schedule 1A to the Act to include candidate lists and lists of independent candidates.
First National Advocacy South Africa (IFNASA):
The provision for representation in the national and provincial legislatures will result in the wastage of votes. The organisation is of the view that should there be a vacancy of an independent candidate, there should be a mechanism to replace the independent candidate. (See the report for the full details of the submission.)
The Citizens Parliament strongly objects to the current Electoral Amendment Bill [B1-2022] as it only proposes cosmetic alterations to the Electoral Act. In its view, the Bill does not address the concerns raised by the Constitutional Court. The Citizens Parliament rejects Clause 5 of the Bill, which seeks to amend s57A of the Act, which provides for the system of representation in the legislatures. Instead, the Citizen’s Parliament argues that 75% of the seats at legislatures should be reserved for independent candidates and 25% proportional representation as recommended by the Van Zyl Slabbert Report.
Clause 8 Section 106
Provides for the return and forfeiture of a deposit, to provide for the Commission to refund to an independent candidate any deposit paid by such candidate in terms of s31B(3)(b) if the candidate is allocated a seat in the legislature whose election the independent candidate contested.
National Elders Council of South Africa (NECSA):
The Electoral Amendment Bill must do away with the monetary qualification for registration of non-partisan citizen associations, community constituency assemblies or independent candidates and political parties for that matter, to register for and contest elections. This must come to an end as part of the radical eradication of corruption and bribery driven by corrupt politicians and the private sector. The registration for and ability to contest elections must be determined in terms of the number of voters supporting both registration for participation and contesting elections by both political parties and constituency non-partisan governance groupings, including individual independent candidates.
The Citizens Parliament
Rejects that independent candidates should be required to pay a deposit to register their candidacy. Instead, it proposes that proof of voter support and other qualifying criteria should be enough for the independent candidates to register their candidacy, not money.
Institute for Race Relations; FW De Klerk Foundation:
In order to ensure that only serious contenders put their names forward to run as independent candidates, a requirement such as a monetary deposit would be required. To stand as an independent candidate at municipal level, candidates are required to pay a deposit of R1 000. To stand as a candidate for a provincial legislature or for Parliament, this amount could be increased so as to dissuade time wasters while also ensuring that those who are serious are not unfairly excluded due to onerous financial requirements. A deposit of between R5 000 and R10 000 would likely be considered fair for each independent candidate.
Clause 11, Schedule 1A. Sub Clauses 1 to 35
Provides for the system of representation in the NA and provincial legislatures by substituting the schedule with one that includes independent candidates.
New Nation Movement:
The proposals to the Bill can be broadly grouped in four categories:
South Africa is currently made up of 52 district municipalities. These 52 district municipalities should be retained as they are and recognised as 52 multi-member constituencies that citizens can be organised in for the purposes of voting.
In a 400 seat NA, there should be 75%/25% of seats: The Independent Candidates should be allocated 75% of the seats while the remaining 25% is allocated to political parties through proportional representatives.
Voters (residents of a constituency) should have the power to recall the constituency elected representative should they choose to do so, the same way political parties are eligible to recall their representatives.
Direct representatives should be funded by the IEC, similar to political parties.
Prof Dirk Kotzé:
The proposed new system is quite similar to the local government electoral system as well as Lesotho’s electoral system of a mixed member proportional system. Use of the concept “compensatory seats” presumes that the number of independent representatives will be at a minimum. For the purpose of illustrating this point, we can use the current situation in the NA of a total of 400 members, 200 from national PR lists and the other 200 from provincial PR lists. In the Bill’s proposals, the provincial lists will be replaced by the regional members.
If all 200 regional members were party nominated candidates, the notion of compensatory seats will be valid. If, however, the number of elected independent candidates who are not aligned to any party with PR lists becomes significant, the effect of compensatory seats starts to decline. If all 200 seats are filled by independent representatives, the compensatory seats will have no effect. The concept “compensatory seats” has therefore only a limited utility value and does not present the fact that they are in essence the PR list representatives.
The Bill’s proposal is based on the principle of multi-member constituencies. The New Nation Movement court judgement (and the public sentiment in general) supports independent candidates because their inclusion might hopefully improve parliamentarians’ accountability to the voters and make them more accessible to the public in general. Large constituencies, such as Gauteng or KZN each with a few million voters, cannot meet these expectations. If that was indeed possible, then the current provincial legislatures would have done it already.
A second implication of multi-member constituencies is that their representatives will come from different parties and some may be independents. If a voter wants to approach a public representative with a problem, to whom do they go? Who takes responsibility for that issue and who is accountable for it?
Afriforum, Freedom Advocacy Network, FW De Klerk Foundation; Independent Candidate Association; Adv Ebenezer Prophy (on behalf of OSA), Dorothy Kgosi, Raising Righteous Rulers:
The problem is that Independent candidates cannot be allocated more than one seat even where they receive sufficient votes to justify the allocation of more than one seat. Irrespective of how many votes a candidate receives, they will not gain a concomitant increase in influence. The excess votes that the candidate received are scrapped, which results in a negation of the democratic intent of the voters.
In attempting to give effect to the judgement in the New Nation Movement NPC and the rights of political representatives, we cannot lose sight of the rights of voters and what voters expect to get in return for their vote. These votes are wasted or lost, otherwise termed “inefficient” or “surplus”, in that such a vote accomplishes nothing.
