Permit Review report: postponed; Electoral Amendment Bill; with Minister
28 June 2022
Chairperson: Mr M Chabane (ANC)
Tracking the Electoral Reform Legislation in Parliament
The Committee was unanimously displeased that the Permit Review report by the ministerial task team could not be presented after the 7 March report briefing had been cancelled. This time it was because a sufficient number of task team members were unable to be present. The task team was appointed in March 2021 to investigate Home Affairs permits issued since 2004. It was agreed that this important report would be presented on 8 July during the parliamentary recess as it had been long outstanding and affected the nation at large.
The Committee Content Advisor briefed the Committee on outstanding decisions on the Electoral Amendment Bill. The briefing summarised the IEC revised submission on these items which dealt with inclusion of independent candidate agents; signatures and deposits for independent candidates; number of ballots; definition of ‘region’; and allowing independent candidates to run across multiple regions or just for one region and nationally. A decision on Clause 11 was also outstanding about the ratio of regional to compensatory seats of 200:200 or 300:100.
The Committee resolved that agents for independent candidates should be included in voting stations. It would be left to the IEC to regulate and the Committee would not prescribe the number of agents in the Bill. Political parties expressed differing views on multiple regions and Clause 11. The ANC felt that independent candidates should be allowed to contest only in one region, which could be either where the candidate resides or where the candidate chose to contest. The DA and IFP felt that independent candidates should be allowed to contest in more than one region. If political parties were able to compete or participate across the country then so should independent candidates. The DA proposed a ratio of 3:1 for seats. The ANC wanted the ratio of 2:2 seats to remain. The Committee agreed to park these matters so Members could persuade each other without it having to go to a vote. The legal advisors said that it would be premature for an A-List of Committee amendments as there were outstanding issues the Committee needed to agree on in the next meeting.
The Chairperson said the Committee had now an opportunity to look at the documents from the previous meeting. The Committee was to continue with deliberations. Members would be able to solicit understanding on the issues that it needed to make decisions on. The Content Advisor would thrash out the key issues the Committee needed to deliberate on to reach an understanding. The Committee needed to begin the drafting of the A-List (Committee amendments) so that it could finalise the decisions on all the issues before it. He appreciated the good work demonstrated by the Committee members and stakeholders. The Committee had resolved to continue with meetings during the recess so that it could complete this legislative process when the National Assembly reopened. There were issues that would require legal consultation as the Committee moved forward with the deliberations.
Ministerial Task Team report on review of permits
The Chairperson noted that the Minister of Home Affairs had informed him that the Department of Home Affairs (DHA) would not be able to present the report on the review of permits as the team that was supposed to present the report was not available to attend the meeting. It was understood from the Minister that it could not continue with the agenda item due to this. All team members involved with the report needed to be present in the meeting. The Chairperson presented the matter to the Committee. Members needed to advise on how the Committee should handle the matter. He asked the Members to comment.
Mr A Roos (DA) said that this report was postponed on 7 March and now it was postponed again. In the previous meeting, the Committee was requested to give leeway to the Minister who had another engagement. The Committee did so on the condition that the report would be served before the end of the term. It was now the end of the term, before a very long recess. Not only did the Committee not have the requested report but now the Committee had to accept that the Minister was present but because two or three people from the Department could not make the meeting, the Committee could not receive the report. He was very annoyed about this as this matter was really critical. A few big moves had been made a few weeks ago; people were asking what was going on. It was very strange as the Committee had received reports before where certain officials were not present and the Minister would carry on and deliver the report. The report should have been presented to the Committee. The fact that the Committee did not have the report at all as some officials could not make this meeting was unacceptable.
The Chairperson noted these comments and corrected one point. The Committee was dealing with the task team appointed by the Minister and not necessarily officials from the Department.
Ms T Legwase (ANC) agreed with Mr Roos that the reasons given were worrisome. If today there was no possibility of the Committee getting the report then it would only be fair that the Committee and the Department made time to deal with the report. If the report could not be presented today then the way forward should be that a timeline be given to the Minister for when the Committee wanted to discuss the report. That should be the way forward.
