Electoral Amendment Bill: Further responses by DHA & IEC, with Ministry; DHA Budget: Committee Report
13 May 2022
Chairperson: Mr M Chabane (ANC)
Tracking the Electoral Reform Legislation in Parliament
In this virtual meeting, the Portfolio Committee on Home Affairs (the Committee) was briefed by the Ministry and officials from the Department of Home Affairs (DHA) and the Independent Electoral Commission (the IEC) Commissioners on the public participation report and constitutional aspects of the Electoral Amendment Bill.
The Committee was generally satisfied with the recommendations and advice presented by the DHA and IEC. However, the filling of a seat vacated by an independent candidate appeared to be a contentious issue. A potential solution was to allocate the vacant seat to the next independent candidate with the highest number of votes obtained in the last election, bypassing political parties. This was however a policy choice, requiring a political solution. Further discussions would take place during the deliberation process.
The Committee was deeply concerned about media reports linking the death of a Zimbabwean PhD student to the lack of assistance from the DHA to renew his study permit. Results from a provisional investigation by the DHA revealed that, at the time of his death, the student was in possession of valid documentation for registration purposes. The Committee resolved to request a report on the sequence of events from the DHA and to liaise with the Higher Education and Training Portfolio Committee on the matter.
In addition, the Committee adopted the budget vote report of the DHA.
The Chairperson remarked that the meeting was scheduled to receive the comments from the Department of Home Affairs (DHA) and the Independent Electoral Commission (the IEC). He thanked the staff of the Committee and acknowledged the work done on the previous report by Parliament’s Legal Services (PLS). The Committee met with the MANCO to reflect on the work of the DHA and would continue to engage the DHA, IEC and Government Printing Works (GPW) on complaints raised by members of the public.
The Chairperson was concerned about recent developments in the media regarding the Zimbabwean PhD student who committed suicide due to expired paperwork. He sought clarity on the matter and requested the Minister, Dr Aaron Motsoaledi and Deputy Minister, Mr Njabulo Nzuza to reflect on and respond to the newspaper reports. He drew attention to the weakness of the Department to timely respond to some of the issues raised by Members. The Committee decided to engage directly with officials instead of interacting via the Minister and Deputy Minister. The Minister would be given an opportunity, towards the end of the meeting, to respond to both matters.
The Chairperson invited the Minister to introduce the officials from the DHA and IEC.
The Minister delegated the task of introducing the officials to Mr Tommy Makhode, Director-General, DHA and Ms Janet Love, Vice-Chairperson, IEC. Officials from both teams were then introduced to Members.
Minister’s opening remarks
The Minister remarked that the Department would mainly respond to four questions raised by PLS in terms of the voluntary association and independent candidates (ICs), the residency requirement for ICs, the filling of IC vacancies, and provisions relating to party liaisons committees and agents. He emphasised the essence of the Constitutional Court judgment was to allow individuals to participate in the elections as ICs. The requirement was that ICs must be a resident of the constituency in which they are contesting elections. The biggest issue related to vacancies because the Bill did not provide a mechanism, prior to the next election, for filling a seat allocated to an independent candidate when it becomes vacant. The ANC was not ideologically or politically opposed to filling vacant seats of ICs but was mindful of being in perpetual election mode which was a concern raised by some EFF members as well. An alternative method to fill vacant seats without conducting by-elections was being proposed. In terms of the submission, the results of the previous election would be recalculated. The seat would then be allocated to the next independent candidate with the highest number of votes, skipping votes garnered by political parties. He asked for guidance from the Committee on the proposal. The Bill did not make provision for the appointment of agents by independent candidates. He said Adv De Beer would expand on the proposal to accommodate ICs in the presentation.
Department of Home Affairs responses to questions raised by Parliament’s Legal Services
Adv Mitchell de Beer, Legal Counsel, DHA, said he would be focusing on the four legal issues which the Minister had briefly introduced.
1. Voluntary associations and independent candidates
The Amendment Bill allowed for independent candidates to stand for office without having to associate with other candidates or parties. In terms of the Electoral Act, citizens would still be allowed to contest elections in association with a political party.
