Electoral Amendment Bill extension; IEC, DHA, Law Advisor submissions; with Minister

Home Affairs

21 June 2022
Chairperson: Mr M Chabane (ANC)
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Meeting Summary


Speaker of the National Assembly and Another v New Nation Movement NPC and Others (110/19) [2022] ZACC 24 (29 June 2022)

Tracking the Electoral Reform Legislation in Parliament

Parliament's Constitutional and Legal Services Office (CLSO) briefed the Committee on the granting of a Constitutional Court extension on the Electoral Amendment Bill until 10 December 2022. The Department of Home Affairs (DHA), Electoral Commission (IEC) and Parliamentary and State Law Advisors gave responses to matters the Committee raised in its deliberations on the Electoral Amendment Bill. This included proposed changes to clauses 1, 4, 8 and 11. Clause 1 dealt with the definition of ‘region’ and 'party liaison committee'. Clause 4 referred to the "ordinarily resident in the region" requirement for independent candidates. Clause 8 dealt with deposits. In clause 11 the Committee had asked if the ratio of regional to compensatory seats should remain 50:50 seats or change to 75:25 seats or all candidates to contest all 400 seats. On clause 11, the Committee had asked if there should be by-elections for replacing independents and what this would cost; or should votes be transferable as per the Lekota Bill where independents have a list of ‘running mates’; or should the candidate with next highest number of votes in the initial election fill the seat.

The stakeholder responses noted that many of these questions were policy matters. The IEC clarified that it did not engage on policy choices but rather offered advice on the practicality of those policy choices. It gave a briefing on the Droop and Hare Quota Systems. It responded to the drafting of proposed amendments; accommodation of independent candidates in liaison committees, party agents, the eligibility of independent candidates to contest more than one region, electoral deposits, number of ballots, regional and compensatory seats, provincial seats, and the filling of independent candidate vacancies.

The Committee asked further questions on how long it would take the IEC to verify the signatures and the practicality of this; different requirements for independent candidates for deposits and signatures; and multi-member regional constituencies.

On general proportionality, some Members said that if independent candidates were not considered for the proportional representation (PR) seats then it was a killer blow because whatever was done, whether it was Droop or Hare, general proportionality in the regions would be skewed. With the mathematics presented by the IEC, it did not work out. There would not be general proportionality if independent candidates were not considered for PR seats. There was no consensus amongst Members on surplus votes.

The Minister of Home Affairs agreed that the Committee might need a one-day workshop where there would be engagement and debate to reach finality on deliberations.

The Chairperson stated that if the Committee were to consider having a workshop, it must not start the discussion afresh on concluded matters where there was consensus. Members must be able to isolate key issues that would need further consideration with the IEC.

Meeting report

The Chairperson said as the Committee continued its deliberations on the Electoral Amendment Bill, there were areas it had referred to stakeholders for further consultation and advice, in particular on technical and legal matters. The stakeholders had been invited to give their responses.

The Committee would then deliberate on these at its next meeting on 28 June. The Committee had made an application to proceed with deliberations during recess so that it would be able to conclude processing the Bill and report to the National Assembly. Parliament was in recess, but the Committee’s work would continue to ensure that all the areas that required the attention of Parliament were exhausted. The Chairperson read out the agenda of the meeting and invited the CLSO to summarise the outcome of Constitutional Court extension application.
Outcome of Constitutional Court Extension Application
Mr Siviwe Njikela, Senior Parliamentary Legal Adviser, said that the Committee had made an application to the Constitutional Court to extend the deadline for the Electoral Amendment Bill [B1-2022]. There had been a counter application by the Freedom Advocacy Network to oppose Parliament’s application. The Constitutional Court had considered these and issued an order that Parliament had been granted an extension until 10 December 2022. The counter application was dismissed. In Parliament’s affidavit, commitments were made on how quickly it would finish the legislative process so the President would have an opportunity to consider the Bill. If there were comebacks from that consideration, then Parliament would still have sufficient time to deal with those. That was why a full six months had been asked for, which ended on 10 December. It was now up to Parliament to do this within the timeframes granted by the Constitutional Court.