Ms A Khanyile (DA) agreed with both Members. It was very important for the Committee to get the report. If the Committee was going to have a meeting next week she suggested the report be deliberated on next week. This matter was long overdue as it was supposed to be discussed in March already. She suggested that the Committee discuss it next week if it was having a meeting.
Ms L van der Merwe (IFP) said that at this stage she was quite worried. The Committee could accept that the Minister required his task team. However, this report was long outstanding. It was something that affected the nation at large. People had been asking why the review report had not been released. This comes at a time when South Africa is facing a full-blown immigration crisis. There was so much going wrong. It was not only permits that were a concern. She gave the example of the passport and ID challenges facing South Africans. The Committee needed to deal with this review report. She wanted to receive confirmation that the report was ready, and it was only an issue that the task team was not available. The Committee should then set it down for deliberation next week so Members could get into the issue of this report. The Committee had been waiting for it for far too long. She seconded the proposal that the Committee deals with it as a matter of urgency next week, if the report was indeed ready.
Mr K Pillay (ANC) said that the Committee needed to agree that this was a very important report and the Committee really needed it to be presented to it. However, there may be questions arising from the task team report that the Minister may not be able to directly respond to. That task team would have first-hand knowledge of those matters. He agreed there was an urgency to receive this report, but it would not do any harm if it had to postpone this matter. The Committee needed to receive an indication of when the report would come before it. He proposed that this should be the only item on the agenda in that meeting. The Committee would then be able to deal with it, deliberate on it and finish it.
Ms M Modise (ANC) said that she was covered by the previous speakers. The Committee should find a suitable date to deliberate on this report from the task team that had been investigating permits. It should be the only item on the agenda as it required the Committee to give it special attention. It was long overdue and the Committee should schedule a suitable time to deal with this.
The Chairperson said that he would invite the Minister to respond. Ms van der Merwe had raised an important point about receiving confirmation on the report readiness. He suggested the Committee meet on Friday 8 July and this report would be the only agenda item. The Committee must not delay the Amendment Bill deliberations. He agreed fully with Members that the report was long overdue. The Committee had noted that if the task team was not available then the report could not be presented. The Minister had indicated in a previous meeting that it was a technical report that would need the experts who dealt with the report to interact with the Committee. This was an important subject that affected the country. He asked for an indication from the Minister on the readiness of the report so the Committee could deal with this matter. Would DHA be comfortable meeting on 8 July?
Minister of Home Affairs, Dr Aaron Motsoaledi, responded that he was as anxious as the Members for the review report to come out because the report was ready. There was no other reason the Department was delaying it. This was an investigative report by investigators. It would be remiss of him to try and make himself an investigator and present it to the Committee. The people who were not available were not DHA officials. It had nothing to do with department officials. It was the external people doing the investigation that the Department could not get today. He profusely apologised. All he needed was a date and the Committee had already given him 8 July. It would definitely be done.
He appreciated the fact that the Chairperson said it would be the only agenda item. It must not be mixed with many other items because it was not a small matter. He noted the immensity of what was going to be presented. The Department accepted 8 July and would do everything in its power to ensure that the task team members were present. The task team members were high-powered people. Some of them had since been called to the bench to act and were not easily available. He would ensure to bring a minimum number of them without which the report could not be presented.
The Chairperson asked the parties if 8 July would be appropriate for that meeting.
Ms Khanyile replied that the DA approved 8 July. She requested that Members get the report well in advance. This would enable them to have enough time to peruse the report.
Ms van der Merwe of the IFP agreed to 8 July and asked Members receive the report soonest.
Ms Modise said that the ANC accepted 8 July.
The Chairperson asked the Minister if the report could be submitted to the Committee before 8 July. The Minister had raised a point in the last meeting and he asked him to recap that.
Minister Motsoaledi replied that he had his reservations about reports of a sensitive nature involving investigations. He was not sure if Members should insist on seeing the report. The report was forensic in nature and sensitive. It should be kept under lock. Members should be presented with the report for the first time at the meeting. The Department would not force Members to debate the report immediately. The Committee could call it for another meeting to debate it. He was "jittery" about distributing the report electronically. However, it was in the hands of the Committee. He noted that the Committee had not made this request in the past for reports that were investigative in nature.