2. Residency requirement of independent candidates
The Amendment Bill required that the residential address of an independent candidate must be situated within the region or province in which the election would be contested. This requirement was also applicable to political party candidates appearing on regional lists. ICs intending to contest for a ward in local government elections are required to be registered within the municipality as per the Local Government Municipal Electoral Act, No. 27 of 2000.
3. Vacant positions
The Amendment Bill stipulated that in the event of a vacancy in a seat allocated to an independent candidate, the seat will remain vacant until the next election. Holding by-elections each time a vacancy occurred, was not a workable solution. A potential solution was to allocate the vacant seat to the next independent candidate with the highest number of votes, bypassing political parties. This was however a policy choice that political parties needed to make.
4. Provision for party liaison committees and agents
The Amendment Bill did not make provision for the appointment of agents for independent candidates. It would be unfair to not provide the same opportunity for ICs that political parties were entitled to. Regulation 2.3.3 was considering the inclusion of representatives for ICs in liaison committees for municipal elections. The Commission will have to amend the regulation to include ICs in liaison committees for national and provincial elections.
Ms M Molekwa (ANC) appreciated the responses presented by Adv De Beer.
Ms A Khanyile (DA) said the responses provided clarity in terms of what needed to happen when the seat of an independent candidate is vacated. She was concerned about service delivery should the seat remain vacant until the next election. The matter of party agents for independent candidates needed further attention. She sought guidance from the IEC on the number of agents that could be accommodated in voting districts.
Mr A Roos (DA) said the basis of the New Nation case was the right not to associate. It was therefore fair to ensure a level of general proportionality that was reasonable. It was important to note that if an independent candidate vacates a seat, for whatever reason, the fairness of skipping the next political party and selecting an independent candidate should be reviewed. He argued that it would be fair to allocate the seat to the next political party, should it be next in line in terms of the number of votes, even if it was to replace an independent candidate.
Ms T Legwase (ANC) said the filling of vacancies was a bit problematic. She thanked the Department for the presentation and the Minister for providing clarity on the matter.
Ms A Ramolobeng (ANC) noted the responses from the Department and thanked the Minister for providing clarity.
Mr K Pillay (ANC) was pleased with the responses. It clarified many of the discussions held over the last couple of months. The conclusion of the report summed up the criteria for participation as ICs to contest elections. He asked for an explanation on how the next candidate on the list would be determined to fill a vacancy of an independent candidate.
The Chairperson requested the IEC to expand on the issue of party liaison committees and representation of ICs in voting districts. He asked the Minister for his view on gender representation in light of the proposal to skip political parties when allocating vacant positions of ICs. He questioned whether it would reflect the constituency if the next independent candidate had gained only ten votes.
The Minister replied that gender representation was one of the ten overriding principles of the Ministerial Advisory Committee (MAC). It was the same ten principles documented in the Van Zyl Slabbert report. Parliament was relying on political parties to balance gender issues in terms of proportional representation. Political parties should use the 200 compensatory seats in the National Assembly to cater for gender representation. It would advance the course of gender representation if a seat left vacant by either a male or female candidate was filled by another female candidate.
Adv De Beer said the reallocation of seats to fill a vacancy, was a policy issue and the implications thereof had not yet been fully considered.
The Chairperson trusted that Members had taken note of the responses so that future deliberations could be based on informed views. He called on the IEC to engage the Committee.
Independent Electoral Commission submission on technical aspects of the Electoral Amendment Bill
Ms Love said the presentation was based on the Amendment Bill before Parliament. A synopsis of the Bill was compiled to provide technical advice for the Committee to consider. The focus was placed on five key issues because it was impossible to deal with every scenario. But the IEC was ready to assist with any additional issues should the Committee decide to make further submissions.
Mr Masego Sheburi, Deputy CEO: Electoral Operations, IEC, said the Bill underscored the separation of power principle.
The presentation was interrupted by the Minister who requested that the screen be enlarged as he was unable to view the small print. He had previously raised a similar concern.
The Chairperson intervened and asked the Minister to focus on the subject matter and not on his challenges. He requested the operator to accommodate the Minister.