The Bill would potentially lead to specious election results where independent candidates are required to participate in elections as “political parties” whilst not being able to translate their potential electoral support into equivalent legislative power. This is unfair and discriminatory against both independent candidates and their voters. The Bill proposes to not take the votes cast for independents into account when determining the proportional representation of political parties. This will mean that the compensatory seats do not act as a way of ensuring proportionality, as is the case with our Local Government electoral system. A single seat for an independent who receives more votes than a political party cannot be said to be proportional.
The organisation argued that the proposed seat allocation in the Amendment Bill is irrational and unconstitutional. The Citizens Parliament rejects the proposal of the method of ballot counting and discarding of “wasted votes” once the independent candidate meets the threshold for a seat in the legislature. For the Citizens’ Parliament, there should be no “wasted votes”. Each vote of the constituency independent should count in favour of constituency independents to the end of the counting process without any discarding.
Independent Candidate Association (ICA); Adv Ebenezer Prophy (on behalf of OSA); Abatsha Force of Change:
Issue is taken with several of the Bill’s proposals, that independents could compete for only 200 regional seats of the NA; that a droop quota would be used only in the award for compensatory seats, for which independents could not compete; that there be no transfer of votes from one candidate to another.
The limitation of independent candidates to compete for only 200 regional seats of the NA unfairly disadvantaged independent candidates, as political parties would be able to contest for all 400 seats in the NA. Therefore independents should be allowed to contest all 400 seats in the NA. Regarding the omission of a droop quota in the first two rounds of voting for independents, this omission would disadvantage independent candidates from being awarded seats more than political parties. As many more people could vote for an independent candidate than their share of the seats, those excess votes were removed from the calculations under the Bill entirely. These then become wasted votes. Moreover, the seat shares of political parties were inflated as a result of their receipt of surplus votes. Consequently, the seat shares of a party may be above their vote share. This would not result in proportional representation.
Seats equal voting power and influence – the more seats controlled by a party, the easier it is for this party to influence the legislative process. This is the core of proportional representation. With the current system, an independent candidate may, in the above scenario, hypothetically receive 550 000 votes, 500 000 of which will be surplus or wasted. That candidate will receive only one seat – and thus have only the influence and voting power of one seat, despite being theoretically imbued with the democratic will of 550 000 voters, whose votes will find no expression anywhere else.
Froneman J in his minority dissenting judgement in New Nation Movement NPC v President of the Republic of South Africa writes as follows (own emphasis):
“The entrenchment of proportional representation, and its achievement through the vehicle of political parties, flows from the prioritisation of equality in political voice (every vote counts equally) over the accountability that might be better secured through a constituency-based system or a mixed system. The “never again” impulse of s19 is therefore not merely that whole categories of citizens must not be disenfranchised, but also that never again must some people’s voices count more than others in our representative democracy. The rationale thus goes beyond disenfranchisement, to the distortion of equality in political voice”. (See the report for the full submission.)
National Elders Council of South Africa (NECSA):
Constitution Section 19 Political Rights
19(1)(c) to campaign for a political party or cause. The Electoral Amendment Bill must state that everyone has the right to campaign for a non-partisan citizens’ association, forum, organisation, movement, community constituency, political party or cause. The current Electoral Act unconstitutionally provides for the President and other political office bearers to be elected only from political parties represented in Parliament. This cause would also like to see the electorate directly electing their own President and other executive public office bearers from all public representatives, including independent candidates at provincial and national levels.
19(3)(b) to stand for public office and, if elected, to hold office. Underpinning this statement is the understanding that the Electoral Amendment Bill must recognize that any citizen of South Africa can be nominated as a constituency independent candidate to stand for public office and, if elected to hold office. This right for everyone to stand for public office, including the President, Deputy President and other Executive Public Offices at provincial and national levels of government, must be facilitated by a relevant clause in the Electoral Amendment Bill.
AfriForum, Freedom Advocacy Network:
The proposed model will be detrimental to simplicity, effectiveness, legitimacy and fairness. The proposed system necessitates an increase in calculation, application of formulae and the potential for permutations arising from the same. The system is not sufficiently simple to grasp and explain. With the spectre of a “wasted” or “inefficient” vote looming over the voter, the system requires far more engagement, critical reasoning and analysis than the South African public is accustomed to.
Tactical voting: Where a voter knows that their preferred candidate can only gain one seat irrespective of how many votes the candidate receives, the voter may choose to vote for a party because the party will have more influence by virtue of the fact that it can obtain more seats.
One South Africa Movement (OSA), Lynette Moody, Pastor Prince Ntsikelelo Soga (I am that man), Mandela Bay Community Movement, Ngwathe Residents Association, Moretele Independent Civic Organization:
Unlike candidates of political parties, independent candidates are elevated into positions of power and influence not by internal political party wrangling but solely by the will of the people. Independent candidates are, arguably, the physical manifestation of some of the most important values of democracy as a philosophical ideal. Why not go the further mile to change the electoral system to save having to change it later if the ConCourt ruling is not addressed properly?
The Lekota Bill would use the transfer of votes to prevent the Amendment Bill in its current form to disincentive people from voting. South Africa is already witnessing a steady decline in voter turnout and the projection for 2024 is dismal. Discarding the votes of an independent candidate can have the consequence of (a) discouraging someone from voting for an independent candidate and/or (b) voting at all because their vote will be rendered useless and will not count toward their preferred candidate or the ultimate composition of the NA or provincial legislatures.
The Lekota Bill allows independent candidates to contest all 400 seats of the NA - both the regional and compensatory seats, thus not depriving independents of their right to fairly contest an election in terms of s19(3)(a) of the Constitution.