The Chairperson said the Committee would interface with the legal team on the status of the report. He would then advise the Minister if the report should be sent earlier or if the Committee receive it on 8 July. He thanked the Members for giving guidance on this matter.
Recap on Electoral Amendment Bill outstanding issues
Mr Adam Salmon, Committee Content Advisor, briefed the Committee on the outstanding issues emanating from previous deliberations on the Electoral Amendment Bill. His presentation summarised the IEC response to these outstanding issues. These included the inclusion of independent candidate agents; whether to allow independent candidates to run across multiple regions or just one region and nationally; if independent candidates and political parties would have the same number of signatures and same deposit; the number of ballots and how the definition of ‘region’ would be defined to avoid confusion. The outstanding decision on Clause 11 was if the ratio of regional to compensatory seats was to be 2:2 as in the current Bill or revised to be 3:1 as preferred by several Members.
The Chairperson said that these were the issues for deliberations today. The Committee would focus on these key areas the IEC and legal teams had advised on. Their inputs had been structured in line with what Members had raised in the Committee’s previous deliberations. There might be other issues the Committee would raise for the purpose of clarity that may also require the legal team. There had been an attempt to persuade the Committee to have a workshop with the IEC. This was not currently favoured. The Committee would deliberate today. If there were other matters that required the IEC then the Committee would invite it to reflect on those matters. The briefing document on the IEC response was the framework the Committee would use for the structured deliberation on the key issues that were raised. The Committee would deal with one item at a time. The Committee needed to allow the stakeholders to draft an A-List so that it could consider it.
Mr Roos said that it was a critical element of fairness to have party agents observe at the voting station. There was a need for independent candidates to have party agents. It was very important. The DA supported that. It was just a matter of how. The Committee discussed having a political liaison committee and then out of those the independent candidates would choose a certain number of persons. It seemed the Committee needed to reach a point where it decides how that would work and what it would look like. Would every independent candidate be allowed to have agents? The other element is that proposed amendment would need to go to the National Assembly to allow it to be added as a clause to the Amendment Bill.
Looking at the statistics for the local government elections, about 5% of votes went to independent candidates. It needed to consider how many candidates could be at each voting station. It was questionable how many agents could be present inside the voting station and how that would work. The Committee had asked for input on this from the IEC on how it could work. He was not sure if the Committee was at the point where it could absolutely decide what it would look like, but it was something that the Committee needed to do. It was not something that could be left out of the Bill. Independents would need to be able to have party agents.
The Chairperson said that the intention of the IEC presentation and the Committee’s deliberations was to focus in for clearer articulation. The Committee should consider how it would take the matter of party agents forward. Members must provide input with the understanding to resolve the matter and not refer it back to the stakeholders. He understood the points raised by Mr Roos.
Ms Khanyile said that it was important for the independent candidates to have agents in the voting districts. It would be difficult to establish how many there would be as the Committee did not know how many independent candidates would partake in the upcoming elections. It would be important for the Committee to have a number, especially considering the size of the voting districts. She proposed a minimum of five party agents per voting district for the independent candidates. It would be up to the independent candidates how they spread the agents to all other voting districts to reach the minimum, if that was doable.
Ms Modise commented on the terminology "party liaison committee" and "party agent". The Bill was clear that it needed to be inclusive and accommodate independent candidates. The terminology was not necessarily an issue. Therefore, it should be ‘liaison committee’ because the independents were not a party. This was a terminology glitch and it needed to be amended to accommodate independent candidates. For ease of reference, it should be 'liaison committee'.
Ms van der Merwe agreed that independent candidates should have agents. If it was a matter of numbers then the proposal by Ms Khanyile about a minimum of five per voting district could be a sensible proposal.
Mr Pillay said that there was consensus to include independent candidates’ agents. He would not delve too much into the number of agents because that could be dealt with in the IEC guidelines. In some voting stations, fewer agents would be allowed due to space constraints. There was a proposal stating: ‘as per the discretion of the presiding officer’. If the voting station was too small then there would be a rotation where the agents would rotate. That was all that could be dealt with at this stage. The principle was that the Bill allow for them to be part of that process.