The Chairperson said that Members were privy to the details and questions would not be taken.

Summary of matters for further consultation
Mr Adam Salmon, Committee Content Advisor, briefed the Committee on queries arising from the IEC response to the clauses that might need changes due to the Electoral Amendment Bill deliberations. In clause 1, it was suggested that the definition of ‘region’ was insufficient and needed further clarification and ‘party liaison committee’ should be redefined to include independent candidates. It was suggested to amend clause 4 to bring independents in line with political party candidates who were not required to be ordinarily resident in the region in which they stand for an election. On clause 11(1), Members had deliberated if the ratio of regional and compensatory seats remain 50/50% or change to 75/25% or allow candidates to contest all 400 seats. There was also a proposed amendment for a section that was not in the Bill but could be considered for inclusion. Members were in favour of a proposed amendment to Section 68 and 69 of the Electoral Act to allow independents to have agents present at voting station. This could require an application to the National Assembly for permission to include this in the Bill. The Committee wanted the IEC to clarify if a voting station would be able to accommodate both party agents and agents representing independent candidates.

Department of Home Affairs (DHA) response to Electoral Amendment Bill questions
Mr Tommy Makhode, DHA Director-General, discussed the proposed changes to clauses 1, 4, 8 and 11. Clause 1 dealt with the definition of ‘region’ and how this related to provinces. He stipulated that the term ‘region’ was synonymous with the provinces. Using different terms follows what was currently provided for in the Electoral Act – so as not to confuse the provincial-to-national seats in the National Assembly and the elections for the provincial legislatures.

The Director-General replied that the question on the clause 11 ratio for regional and compensatory seat was a policy question: should the ratio remain 50:50 or change to 75:25 or allow candidates to contest all 400 seats? He pointed to the questions on clause 11(34): if there should be by-elections for replacing independents and the cost; or should votes be transferable as per the Lekota Bill where independents have a list of ‘running mates’; or should candidates with next highest votes from the election fill the seat. He noted that these were policy questions. Counsel was presently working on a memorandum discussing an alternative to filling seats vacated by independent candidates in the National Assembly and Provincial Legislatures.

Parliament Legal Services response to Electoral Amendment Bill questions
Mr Njikela noted that the CLSO responses overlapped with what the Department had stated. These matters overlapped in policy and law and it was not always possible to separate these. The CLSO focused deliberately on legal and constitutional matters with the hope that the Department and IEC would sufficiently deal with policy matters. The CLSO responses dealt with the clause 1 definition of ‘region’; whether the clause 4 amendments to section 31A(1)(a) and 31B(3)(e) should be revised to bring independents in line with political party candidates not being required to ordinarily be a resident in the region they were standing for election. It was noted that the signature requirements in section 31B(3)(a) for independents are not unique, as political parties also have to fulfil certain requirements.

On the clause 11(1) ratio for regional and compensatory seats, a policy decision had been taken to have a split of 200 regional and 200 compensatory seats. The justification for this decision can only be obtained from the Department. The Constitution does not provide an independent candidate with the right to be included in the compensatory seats. It would also prove difficult to reflect general proportionality for independent candidates and compensatory seats. Considering that an independent candidate can only assume one seat, there would be no further need for that independent candidate to gain access to the compensatory seats as they have already obtained their one seat.

On clause 11(34) on by-elections for replacing independents; or should votes be transferable – this was a policy decision. Votes were an expression of the ‘will of the people’. Parties have a party list to fill vacancies. Although it may not be practical to fill a vacancy of an independent, it is constitutionally unjustifiable that a seat remain vacant as section 47(4) of the Constitution provides that ‘vacancies in the National Assembly must be filled in terms of national legislation’.

Office of Chief State Law Advisor (OCSLA) response to Electoral Amendment Bill questions
Adv Suraya Williams, Principal State Law Advisor, said that much of what OCSLA wanted to say had been covered by the two previous presentations. The starting point for any evaluation was the Constitution. These matters were looked at through section 19 of the Constitution. The presentation addressed clause 1 definition of ‘region’ and redefining ‘party liaison committees’ as ‘liaison committees’ or ‘electoral committees’. The presentation also considered clauses 2, 3 and 4 on residence and voter registration requirements for independent candidates and political party candidates.