It is critical that the Amendment Bill finds ways to ensure that vacancies are filled otherwise it deprives the voters who elected that candidate of representation in the legislature. The People’s Bill presents multiple ways to resolve this which largely emulate the practises followed at local government level. For example, the death of an independent candidate would trigger a by-election. Vacancies have been filled for thousands of councillors; why not for national/provincial representatives.
Qualifications for independent candidates to contest elections: No provision is made in the Electoral Amendment Bill for condonation or waiver of either the signature or deposit requirements. Failure to comply with either requirement will result in disqualification from contesting the elections. It is noted that a candidate running under the banner of a political party does not have to validate their candidacy through the collection of signatures before an election. The imposition of the requirements on independent candidates limits constitutional rights since independent candidates lack the financial and organisational support enjoyed by political parties and:
unjustifiably limits the right to contest elections;
constitutes indirect unfair discrimination against less affluent potential candidates; and
unjustifiably limits the right to dignity.
We urge that the Lekota Bill (People’s Bill) be part of the public hearings as it would be unfair for the public to make submissions of the Executive Bill and not the People’s Bill. The public has not had an opportunity to engage properly with this Bill which is a perfectly viable alternative to the Executive Bill, and it also directly resolves the constitutional issues contained in the Executive Bill.
Organisation Undoing Tax Abuse (OUTA):
On surplus votes, OUTA said that when choosing to stand, a candidate would have to submit his or her name as a primary candidate and then submit a list of secondary candidates. Thus, voters will have the choice of primary and secondary candidates. Considering that s18 of the Constitution refers to the right to associate with others, independents are permitted to associate with all candidates that they wish to and to enter into an agreement with such candidates, where possible (should there be a list of secondary candidates). OUTA referred the Committee to the Private Member’s Bill for proposals on how the process of the transfer of votes will occur. Further, she suggested that going forward the Committee should revisit the Private Member Bill on other recommendations. OUTA remains an amicus curiae in the New Nation Movement Judgement. (See the report for the full submission.)
AfriForum, Institute for Race Relations:
These groups argued that the new system was novel and complex, and would further discourage voters. Such a radical change must be proportionally advantageous and desirable, which the current Bill was not. (See the report for the full submission.)
Afriforum; Institute for Race Relations; First National Advocacy South Africa; New Nation Movement; Abatsha Force of Change:
These groups argued in favour of a single transferable vote, which although complex, retained a link between the constituency and the representative. In this system, candidates in multi-member constituencies are ranked, resulting in an outcome which is proportional. It is used in a number of countries around the world at various levels, including Australia, Malta, Scotland and Ireland. To get elected, each candidate must meet a quota – the quota is determined by the number of positions available for representatives in the constituency and the number of votes cast. Any candidate that has been ranked Number One more times than the quota is elected. However, instead of being ‘lost’, any votes for a candidate falling short of the quota are transferred to the voter’s next-favoured candidate. (See the report for the full submission.)
70s group/ South African Council of Churches; Institute for Race Relations:
The 70s group mentioned the disadvantages and advantages of the 2 main electoral systems considered for South Africa: Multi-Member Constituency and Closed Party List Proportional. (See the report for the full submission.)
Mr Salmon added that the advantages and disadvantages were highlighted in the previous meeting by the researcher, and also in the response by the DHA. There was also an indication of the relative proportionality, connectedness and voter choice of the various systems being proposed.
Thomas R Labuschagne:
Mr Labuschagne’s submission gave an indication of the relative proportionality, connectedness and voter choice of the various systems being proposed. He gave the technical details of exactly what system archives which desired outcome. (See the report for the full submission.)
The Single Transferable Vote system (see the diagram on page 16 of the report) achieves top rankings in Connectedness (1) and Voter Choice (1). It is the one system adjudicated to treat independent candidates equitably.
Points on which consensus or debate are needed on the electoral system chosen:
Votes cast need to carry equal weight throughout the voting systems, and importantly, it is also actual votes cast that need to carry equal weight across all demarcated electoral districts in an election.
Proportionality is relevant at the grouping (party or association) level, not at the individual level (where popularity matters).
The word ‘Independents’ is accepted/recognised as the grouping for all independent candidates contesting elections, or a grouping (that is not a party) needs to be created for this purpose to exist in legislation, to automatically qualify for elections, and where required to be proportionately corrected for in vote counts.
Voting at grouping level should be abolished: votes at the grouping level assume that run-off instructions are confined to a grouping but instead the electorate should determine whether that is the case by being offered run-off choice. All voting should occur at individual level, and through their association with a (single) grouping, any relevant aggregation at grouping level may be performed.
Seats of Parliament are owned by persons being the representatives elect, requiring by-elections should any that was allocated to a person become vacant. No intermediary should own the seat.
The requirements of the Constitutional Court ruling can be met without amendments to the Constitution.
Multiple voting is expected to benefit contestants through their association with groupings through the run-off options it makes available.
The concept of proportional representation, by definition excludes the notion of individuals, and hence independent candidates. What the Bill does is to treat individuals as political parties, but partially conceals this by placing independents as candidates only within provinces. The only means by which individual representation can be included is by separate individual elections, which are then balanced by compensatory seats to achieve overall proportionality, as happens in local government.
Inclusion of individuals on proportional lists inherently introduces distortions of proportionality, with no particular limits or constraints to this distortion. In addition to the built-in distortion, the manner in which the Bill implements this approach adds further deviations from proportionality.