The Chairperson said that the principle was that agents should be included for independent candidates. All Members agreed on that. The Committee would leave the details to the IEC regulations about their participation. He agreed with Ms van der Merwe that there needed to be fair participation when considering the inclusion of the independent candidates. The Committee may not prescribe the number of party agents. The Committee agreed to leave that to the IEC. The principle stood on the inclusion of agents for independent candidates.
Mr Pillay said that the Committee had lengthy discussions on this. Irrespective of where the independent candidate contests, even if there was contestation in all regions, the independent candidate would occupy only one seat where the candidate had received the highest portion of votes. For that reason, he proposed that it remained the way it was in the Bill. The independent candidate should be allowed to contest in only one region, which could be where the candidate resides or where the candidate chose to contest. A candidate may say that they have a residence in KZN, Gauteng and Limpopo. Then it meant the individual would choose which specific region to contest. The independent candidate should be limited to contest only one region based on the fact that they would be able to occupy only one seat with the highest votes. The Bill should remain as is with independents contesting only one region.
Mr Roos said that the Committee requested input and advice from the IEC on this matter. The advice was that independent candidates should be able to participate in any province because the national election covered all provinces. This was the understanding he had, and that the Committee would be moving forward on that basis. He had also raised general proportionality. It would be problematic if independent candidates were not allowed to be considered for the proportional seats. The DA position was that independent candidates should be able to participate in all regions.
The concern had been raised that if an independent could stand in all regions then an individual party member should also be able to do. His understanding was that you either run as a party candidate or as an independent candidate. Comparing an independent candidate to a party candidate was a different story. A party could put forward a candidate in all provinces and an independent candidate should also be able to do so. General proportionality, which was a big issue, was not on the list of outstanding issues. Independent candidates should also be able to gain a seat by collecting enough votes across the provinces to get a PR seat. This would help reach general proportionality. It was accepted that an independent candidate received a seat but by excluding them from the PR allocation at the end it would destroy the general proportionality of the system. The DA proposal was that independents should be able to stand in multiple regions, as can political parties. The independent candidate would get the seat in the province where they received the most votes. If they did not get a seat from any one of those, then they should get a PR seat if they collected enough votes across the country to gain a PR seat.
Ms van der Merwe said that the Committee had asked for advice on this matter from the IEC. She felt very strongly that if political parties were able to compete or participate across the country then so should independent candidates. She was fully in support of the proposal that they should be able to contest in more than one region and that they take up a seat in the provincial legislature where they received the most votes. The Committee should consider the proposal which Mr Roos had made. It made a lot of sense and the Committee should delve into if a candidate did not get enough votes that the votes they received across the country were then put towards a PR seat. She agreed that independent candidates should be able to contest in multiple regions. It went back to the issue of inclusivity and fairness.
Ms Khanyile said that she was covered by Mr Roos and Ms van der Merwe. She was in support of independent candidates participating in the national elections in all regions.
Ms Legwase said that an independent candidate should only contest in a space where they are registered or where they reside. They should not be able to contest in all the provinces. Political parties contested in all the areas because they were political parties. Being an independent candidate meant being one. In her view, there was no single person that stayed in many provinces. Independent candidates should contest the area where they were registered voters.
Ms Modise said that she was covered by Mr Pillay and Ms Legwase. An independent should only contest where they reside or were registered. Unlike a political party that could solicit more than one seat, an independent could get only one seat should they garner enough votes.
Ms L Tito (EFF) said that an independent candidate should contest only one region where resident.
The Chairperson said that there were two views expressed on this matter.
Mr Pillay pointed out that in the IEC submission there was the later part that the Committee should not forget. The IEC said that ‘this however does not equate to the independent candidate being able to aggregate votes across regions’. While Members had chosen the first part where the IEC said that the independent candidate could contest across all nine regions there was that part at the end that said it did not equate to a candidate being able to aggregate votes. This meant that the votes of all regions could not be combined to qualify for a PR seat. It was important to bear that part of the IEC submission in mind.