The Chairperson said that it was clear that the questions were being referred to the IEC.

Electoral Commission (IEC) response to Electoral Amendment Bill questions
Ms Janet Love, IEC Vice-Chairperson, made introductory remarks. There were some additional issues raised such as those that had been put on the table by Mr Njikela that were not raised with the IEC. The IEC would respond to the questions raised by Members.

Mr Sy Mamabolo, IEC Chief Electoral Officer, noted that the interest of the IEC was purely to offer advice to the Committee and to look at the practical implications of the choices that were considered in the Committee. The IEC would maintain a position that did not engage policy choices but rather offer advice on the practical manifestation of those policy choices when they were made.

The IEC presentation provided a comparison between Droop and Hare Quota Systems. ‘Droop’ was defined as the total valid votes divided by number of available seats plus 1; the result plus 1 disregarding fractions is the quota. ‘Hare’ was defined as the total valid votes divided by number of available seats; the result plus 1 disregarding fractions is the quota.

The second half of the presentation dealt with the proposals that were made and discussed the accommodation of independent candidates in liaison committees, party agents, the eligibility of independent candidates to contest more than one region, electoral deposits, number of ballots, regional and compensatory seats, provincial seats, and the filling of independent candidate vacancies

The Chairperson noted that there were issues raised by the Department and Parliament Legal Services that were referred to the IEC. To some extent the IEC presentation did respond to them. However, other matters may need to be further processed by the IEC and the Committee receive a written note on those for consideration during its deliberations to assist the Committee. The Committee was engaging in a necessary process. The Minister may be tempted to respond to some of the comments made by the IEC and legal teams. He would give that opportunity to the Minister. The Committee knew that these were not new issues. This process was a continuous reflection on the matters arising from its deliberations.

Ms T Legwase (ANC) said that the Committee had waited for the IEC specifically to bring more clarity to issues that the Committee had raised previously. After the IEC presentation, she felt it was necessary for the Committee to spend a whole day engaging with the IEC. Listening to the IEC presentation and asking questions at this meeting would not be doing justice to the process. For the Committee to reach a point of concluding the work it was expected to do, it needed to have clarity and more information. She would not be asking any questions at the moment. She requested that Members be given a chance to thoroughly engage with the documents. She proposed that the Committee to have a physical meeting or a whole day engagement, even if it was virtual, with the IEC so that the Members could talk about the issues that had been raised. The Committee receiving a full presentation, asking questions and making comments was not doing justice to the process.

Mr A Roos (DA) said that the inputs from the presenters had added tremendous value to the process. The Committee was still looking for the IEC’s advice on the signature processing. Candidates who were in a political party and then wanted to stand as an independent needed to make that change, not within three months before the election. The concern raised was how long it would take to process the signatures for the signature requirement, especially considering a 30 000 or 40 000 signature requirement. The IEC would have to verify the signatures and it was important that the Committee receive input on the practicality of this. How would the IEC verify them and how long would it take?

On the proposal for multi-member regional constituencies, he was concerned that it might lead to confusion down the line. There was not enough time to split up the country into constituencies before the next election. However, it needed to be urgently considered after the next national election. If a region was being changed to a multi-member regional constituency and then if later constituencies were introduced, it might create confusion. It would mean there would be a separate constituency entity and a separate region entity.

He agreed that changing 'party liaison committee' to 'political liaison committee' was a very good idea, especially when this change was made, it would have a knock-on effect on all sorts of documentation that refers to PLCs. He was happy with the idea.