The principal effects of the approach and the implementation is that independent candidates face a significantly higher burden to secure election to the NA and to provincial legislatures than to political parties, but also that the largest political parties benefit substantially, at the expense of smaller parties. While there is always a degree of variability of effect for any particular numerical patterns, the disadvantaging of independent candidates and the advantaging of larger or dominant parties are clear, mathematically verifiable features of the proposed system. When using the quota/system proposed in the Bill using the 2019 election results it shows very clearly that the Bill distorts seat allocations in both the NA (where the effect is greater) and provincial legislatures. It is clear that the proposed system places clear hurdles in the path of independent candidates, as well as distorting representation in a manner that favours larger parties at the expense of smaller parties.
The submission also included various examples of how the current Bill provided for those disadvantages. The description of the proposed system in the MAC Report as a “slightly modified multi-member constituency” is misleading. Superficially, this might be described as such, but there is no system in use where such multi-member constituencies could include as many seats as are envisaged with the regions or the provinces. Where multi-member constituencies allow independent candidates, they do so in the context of far fewer seats, where the distorting effects of blending individual representation with proportional representation are highly constrained.
Aside from violating the specific constitutional mandate on proportional representation, the system proposed in the Bill raises other constitutional questions by placing unnatural barriers in the path of independent candidates. (See the report for the full submission.)
Congress of South African Trade Unions (COSATU):
COSATU supported the Bill, since it addressed flaws in the existing legislation and governance systems, and it did meet the ConCourt judgement. The Bill also provided for minimal disruptions, since it was largely similar to the systems already in place. COSATU also said that there were dangers of a constituency-based system since few residents knew who their ward councillors were. There was also the danger that ward councillors would abuse their power.
Prof Dirk Kotzé; FW De Klerk Foundation, Dorothy Kgosi:
The Court referred to independent candidates as individual candidates who are not nominated by political parties. The Bill takes it further by including individual candidates who are nominated by political parties. As a result, it is very similar to the local government electoral system. It should be noted that the Court judgement specifically excluded the local system as an option for the amendment.
The above commenters also provided the example of how the current calculation in the Bill would not support s19 of the Constitution. (See the report for the full submission.)
70s Group; National Elders Council:
Proposed Solution: Multi-Member Constituencies
The proposed solution is to introduce large, multi-member constituencies as recommended by the majority in the Electoral Task Team (ETT) report of 2003, chaired by Dr Frederik van Zyl Slabbert.
All constituencies across the country will have roughly the same demography (number of voters), and each constituency will be specifically defined, enabling greater engagement with voters.
The commentators proposed that 75% (300) of MPs be directly elected by the voters in defined multi-member constituencies and 25% (100) MPs be proportionately appointed by the respective political parties. This will guarantee that no votes will be lost, but voters will be able to choose the representatives they trust most. (See the report for the full submission.)
Institute for Race Relations; Freedom Advocacy Network:
The closed-list proposal by ETT does not make any provision for independents to stand, as voters would still vote for a party, rather than individuals, to represent them. Conversely, if an open list system was adopted then this problem would be solved. Instead of simply endorsing a party’s slate, voters could select the individuals that they would like to represent them in Parliament and could also vote for individuals from different parties. (See the report for the full submission.)
Institute for Race Relations; FW De Klerk Foundation:
The two systems which South Africa should consider adopting are the Mixed-Member Proportional (MMP) representation system or the Van Zyl Slabbert proposal. Both of these have their advantages and disadvantages in the South African context. The submission then enumerated the advantages and disadvantages of the MMP system and the Van Zyl Slabbert proposal, without proposing any particular solution. The research in the Van Zyl Slabbert report was supported. (See the report for the full submission.)
Inclusive Society Institute (ISI):
The proposals of the institute argue for a mixed constituency/proportional representation system, where, at the National level, 300 candidates would be elected via 66 Multi-Member Constituencies (MMCs) comprising between three and seven members per MMC, and 100 members via a compensatory PR list, which list will be used to ensure overall proportionality in terms of the number of votes cast in the election. The MMC should be based on the existing district and metropolitan council boundaries and the same concept should be applied at the provincial level.
Independent Candidate Association (ICA):
It submitted that independents should be allowed to contest all 400 seats in the NA. (See the report for the full submission.)
FW De Klerk Foundation, Independent Candidate Association (ICA):
The commenters enumerated the various processes that government had gone through in consulting on electoral reform in South Africa from 2003 onwards. For example, there were the High Level Assessment and the Ministerial Advisory Committee processes.
The 2017 High Level Panel under the chairmanship of former President Kgalema Motlanthe was appointed to “assess the content and the implementation of legislation passed since 1994 concerning its effectiveness and possible consequences.” Among its recommendations was a proposal that the Electoral Act should be amended to make provision for a constituency and proportional representation system for national elections. The goal would be to make MPs more accountable to voters in defined constituencies.
2021 Ministerial Advisory Committee
Following the June 2020 “New Nation Judgement”, the Minister of Home Affairs, Dr Aaron Motsoaledi, appointed a Ministerial Advisory Commission under the chairmanship of Mr Valli Moosa to develop and recommend policy options to address the defects of the Electoral Act. On 9 June 2021 the MAC presented two options for the resolution of the defects in the Electoral Act:
The first option would be similar to the present electoral system – except that provinces would serve as MMCs for 200 of the NA seats in which independent candidates would be able to stand for election. The number of MPs elected by each provincial constituency would be determined by the number of registered voters in the province. The remaining 200 seats would be contested as now on a PR basis.