The Chairperson said that two views were expressed. The Committee needed to consider the submissions by Members and the IEC response. The Members were expressing two views on the matter. He invited the IEC to provide input as Members needed clarity. Then the Committee would leave it and resolve the matter at a later stage.
Mr Sy Mamabolo, IEC Chief Electoral Officer (CEO), responded that the proposal the Commission made was that independents should be allowed to contest across all nine regions. The same would apply to candidates of political parties. The reason for that was because the National Assembly was the national constituency. It was one national entity. That national entity should be able to be contested from anywhere. That logic was present in the legislation. For the national ballot, one could cast it anywhere because South Africans were voting for a national constituency which was the National Assembly. That was why South Africans could cast the national ballot anywhere. That option should be available to both parties and independent candidates.
It was different for provincial elections. To contest a provincial election the independent candidate had to be a resident of that province. One cannot be a member of a provincial legislature in a province one is not a resident. Participation was circumscribed to a specific province for provincial legislatures. Whereas for the National Assembly, being a national constituency, the independent candidate should be able to contest it anywhere. The provision included by the IEC was that in the event an independent candidate won multiple seats, from different regions, then the independent candidate took the seat where it had the most votes.
The Chairperson thanked the Chief Electoral Officer for providing clarity on that matter.
The Chairperson noted that there were two views on the matter. The views expressed on this subject would be noted. The Committee would come back to it. The Chairperson asked if there were any more inputs from Members.
Mr Pillay said that the IEC had not delved into what he had mentioned previously. He asked for them to clarify the part in its proposal that one should not aggregate votes. It was important.
Mr Roos said that Mr Pillay was correct about the IEC. His input was from a DA policy point of view. He was talking about contesting in a national election to be part of a national constituency. Therefore, if independents were able to contest in different regions they would have to meet the signature requirements and deposit payment requirements of each region. If candidates did not receive enough votes for a seat in any region but made enough votes for a seat on the national list then that should be possible. He understood what the IEC said but he expressed the contrary view as well. The key point from a proportionality point of view was if an independent candidate or a party received 80 000 votes across the country then they should get the PR seat. There should not be a rule that stopped an independent candidate from getting a seat even though one got 80 000 votes from different regions. At the end of the day, the independent candidate was contesting a national election.
Mr Mamabolo said that the nub of the IEC proposition was that the participation of independent candidates happened in the nine regions and not in the PR component. That was the consequence of the proposition made. If the votes of an independent were to be aggregated it meant that the independent had to be on the national ballot. The IEC proposal was that there be three ballots. The independent candidates could not be aggregated for the 200 compensatory seats of the National Assembly if they were not on that ballot. It would mean that independent candidates would have to be allowed to contest in the regional-to-national ballot and the national-to-national ballot. The proportional effect of that had not been looked at by the IEC. The effect of an arrangement like that on overall proportionality had not been looked at yet. The IEC would have to go and look at the mathematical side of it to ensure that it met the demands of section 46 of the Constitution. The practical implication of that was that the independents would have to be on the national-to-national ballot because that was a separate election. The regional election was a separate, distinct election.
The Chairperson asked Mr Pillay if that response had provided clarity on the subject.
Mr Pillay replied that it was very clear. This discussion led to the item about ballots because it affected on which ballot the candidate appeared. He heard what had been said about the provincial legislature and the National Assembly. This would lead to the requirements Mr Roos referred to. If an independent candidate was contesting a legislature they would require signatures for that legislature. If an independent candidate was contesting a seat in the National Assembly it would require signatures for the National Assembly. Each of those items would lead to another clause. The Committee needed to bear in mind while it was deliberating how it affected the different clauses and requirements. For now, he was happy to rest on the matter.
The Chairperson said that two views were expressed by Members on this subject. There was an understanding of participation from the views that had been expressed. The IEC had offered clarity which it had dealt with in its previous presentation. He asked the Committee Secretariat to capture the deliberations on this subject matter well. The Committee would come back to it so that it could thoroughly resolve it.