On surplus votes, Mr Roos said that the content advisor had noted in point 14 that all the Members agreed. He did not remember agreeing to that. Members agreed to the proposal of one seat for an independent candidate but not that surplus votes would be discarded. He would explain why this was important later on. The Committee was there to satisfy the Constitutional Court judgement to facilitate independent candidate participation and to do so in a way that maintains general proportionality. Members had already found each other on most issues. He agreed with point one on the IEC proposal that independent candidates be allowed to stand in multiple regions provided that they met the requirements in each region. It was difficult to compare an independent candidate to a party candidate because the party was able to stand in all provinces. He agreed that the independent should be able to contest in each region. There should be the requirement that was proposed for the provincial legislature. It makes sense as it would be difficult to have a representative in the Gauteng provincial legislature that lived in the Western Cape. A key issue was general proportionality. The Committee had seen the explanation of Droop versus Hare.

If independent candidates were not considered for the PR seats, then it was a killer blow because whatever was done, whether it was Droop or Hare, in the regions the general proportionality would be skewed. At the end of the day, there would be a different quota of votes for political parties, for those 200 seats, and a different seat threshold for an independent candidate. If it was agreed that independents should be able to stand in all the regions, then he did not see a reason those votes could not be added together. If the independent did not get a seat in one of the regions then the combined seats should be considered for a PR seat. With the current mathematics, it did not work out. There would not be general proportionality if independent candidates were not considered for PR seats.

The seat allocation system was being agonised over – and it was something during public participation that even the Ministerial Advisory Committee chairperson, Valli Moosa, questioned. The chairperson had said nobody proposed this system and it was not used anywhere else in the world. The IEC was choking on this complex system but what was required was minor adjustments to the existing system. The existing system had three stages. The first stage was working out the national proportionality on one threshold, all the parties have one threshold that they are judged against. Then the regional seats would be worked out. In each region, it would have its different thresholds. The number of seats that the candidates got would be worked out. In the last round, the difference would be worked out, how many seats the parties got in the different regions. Then those seats were topped up according to the proportionality calculation in step one. If the adaptation was made that an independent candidate received one seat at maximum and that the national Droop allocation which was currently limited to five seats was removed then there was the effect that people were asking for.

If the votes of independent candidates were not dropped, then there would be certain parties who received their vote in terms of their proportionality. The rest of the votes that were topped up by remainders, the more extra seats the independent had that made it, the smaller parties would pick up those seats once a proportion calculation was done. There might be a case of an independent who received many votes and got one seat but if those votes were not discarded, if the votes were kept, it meant that the political parties got seats according to their proportion. Then with the remainder allocation, those seats were more than likely going to go to independent candidates or perhaps smaller parties. The current system with two minor adjustments was going to resolve a lot of the issues that the Bill was faced with. By allowing independents to be considered for the PR list, that entire list could then be considered when an independent candidate needed to be replaced should one become incapacitated or pass away.

Mr Roos discussed the challenge of a recalculation referring to the IEC input on section 42. Under certain circumstances this could result in somebody that was already in, suddenly not having enough seats to make the cut. There were potentially unintended consequences that could happen if votes were discarded for somebody that made it in. Specifically, if they had a large number of votes, it could skew it in an unexpected way. By making two simple adjustments to the existing seat allocation system, one would come up with a proportional remainder system – which could essentially give you a list and from that list, the vacancies of independents could be filled.

Since an extension had been granted until December 2022, it was very important to receive an updated timetable from the IEC that took into account the legislative requirements, the timeframes involved and also the timeframes the IEC required to prepare for the election. It was important for the general public to feel comfortable that the Committee was on track and it was able to measure itself against the timetable on how it was doing.

Mr K Pillay (ANC) said that today's inputs and explanations helped the process a lot because it gave the Members a clear understanding and gave the Committee an opportunity to chart a way forward. The only challenge was that it was quite a lot of information for Members to absorb. He heard the Chairperson saying this was nothing new but the briefings from the IEC and Parliamentary Legal Services made the Members look at things a bit differently.