In the second option, the country would be divided into 200 constituencies which would be contested on a first-past-the-post basis. The remaining 200 seats would be elected on the basis of proportional representation in such a manner that seats won by parties would accord with their overall shares of the votes - and thus with the requirement for overall proportional representation. (See the report for the full submission.)
Balancing Advantages and Disadvantages of 100% Proportional Representation and Constituency-Based Systems
Parties will nominate candidates in each MMC to cover 75% (300) of seats in the NA. Local party branches in each MMC will select their own candidates for each seat in that constituency, in consultation with Party Headquarters (HQ). Party HQs will appoint candidates to cover 25% (100) of NA seats according to the party list system, on the same basis as at present. (See the report for the full submission.)
FW De Klerk Foundation:
The Foundation broadly favours the approach set out in the second option presented by the Ministerial Advisory Committee – except that it recommends that there should be 250 – 300 single member constituencies and 100 – 150 representatives elected on a compensatory proportional system. It believes that the more constituency representatives there are the stronger the accountability and responsiveness relationship will be between voters and their representatives. (See the report for the full submission.)
Prof Dirk Kotzé:
Schedule 1A Subclause 6: Complicated formula for allocation of seats:
He indicated that the complicated formula for allocation of seats would disincentive voter participation. (See the report for the full submission.)
Council for the Advancement of the South African Constitution (CASAC):
CASAC's main argument is that for the Electoral Amendment Bill [B1-2022] to achieve its intended outcome, it should focus on strengthening two crucial principles of an electoral system, namely, the principles of accountability and fairness. In terms of fairness, CASAC argues that it can be achieved through electoral mechanics to ensure representativity and the expression of every voter’s voice. Put differently, the composition of legislative bodies should more or less express the will of the people (i.e. proportionality), and votes should not be wasted or discarded where possible.
In terms of accountability, CASAC is of the view that it can be achieved through a single-member constituency system as opposed to the MMC system. For CASAC, a multi-member diffuses accountability between the elected officials and their constituencies. CASAC’s proposal rejects the Bill in its current form because it empowers political parties by disempowering voters.
The MMC model in the Bill is skewed in favour of political parties. CASAC proposes a Single-Member constituency system because it results in better accountability. (See the report for the full submission.)
Afriforum, Adv Ebenezer Prophy (on behalf of OSA):
At paragraphs 22.1 and 22.2 on page 7 it states:
This submission spoke against the system where the candidates receiving a significant amount of votes would not have these translated into a sufficient number of seats.
Freedom Advocacy Network:
The memo and Bill fail to address the consequential contradictions that have not been identified. Should the Bill proceed in its current wording a Constitutional amendment of sections 47 and 106 of the Constitution will be required. Section 47(3)(c) makes retention of party membership a prerequisite for security of tenure and a continuing Parliamentary career. Section 47(3)(C) states:
(3) A person loses membership of the National Assembly if that person—
(a) ceases to be eligible; or
(b) is absent from the Assembly without permission in circumstances for which the rules and orders of the Assembly prescribe loss of membership; or
(c) ceases to be a member of the party that nominated that person as a member of the Assembly.
Furthermore, relating to membership and eligibility in provincial legislatures, section 106 of the Constitution states:
(3) A person loses membership of a provincial legislature if that person—
(a) ceases to be eligible;
(b) is absent from the legislature without permission in circumstances for which the rules and orders of the legislature prescribe loss of membership; or
(c) ceases to be a member of the party that nominated that person as a member of the legislature.
Should the Bill be adopted these sections would need to be amended through constitutional amendment. This, however, is concerningly not discussed or mentioned in the memo.
Inclusive Society Institute, Afriforum:
The national and provincial legislatures may, as a consequence of the judgement, have to rethink how they function now that independent candidates may take up seats. The rules and procedures of the legislature may require amendments, as may the constitutional provisions providing for minority party participation in the business of the legislatures, which will have to be expanded to include independent candidates.
First National Advocacy South Africa (IFNASA):
INFNASA opposes the Bill in its entirety. The organisation is of the view that the Amendment Bill does not cater for the National Council of Provinces (NCOP), and this should be corrected.
In the main, he vehemently objected that the Bill makes political party candidates superior to independent candidates. Parliament was given 24 months to review the Electoral Act for it to be aligned with the provisions of the Constitution. However, it was only after 18 months that the Electoral Amendment Bill was gazette which was on the 31st of December 2021, and it was later introduced on the 10th of January 2022 for public comments by the 21st of February 2022. His view is Parliament has failed to fulfil its mandate to ensure effective participatory democracy as it has failed to introduce the Bill timeously, and then by limiting the public’s opportunity for meaningful responses.
Gauteng Provincial Legislature (GPL):
Section 114 of the Electoral Act refers to the formulas for the determination of the number of seats of provincial legislatures and alludes to Schedule 3.
Schedule 3, Item 2 of the Act stipulates: “the number of seats of a provincial legislature must be determined by awarding one seat for every 100 000 of the population whose ordinary place of residence is within the province, with a minimum of 30 and maximum of 80 seats” as per the Constitution.
The said determination was conducted at the time of the enactment of the Electoral Act by 31 March 1999 and Gauteng Province was allocated 73 members based on the population of the Province at the time.
The country and province’s population have grown exponentially and according to statistics from Stats SA Gauteng Province currently stands at a population of above 14 million.
If said review were to be pursued, Gauteng province would for instance be entitled to the maximum representation of 80 seats in line with the Constitution. Other provinces would also similarly increase their allocation of seats as per the most recent population census from Stats SA.