The presentation was then changed to full screen mode with the assistance of Mr Adam Salmon, Content Advisor of the Committee.
Me Sheburi said the input had been restricted to technical issues. The Bill adopted a minimalistic approach to accommodate ICs in the electoral system. The submission was to divide the 400 seats in the National Assembly into 200 regional and 200 compensatory seats. Compensatory seats were reserved for contest by political parties while each region is allocated a proportional number of seats to be contested by independent candidates and candidates representing political parties.
The submissions were grouped into five themes. He drew attention to the new proposals by the Department that would render the IEC input, on the filling of vacancies and the residency requirement for ICs, of academic value.
Theme 1: Allocation of regional seats in the National Assembly
The current scheme prescribed the allocation of regional seats in the National Assembly according to the Droop quota and highest surplus method. The Amendment Bill proposed the allocation of regional seats in the National Assembly in three rounds using a combination of quota systems. The IEC suggested the simplification of the three-round allocation system by a single round allocation using a Droop quota and highest remainder method.
Theme 2: Restoring proportionality
A national proportional quota is currently determined after the allocation of regional seats. The Amendment Bill proposed the restoration of proportionality by determining a compensatory quota. The IEC suggested the current scheme be adapted based on a recalculation of the national quota.
Theme 3: Filling of independent candidate vacancies
The existing scheme required that vacancies in the National Assembly and Provincial Legislatures be filled by candidates from elected party lists. The Amendment Bill proposed to leave seats allocated to independent candidates vacant until the next election. The IEC suggested that the vacant seat be allocated to the party or available independent candidate with the highest remainder of votes in the relevant regional election.
Theme 4: Eligibility of candidates to contest regional election for the National Assembly and election of Provincial Legislatures
The current scheme allowed a political party candidate to appear on a party’s regional and provincial lists even if the candidate does not reside in the region or province in which the election is contested. The Amendment Bill proposed the retention of the current scheme for political party candidates. But required independent candidates to be nominated as a candidate in a region in which the candidate was a resident or a registered voter. The Commission suggested that a qualifying independent candidate must be entitled to contest regional elections in all nine provinces.
Theme 5: Number of ballots
In the current scheme, a registered voter is given two ballot papers, i.e. one for the National Assembly and another for the legislature of the province in which he or she is registered to vote. The Amendment Bill proposed the retention of the scheme with the additional requirement that the regional ballot paper shall include the independent candidates together with the relevant political parties. The IEC suggested the use of three separate ballots. The first ballot for the election of members to fill the 200 compensatory seats in the National Assembly. The second ballot for the election of members to fill the 200 regional seats of the National Assembly. The third ballot for the election of members of the provincial legislature in each province.
Ms Legwase thanked the IEC for the recommendations.
Ms Khanyile welcomed the presentation and said the proposals were suitable.
Ms Molekwa noted the presentation but was concerned that the proposed mechanism to fill vacancies would cause confusion amongst political parties and ICs. She asked if an alternative proposal was not available.
Mr Roos said it must be considered that ICs would be contesting elections as individuals and not as an association or a group of ICs. It was therefore unclear if an individual contesting as an independent candidate could be replaced in a seat left vacant by another individual.
Mr Pillay welcomed the IEC recommendations and said they provided direction and clarity in terms of the filling of vacancies. In terms of his understanding, a vacant seat could be replaced by the next in line which could either be a political party or an independent candidate.
The Chairperson asked the IEC to comment on the two different views expressed by Mr Roos and Mr Pillay.
Mr Sheburi replied that a method to fill the vacant seat must be found. It was not proper to leave one category of seat vacant. A good and trusted scheme exists to accommodate independent ward candidates in local government and by-elections.
Ms Love said the discussion on the replacement of candidates highlighted how closely the matter bordered on the issue of policy. She suggested the gender and women representation matter could be considered as a policy should Members wish to do so. The size of voting districts, to accommodate independent candidates, would be investigated. Different practical implications would become clearer as the Bill was being finalised.