The Committee had approached it correctly. The Committee would have sufficient time to discuss, and deliberate and then in the next meeting, the Members could come in and make inputs. One thing that stood out for him was the regional/provincial terminology. His understanding from today was that a province was being called a region. Secondly, the current reference to constituency was actually speaking to a provincial legislature whether in the demarcation of provinces or even through the different formulas being used. The number of seats in that legislature would be taken and the number of votes cast within that province. He was trying to understand why it would not be easier to refer to provinces and legislatures as a province and a legislature. There should be clarity if the presentation was referring to a constituency currently as a legislature. Then it would avoid the confusion that Mr Roos had mentioned. It may confuse people when the IEC referred to a constituency. Sometimes constituency was referred to as a smaller block rather than an entire legislature or province.

The highest remainder methodology spoke about a maximum of five seats. The Committee needed to look at that specifically. His proposal was that the highest remainder methodology not be used. The Committee should look into using the average votes per seat. That would be a fair process.

Surplus votes were not a new concept. The Committee needed to understand and accept that. In every election, whether it was local, provincial or national elections, there would be surplus votes. Once the formula was used for that election to allocate seats, the remainder of the votes became surplus because they did not meet the quota or threshold for another seat. This happened to political parties so there was no difference when it then happened to independents. The Committee needed to be fair to the existing process on surplus votes. It happened in all countries and not just in South Africa.

He requested that presentations that Members had not yet received be sent to them so they could really unpack them and cross-reference them with the public submissions to understand better what the different stakeholders were saying. He would be better prepared to ask relevant and pertinent technical questions to the IEC and Department after having looked at them.

The Committee needed to be able to deliberate and reach finality. What was important was not that it needed to reach a deadline but that it needed to get every clause constitutionally correct, legally correct and to be justified but fair for the citizens of South Africa. The Committee needed to take cognisance that it could not disadvantage existing political parties or even the smaller parties just because independent candidates would be accommodated. It was important that the Committee be able to level the playing field but also be able to give what was fair to everyone and a process that made perfect sense for political stability in the country. His submission was that the Committee consider using the average votes per seat methodology and not highest remainder methodology.

Ms L van der Merwe (IFP) thanked the stakeholders for the valuable presentations. She had only received one of the presentations. She hoped that she would get the rest in due course. These might not be new issues that the Committee was dealing with, but she wanted to reaffirm what the Committee said in the previous meeting. The task before the Committee was to create inclusivity, to create fairness, to create parity and create an environment where the playing field was levelled. There needed to be a conducive and enabling environment for independent candidates to be able to fairly stand in elections. The Committee was reaching a point where Members were understanding each other on many of the issues. She agreed that independent candidates should be allowed to stand in all regions. Independent candidates should take a seat in the legislature, if they were elected to the legislature, in the province where they reside. That was the practice with political parties as well.

She agreed that ‘party liaison committee’ should be changed to ‘political liaison committee’. That was a sensible proposal. On deposits, she agreed with Mr Mamabolo’s approach that it should be determined per election considering factors such as economic or other circumstances in the country. She supported the IEC proposal on how vacancies should be filled. The Droop method had been explained to the Committee in great detail. It encouraged far great inclusivity although some of the matters Mr Roos raised on filling vacancies or seat calculations would have to be considered by the Committee.

Ms van der Merwe maintained the view that it would be unfair to expect an independent candidate to pay the same deposit or garner the same number of signatures as political parties. It had been touched on by the IEC as well as by various other presentations. The Committee needed to reach an understanding of what a fair formula would be.

The Committee needed to get greater guidance from the IEC on international best practice. If a political party was expected to pay a R100 000 deposit and it fielded 100 candidates, would it then be that an independent candidate would pay a R1000 deposit? What was a fair number of signatures for an independent candidate? Was it 500 signatures? The Committee needed to start looking at these points in more detail in its next discussions. The Committee should not make it impossible for independent candidates to stand in this election. The Committee was getting to a point where there was greater clarity on some of the issues that it had been grappling with.

Mr F Jacobs (ANC) said that the meeting had been an invaluable experience to observe and to listen to. He commended the Committee and all the presenters for dealing with such a difficult and delicate topic. He observed and learnt, and he commended the team.

The Chairperson asked the Minister and stakeholders if they wanted to respond.