National Elders Council of South Africa (NECSA); Raising Righteous Rulers:
Parliament must use this opportunity to review and overhaul the whole political system and amend the Electoral Act to effectively restore political power to sovereign citizens in terms of the Constitution. There are far more aspects regarding the constitutional rights of non-partisan citizens, communities, people and their governance structures that must be considered. These go beyond the rightful inclusion of Independent Candidates.
Other than political parties and independent candidates, there should also be citizen and community organisation representation allowed to participate in the political contestation of seats. There should be an overall electoral reform, and a referendum to assess whether one should include these independent candidates, and how extensive the electoral reform needed to be.
NECSA also called on the ruling party to urgently cease its internal factional battles that threaten South Africa’s constitutional democracy and rule of law which has now resulted in political unrest, looting, destruction of property and loss of life. It also urged Parliament to finalise the amendment of the current unconstitutional Electoral Act (already delayed by one and a half years) to transfer sovereign power to make political choices to citizens and meet the deadline given by the Constitutional Court. This should result in 75% to 25% representation of Citizens Constituency Representatives and Political Party Representatives respectively. (See the report for the full submission.)
Dear South Africa: summarising the 67 short submissions via their online platform
From the public participation through our platform, the following major concerns regarding the Bill are apparent:
Firstly, the biggest concern raised by respondents is that the proposed Bill and its suggested electoral framework are complex and not easy to understand. It is submitted that the Bill in its current wording and formulation is not straightforward and would likely lead to electoral apathy and consequently to less electoral participation. It submitted that due to the complexity of the proposed system the Bill does not comply with these requirements and is therefore constitutionally impermissible.
Secondly, it was submitted by various respondents that the proposed framework contained in the Bill could potentially in some elections lead to an amount of “wasted votes” that is constitutionally incongruous. As the Report of the Ministerial Advisory Committee on Electoral System Reform (hereafter “the Report”) itself acknowledges the proposed framework could potentially lead to situations where thousands if not hundreds of thousands of votes are effectively “wasted”.
Thirdly, flowing from the previous objection to the proposed Bill, it is submitted that the proposed framework could potentially lead to a situation where all votes are not considered equal, and the voting power of each vote is no longer equal.
The New Nation Movement NPC & others v President of the Republic of South Africa & others (hereafter “New Nation”) judgement itself held that “never again must some people’s voices count more than others in our representative democracy”.
Fourthly, it is submitted that the Bill in its entirety fails to address the need for accountable and responsive legislators, both on national and provincial levels. South Africans are generally disenchanted with our democratic process due to the high levels of corruption, lack of accountability and general legislative lethargy. Despite this being a pressing issue, the Bill has failed in addressing these general concerns.
Moreover, although the Bill addresses the judgement of New Nation in letter, it fails to give effect to the judgement in spirit. It is submitted that the judgement in New Nation acknowledges the need for “voters to choose their representatives instead of the choice being made for them by political parties”. However, the Report opts for the “easy” option to merely amend the definition of “political party” to include independent candidates, rather than comprehensively amending our electoral framework to fairly, democratically and rationally address the obvious need to allow independent candidates to stand for public office. The proposed system is convoluted and simply bolts independents onto what is still in effect a proportional representation system. (See the report for the full details.)
DearSA submissions in support of the Bill were raised by participants:
Firstly, various respondents praised the Bill for addressing the obvious need to allow independent candidates to stand for public office in national and provincial elections. Allowing independent candidates to directly participate in national and provincial elections would lead to more electoral accountability and responsiveness as required by our Constitution.
Secondly, it is submitted by various respondents that allowing independent candidates to stand for public office would consequently lead to a devolution of power that is currently vested in political parties. It is submitted that this would lead to less abuse of public power and a government that is more responsive to the needs of the electorate.
However, some respondents who indicated that they supported the Bill commented that given the current wording of the Bill it is likely that independent candidates will be severely disadvantaged in the proposed system, with political parties — especially larger ones — being the beneficiaries (as discussed in the objections raised above).
(See page 30 to 35 for a table listing submissions by Province and by concern.)
Mr Salmon added that some of those issues were addressed by the DHA in its response. However, not all of the issues were addressed.
The Chairperson thanked Mr Salmon and his team for their work on the report. The Committee appreciated how the report would assist the work of the Committee as it moved on in its deliberations. He noted that on some of the issues which were presented before the Committee, particularly on the oral submissions. Members did interact with the stakeholders and Non-Governmental Organisations (NGOs) on how there may be a need to establish a process of electoral reform. The Committee was aware that with both the DHA and the PLS, part of the comments on the presentation arose from the draft report that the research team had sent for their attention. In the main, when the Committee was interacting with the PLS and the DHA, it was on the basis of the foundation that was laid by the research team and all of the reports that it had been collating.
The presentation was for noting, and to assist with its being formally presented to the Committee. The report would assist the Committee to interact with the deliberations in the near future.
Ms T Legwase (ANC) wanted to extend gratitude to Mr Salmon and the research team for bringing up this kind of input to the Committee. She suggested that the Committee note the report and then deal with the report as it came up again before it. She suggested that the Committee needed to have a session with the legal team at some point. There was some terminology from the legal side in the report that one would want to get into and get a clear understanding of that. The Committee needed a session, even if it was a closed session, for Members to really understand the legal terminology that appeared in some of the clauses.
Ms M Molekwa (ANC) started by appreciating the presentation. She acknowledged the effort made in the compilation of all submissions by both individuals and organisations. She agreed with Ms Legwase, who had raised important issues.