The Minister appreciated the work of the IEC Commissioners and praised their credentials and unmatched practical experience as election practitioners. He drew attention to the IEC proposal to drop the three-round seat allocation system and replace it with a single-round method. The comments made by Mr Roos and Mr Pillay had merit. Independent Candidates need to be supported. The way was now clear to proceed and finalise the Bill.
The Chairperson trusted that PLS noted the comments and responses of the IEC and DHA. The Committee would interface with PLS for their opinion on the issues that were raised.
Adv Siviwe Njikela, Senior Parliamentary Legal Advisor, said the team would reflect and provide feedback to Members.
The Chairperson said the Committee would interact with the Minister when deliberations begin. He reminded Members that soon after the judgment was handed down, the IEC was invited to give feedback on lessons learned and the implication of similar policies implemented by other countries. He thanked the IEC team for their efforts and willingness to assist with any technical issues. The IEC was the last step before decisions taken by Parliament were implemented. The Committee would engage PLS to finalise the report and the Bill before submitting it to Parliament for debate. This discussion indicated that the item is being finalised. The commitment was to finish the task that the Constitutional Court had directed the Committee to do.
Home Affairs Budget: Committee Report
Mr Adam Salmon, Content Advisor of the Committee, presented the Committee Report on the DHA budget. A minor amendment proposed by Mr Roos, had been captured.
The Chairperson said the report had been reviewed and needed to be adopted for the record.
Ms Khanyile said the DA did not support the budget vote and reserved comment.
Mr Roos remarked that a number of recommendations in the report had been carried forward from the previous year. The Committee needed to interrogate why previous recommendations had not been implemented.
The Chairperson said the report reflected the input of the DHA, IEC and GPW, both in terms of progress made, challenges that had been highlighted and the commitment of the Committee and all stakeholders.
The report was adopted.
Report: ATC20220513: Portfolio Committee on Home Affairs Report: Vote 5 Annual Performance Plans and Budget of the Department of Home affairs, Electoral Commission and Government Printing Works, dated 13 May 2022
The Chairperson invited the Minister to comment on the two current issues, i.e. the concern of MANCO that responses from the Department to some of the issues raised by Members were not timely provided, and the statement that was issued on the reported death of the Zimbabwean PhD student.
The Minister confirmed that the death of a Zimbabwean PhD student was reported by News24 on 6 May 2022. The story insinuated that the student committed suicide on 30 April 2022 because he was unable to register at the University of the Witwatersrand (WITS) due to an expired study permit. The story continued that he was unable to register as a foreign student without the required documentation. The narrative in the media, that he had been in regular contact with Home Affairs to process his documents, was insinuating that the Department was not doing its work and this led to the death of the student. As a result, the former Zimbabwean Minister of Education, Prof Jonathan Moyo, issued a scathing statement attacking the Minister directly and linking the death of the student to the afrophobic tendencies of the Minister of Home Affairs. The Department issued a statement on 11 May 2022 to clarify the issue. Any death is sad and painful especially if it is done by suicide. It was unfortunate that the death was being used for political mileage. He was expecting WITS to release a suicide note which would indicate if the student had died because of Home Affairs but it was not forthcoming.
An investigation was done to determine where the Department had gone wrong. The facts indicate that the student was not a holder of a Zimbabwean exemption permit. Even if he had been an exemption permit holder, this particular permit only expires on 31 December 2022. Therefore, any person with this permit could not be stopped from registering in the country. In terms of a directive issued in the Government Gazette on 28 September 2021, students on study permits were informed to start applying for visas. During the state of disaster, the visa applications were extended. The visa of this student expired in January 2022 and was extended until May 2022 because he was a senior student. The expired visa could not have affected his registration because it was still valid under the extension. He did not need the Department for the purpose of registration. It was not clear why he did not register in March 2022 when he still had valid documentation for registration purposes. The notion that he had been in regular contact with Home Affairs was incorrect. His first application was received on 21 April 2022 when a letter of good cause, for late application, was given to him. He committed suicide nine days later. The Minister condemned the insinuation that the tragic death of the student could be laid at the door of the Department. The university owed the public an explanation as it was in the best position to know what had happened. Shifting the blame to the Department was unhelpful and unacceptable.