Minister's response
Minister of Home Affairs, Dr Aaron Motsoaledi, said there were two issues he wanted to raise. Listening to Members he was convinced about the proposal made by Ms Legwase that the Committee and presenters might need a one-day workshop where Members did not only listen to inputs and responses but there was continuous engagement and debate so there was more understanding.

He was asking for some form of a workshop as every time the Committee and the Department met there were items which were agreed to. On replacing an independent if there were a vacancy, he thought that matter had been resolved. While the Department's initial document stated that there was going to be no replacement, the IEC came with a proposal which everyone accepted. There would be a replacement but not in the form of a by-election. It would be in the form of recalculation. He thought that was ticked off and that there would be no debate about that because nobody else was challenging it. He strongly believed that a workshop was needed.

IEC response
Ms Love said that the IEC would be open to a one-day workshop as suggested by Ms Legwase. The IEC was in the Committee’s hands in that regard. She noted additional items that the IEC was asked such as an updated timetable and the request for the IEC to make differentiation proposals on signature and deposit requirements. These were things the IEC could take back and discuss. On how long signature processing for candidates would take, the issue here was that it was an example of something that would require a system development, which in itself took time. If the IEC had no system, it would be a very manual process and probably quite unworkable.

Mr Mamabolo said that there were a number of issues that could benefit from possibly having a physical workshop. Some of the points on the table would require the IEC to go into a bit more detail. He supported the idea of a proposed workshop. He did not think a lot would be achieved by the IEC trying to explain these in the current meeting. The IEC would rather defer those matters to the engagement that it hoped the Committee could do in the not-too-distant future.

Closing remarks
The Chairperson said that the work on the Electoral Amendment Bill was a continuous process. Having received the stakeholder briefings, it allowed Members to further deliberate on the issues the Committee had started to engage on. The stakeholders had sufficiently provided clarity on all the questions raised and forwarded by the Members. If the Committee were to consider a workshop, it must not start the discussion afresh. Members must be able to deliberate and isolate key issues that would need further consideration with the IEC. Not all matters would be referred to the workshop with the IEC. The Committee would continue with the deliberations as scheduled.

The IEC was already ready to engage on the A-List of proposed amendments that may be needed on the Electoral Amendment Bill. That was the process that the Committee would be engaging on in the coming deliberations. There would be the consideration of a workshop on all the isolated issues that the Committee should consider. The Chairperson told the Minister that the Committee had been careful. He hoped the Minister had been persuaded that decisions had been taken. There was understanding on areas Members have consensus on. The presentations gave Members new thoughts on some of the issues. At this point, the Committee did not have finality on all the matters but the Committee had managed to deal with some of the items it needed to formulate consensus on.

The Chairperson appreciated the inputs. Members would give new thought to the deliberations the Committee was continuously engaging on. The Committee noted the Droop method that the IEC had articulated and clarified some of the issues Members were concerned about. Ms van der Merwe had raised the principle of fairness. That was the standing articulation informed by the Ministerial Advisory Committee Report on Electoral Reform as well as expressed in the Electoral Amendment Bill. The Committee agreed there needed to be fairness in terms of the Constitutional Court judgement. In next week's meeting, the Committee would continue with the deliberations.

Committee Annual Business Plan: adoption
Mr Salmon presented the Committee Annual Business Plan as finalised.

The Chairperson noted that this report had been presented in the Committee’s last meeting. The Annual Business Plan was before the Committee for adoption. The Committee would have a physical meeting in late September or November with the Department to deal with some of the key issues the Committee and DHA had been collectively working on since the beginning of the Sixth Parliament as the term of office ends next year. The Committee would begin to consider its legacy report as well as identify progress and weaknesses.

Mr Pillay moved for the adoption of the Annual Business Plan. Ms Legwase seconded.

Mr Roos also supported the adoption of the Committee’s Annual Business Plan.

The Committee adopted its 2022 Annual Business Plan.

The Chairperson appreciated that Members had taken time during this recess to continue with their work. The Committee needed to work now to allow the NCOP also to deal with this Amendment Bill. He thanked all stakeholders for continuing with the Electoral Amendment Bill deliberations.

The meeting was adjourned.

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