Ms A Khanyile (DA) noted the report. She also supported the comment made by Ms Legwase specifically that before that matter came back to the Committee for it to deliberate on, there needed to be a session with the legal team so that it could get clarity on the clauses that it needed clarity on. When the Committee came back to deliberate on the matter, it would then know exactly what it was deliberating on.
Mr A Roos (DA) thanked the Content Advisor for a comprehensive report. He also thanked each and every South African who came and contributed to the process. All of those detailed contributions helped the Committee to deliberate on some of the “tougher issues” in considering the Bill.
Mr K Pillay (ANC) congratulated and commended the Committee for the hard work. He encouraged the Members to extend their thanks and gratitude to the Content Advisor and the entire staff complement. He joined Ms Legwase in saying that the Committee appreciated such a concise report. Having listened to legal presentations, having listened to all of the inputs, and looking at the report, he felt that it encapsulated everything that the Committee had done, and the process that had been undertaken to date. He also wanted to note the report for further deliberation as the Committee proceeded in terms of the processes. The Committee now had a holistic understanding of everything thanks to the report. The report had addressed certain points that were raised, and certain submissions that needed attention legally. It also addressed some of the submissions that needed discussion, and it was now placed on a better footing to be able to take the process forward.
The Chairperson said it was important that the Committee took all submissions along in its deliberations. He thanked the team led by Mr Salmon who compiled the report. There were some issues arising from the report which the Committee would interact with. There were some issues that could not be covered in the report. The Committee would deliberate on the various issues in reference to the PLS, the issues arising from the written submissions, and oral submissions, which were conducted on 1 and 2 March, as well as the provincial public hearings. He hoped that there may be other issues reflecting on the jurisdiction of the IEC. He hoped Deputy Commissioner Janet Love, all of the Commissioners in the meeting, and the executive team would take note of those issues. That would assist with a proper formulation of the issues that were arising from the report as the Committee deliberated.
The Committee may need to have a closed session with the PLS because at least it was not dealing with the policy options that the Committee had to resolve on the questions that arose. Such issues may be related to the constitutional issues related to the Electoral Amendment Bill. Members would then be equipped to deal with the issues at hand. It was important that all the issues were understood so that the Committee was fair in terms of the issues arising. Both the Committee and Parliament needed to deliberate on that matter. The report had been noted, and the Committee would come back to the issues that related to the DHA, the IEC and the PLS. The Committee would not pass any stage of the process without proper clarity and being equipped properly, so that it was able to respond to the ConCourt judgement, and also inform the position that the Committee would be taking and deliberating on in Parliament.
IEC Vacant Position
The Committee had reiterated that the term of office of Mr Glen Mashinini, Chairperson of the Independent Electoral Commission, had ended. There was an invitation for interested parties to serve in the IEC. That process went ahead. There were candidates who were shortlisted, and there were interviews were conducted. He observed interviews of all the candidates. The Chief Justice tabled the report on the candidates before the Speaker, and the Speaker referred the report to the Committee. The report would be presented at the meeting. On the process and the issues: The Committee was not going to take decisions that day; the report was just being formally presented. Members needed to then go back and solicit views so that it would come back equipped to deliberate on the candidates. The expectation was that once it had deliberated and had a candidate, a report on that candidate would be presented to Parliament. Parliament would submit a report to the President to appoint, or to consider appointing, the Chairperson of the IEC. At the meeting, the Committee was not appointing a Chairperson. Parliament was only dealing with recommending a Commissioner to the IEC. That responsibility (of appointing a Chairperson) was carried by the President.
Letter to Speaker on the IEC, 7 April 2022
Mr Salmon showed a letter from the ConCourt to the Speaker of the NA on the filling of the vacancy. This letter referred to the Speaker’s letter dated 10 December 2021, which advised that Mr Mashinini’s term of office as Commissioner had come to an end and that there was a request for the process of filling that vacancy. In terms of section 6 of the Electoral Commission Act, 1996 (Act 51 of 1996) the process that needed to be initiated for the ultimate filling of the vacancy was that the Chief Justice requested to convene a panel, which was then done. The Chief Justice established the panel including the Chairperson of the South African Human Rights Commission, the Chairperson of the Commission on Gender Equality and the Public Protector. The Chairperson of the Panel, acting in accordance with section 6(4) and the principles of transparency and openness, gave instructions for the publication of the notice calling for nominations, and upon receipt of applications, the panel compiled a shortlist. The Panel conducted interviews, and thereafter submitted the recommended candidates. The Panel must submit a list of no fewer than eight recommended candidates. From the list of candidates, the Committee then nominates a person that is then recommended by the NA by majority resolution for the appointment by the President.
Following the Speaker’s request, the post that would be vacant when Mr Mashinini’s term of office expires was advertised and suitable candidates were invited to submit their applications. Altogether, 48 applications were received.
The Panel established in terms of section 6(3) of the Electoral Commission Act, 1996 (Act 51 of 1996) charged with the responsibility of interviewing candidates consisted of the Chief Justice as the Chairperson, the Chairperson of the South African Human Rights Commission, Adv Bongani Majola, the Chairperson of the Commission for Gender Equality, Ms Tamara Mathebula, and the Public Protector, Adv Busisiwe Mkhwebane. Unfortunately, three of the 12 candidates withdrew, which left the Panel with nine candidates.