The Chairperson proposed that a session be scheduled to discuss the Department’s response to immigration issues. He requested the Minister to provide a report on the sequence of events to enable the Committee to review the matter from an oversight position. The university would be requested to formulate its position. Any issue arising from the conduct outside policy positions of government required follow-up. He was concerned about allegations that were levelled against the Department on a regular basis. The Committee was awaiting a full report from the Department.
Ms Legwase agreed that a session was needed to discuss all related issues with the Department. She thanked the Minister for the update and warned that the Committee should not become reactionary.
Ms Khanyile expressed condolences to the family of the student. The proposal of the Chairperson would guide the Committee on how to deal with the matter.
Mr Roos welcomed the approach of the Chairperson because it was difficult to get a complete picture from the media. The lack of responses to queries from Members proved how the lives of people were being affected when they struggle to get documents from the Department. At the end of every school year, Members are contacted by learners for assistance to obtain birth certificates in order to get examination results. He proposed the implementation of an e-verification system to determine if someone was able to work or study in the country. This would allow people to verify their statuses for themselves. He stated that the Government Gazette was not widely read.
Mr Pillay agreed that the Committee should proceed with the Chairperson’s proposal.
The Minister understood the view expressed by Mr Roos but did not support the link that he was trying to make with the death of the student, despite the sequence of events that was presented. He drew attention to the Corporate Account Unit of the Department to which all universities had direct access. The unit was providing support in terms of documentation required for the successful registration of all foreign students. He did not appreciate that political football was being played when one student encounters a problem without establishing the exact cause of the problem. He agreed to present the Committee with a written report.
The Chairperson extended collective condolences to the family of the student on behalf of the Committee.
Ms Khanyile expressed her gratitude for the support from officials but said the Department needed to hold managers at local offices accountable for delayed responses to queries. Some of the e-mail trails proved that officials were not getting feedback from local offices.
Mr Roos apologised to the Minister and explained that the recommendation for an e-verification system was done in general terms. It was not meant to be about the death of the student.
In support of the Minister’s response, Mr Makhode explained that more than 1 214 undergraduate and 1 816 postgraduate study visa applications received at UCT were all processed on time. The WITS study visa applications dropped from pre-Covid-19 figures of over 4 000 applications to 2 200 in 2021. All these applications were received and processed on time. The 2 200 applications included 736 from Zimbabwean students. Many of the universities have an international office that liaises closely with the Corporate Account Unit at Home Affairs. The unit was the source for the number of applications processed. The Department received a consolidated list of queries related to civics or immigration matters. A report on queries received from Members would be provided to the Committee on a regular basis which had been the culture in the past.
The Chairperson said Members should be in a position to clarify progress on current matters. The report suggested by the DG would assist in this regard The Department would be requested to provide more information on the assistance that is provided to foreign students. The manner in which the newspapers had been reflecting on the matter brought the Department into disrepute. The misinformation presented in the media was receiving attention in neighbouring countries. The information presented in the Committee demonstrated the progress that had been made in relation to assisting our brothers and sisters who were studying in the country. He thanked the Minister for the support in relation to the report that he agreed to compile. The matter would be referred to the Higher Education Portfolio Committee to deal with the challenges raised by students. He requested Mr Mathonsi, the Committee Secretary, to liaise with the Higher Education Portfolio Committee on the matter of the WITS student. Any allegation apportioned to the DHA must be rebutted based on the accounts of the Minister and the DG. He expressed appreciation for the work of the Department and agreed with Ms Khanyile that the work on the lower structures, i.e. regional and provincial offices, must improve to assist people on the ground level. He said officials must be applauded when good work is done. He confirmed that a session with the Minister would be scheduled to discuss the report on the issue of the Zimbabwean student.
The meeting was adjourned.
Chabane, Mr MS
Khanyile, Ms AT
Legwase, Ms TI
Molekwa, Ms MA
Motsoaledi, Dr PA
Nzuza, Mr NB
Pillay, Mr KB
Ramolobeng, Ms A
Roos, Mr AC
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.