The Panel met on 1 April 2022 and interviewed nine candidates. Bearing in mind the criteria in the Constitution of the Republic of South Africa, 1996 and the Electoral Commission Act, the Panel unanimously decided to submit the following eight recommended names, which it submitted in no particular order:
Mr J Bekebeke
Adv G C Chaplog-Louw
Adv E N Lambani
Ms N Maharaj
Mr V G Mashinini
Dr T N Mbete
Mr M W Mbomvu
Mr MW Thango
Mr G M White
The letter then listed some of the key features that emerged from the curriculum vitae (CVs) and interviews of the eight candidates. (See the letter for the full details.)
During the interviews, the Panel questioned Mr Justice Bekebeke regarding previous proceedings brought against him by a subordinate in the Equality Court. In dealing with this matter, Mr Bekebeke provided the Panel with a detailed response to the events. (See the letter for the full details; this point was also mentioned in the Members’ discussion.)
The Chairperson said that the Committee would deliberate on the report and make recommendations on the scheduled date.
Mr Pillay said that the Committee noted the report for the deliberations.
Ms Molekwa appreciated the briefing on the progress as far as the issue of the IEC Commissioner was concerned. The Committee took note of the report.
Ms Khanyile said that the Committee noted the report. In the Chairperson’s opening remarks on the item of the IEC Commissioner, the Chairperson said that he was observing the interviews. One would have thought that when the Committee noted the report, the Chairperson was also going to make comments. He said that the Committee would discuss the report when it came back. She believed that when it came back, the Committee should make recommendations. It would be unclear for the Committee if it made recommendations without having seen the job advertisements. When she was looking at the report, there was detailed information on how the applicants responded to the questions. When looking at Mr Bekebeke, it was indicated that he was well-prepared for the interview and that he answered questions with confidence. It was also indicated that there were proceedings brought against him by a subordinate in the Equality Court.
Mr Pillay raised a point of order. The Chairperson had already indicated the process, and all Members had no objections to noting the report. Ms Khanyile was going into discussions, and deliberating on submissions. He did not think it would be fair to any of the Members, because all could have been making input. Members agreed that they would be noting the report in that day’s meeting, and discussions should then be deferred to when the report came.
Ms Khanyile said that she was asking clarity-seeking questions. She had a report in front of her that she needed clarity on. With some of the candidates, it was clear that interviewers said what they picked up. But the report was “mum” on some of the candidates. How would the Committee note the report? She did not say that it was incomplete, because she was not sitting in those interviews, but it looked “inconsistent”. On some of the candidates, the report was “mum”, so what was the Committee noting? She wanted to seek clarity on that.
Ms L Tito (EFF) said that she noted the report.
Mr Roos noted the report. The content of the report made it a little bit difficult for the Committee since Members had not seen the interviews and so forth. It would be helpful if the report was a little bit more comprehensive, just with helping Members to differentiate between the candidates.
In response to Mr Roos, Mr Salmon said that detailed CVs of the candidates were distributed to Members. The CVs went into somewhat more detail of the candidates’ experience and qualifications. The CVs were emailed to the Members.
The Chairperson said that when he was observing the interviews, he was not observing the Panel. He observed at a distance. When the interviews were carried by any institution, one could watch the interviews, even when one was not invited. No Member of the Committee was invited. It was a process that was carried out by the Chief Justice, and the team that was sitting on the Panel, with the understanding that the report would come to the Committee to be deliberated on. That was why Members said that the report must be tabled in the Committee: So that Members were able to note the report, and go back to sort through the details, which had been sent for their attention. When the invitation to apply was issued, Members were informed of that process by the Committee Secretary. It was a public invitation. When the Committee deliberated, it would deal with the matter that Ms Khanyile raised. The Committee would then avoid limiting itself as Members on the process; it needed to open up the process, and if there was any issue, it would then table it in deliberation. He thought that it would be appropriate for that session to be presented. At that point, the Committee would ask the Content Advisor to look for other information that could assist it to deliberate on the matter, including the matter that Ms Khanyile raised.
Ms Khanyile said that she was covered. The Chairperson said that the Content Advisor would look for information “that might have been left out”. With Justice Bekebeke, for example, the Committee had an idea of what it was talking about by looking at that summary, even if it did not know him. The Committee would have expected consistency with all the other candidates so that when it deliberated, it would deliberate on something that it could see in the report. Members were not in the interview, and looking at the CVs and attending the interviews were two different matters. The Committee would appreciate more details if those could be provided to it by the Content Advisor.
The Chairperson encouraged the Members not to end the meeting with a view that there was inconsistency in terms of the Chief Justice’s report. The Committee could say that it noted that there were some areas where the Content Advisor must come back to the Committee and empower it on the issues that were identified. The report was written by the Chief Justice and the panellists. The Committee might not have had the authority to have contributed to its writing. The Committee could have the report be presented to it, and then deliberate on the issues at that point. It would take decisions at that time. The Committee noted the issues that were raised.
Mr Salmon said that the Committee could do what the Chairperson mentioned. If Members were interested, he provided a link in the chatbox to the YouTube recording of all the interviews. If Members wanted to listen to the interviews, the recordings were available at the link.
The Chairperson confirmed that he had observed the interviews via the internet. Those who did not interface with the proceedings of the interviews could go to that link. A decision would then be taken at a later point.
The Chairperson thanked the Deputy Commissioner and the other Commissioners who attended the meeting.
The meeting was adjourned.
Chabane, Mr MS
Khanyile, Ms AT
Legwase, Ms TI
Molekwa, Ms MA
Pillay, Mr KB
Roos, Mr AC
Tito, Ms LF
van der Merwe, Ms LL
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