Signatures and Deposits
Ms van der Merwe had noted in a previous meeting that the Committee needed to get IEC guidance on what would be a fair number of signatures and deposits. The Committee had resolved that deposits and signatures were important and there needed to be a fair formula for independent candidates. The Committee had requested feedback from the IEC but had not received this. The Committee now needed to resolve what was a fair formula. She did not have the answers and she asked if the Committee get IEC guidance. She knew that the Chairperson had said that the Members should not refer back to the stakeholders, but she was not an expert on this.
The Chairperson said that Ms van der Merwe was correct. He had been referring to issues that the IEC had already presented. At the moment the Committee was dealing with subjects that needed clarity. The IEC would come in and deal with this matter. The principle the Committee needed to affirm was that there needed to be signatures and deposits.
Mr Roos said that the IEC had proposed that the quantum of signatures be 50% of the vote count based on the previous equivalent election results. The other item which was not really resolved was that the Committee had to agree on the three-month requirement for somebody to move from a political party to become an independent candidate. This was no later than three months before an election. The concern was about the number of signatures required, how the IEC would process that. Would the IEC be able to process that in time? It was not something the Committee had resolved. The IEC had indicated that it would be quite a challenge, especially if it received a hard copy list. The IEC would then have to go and find 30 000 IDs from that list. It was not being discussed in this meeting, but it was something that the Committee needed to agree on. Was three months a sufficient amount of time? Three months could perhaps not be enough time for the IEC considering the number of signatures it would have to verify. He was hoping the Committee would receive some guidance on that matter to estimate how long it would take and what resources were required to undertake such an exercise. He was happy with the IEC proposal of 50%.
The Chairperson said that the Committee would come back to Ms Love for clarity on the matter.
Ms Legwase agreed with the Chairperson. The signatures and deposits should be left for the regulations. The only body to regulate this was the IEC. Clarity would be sought from the IEC.
Ms Tito said it was best for the Committee to get clarity from the IEC on the deposits and signatures. She agreed with the proposal of 50% of the vote count for signatures.
Mr Pillay said that the deposit amount should be left to the IEC. It should not be stipulated in the Bill because then it would have to be changed all the time. If the IEC was allowed to deal with it, the deposit amount would change based on economic conditions and the need for it to change. The deposit should be left to the IEC. It needed to be a fair deposit. He stressed that it should be a seat equivalent to everyone else. The independent candidate was contesting in that space and would receive a seat with the same number of benefits that came with that. Hence, the independent candidate should be paying the same if it was contesting that space. The deposit amount needed to be left to the IEC. The matter of signatures had to be in the Bill particularly because it could be challenged at a later stage. If it was in the Bill then it would be covered legally. The ANC supported the proposal that it was 50% of the threshold or quota in terms of the previous election seat. That part of it needed to be specified in the Bill.
Ms Modise said that all Members were in agreement that there should be deposits and signatures. She supported what was said by Mr Pillay. The formula should be dealt with by the IEC.
The Chairperson said that Members were in principle resolved on this matter. That needed to be noted. An issue was being raised about the cooling off period. If Members looked back at the notes from the deliberations, there was an understanding affirming a cooling off period of three months. He saw that Mr Roos was giving reasons to go beyond three months. It was correct that deposits should be dealt with by the IEC in the regulations. He asked the IEC to comment on the points raised by Ms van der Merwe and Mr Roos and to provide clarity.
Ms Janet Love, IEC Vice-Chairperson, emphasised what the IEC had put forward in its submission. The IEC was simply saying that the quantum of signatures should be determined in the regulations but should relate to a percentage of the previous results. The 50% as a specific figure was not something that came from the IEC. It was rather to say that there should be a percentage relating to the quota from the previous election. That was the principle the IEC had emphasised in its submission. Deposits would be determined the same way as they were now through regulations.
Mr Mamabolo said that in the first version of the IEC submission it spoke of a percentage and then revised the initial submission. The IEC position was that it had to be a percentage of the quota in the previous equivalent election. To assist the Committee the IEC would be able to look at the 2019 election results and look at the quota for all the nine regions as well as the National Assembly and see where 50% was, where 25% was, or even 15%. Then the Committee could make a determination based on those figures. When the Members saw the actual figures, then they would have a better sense of what was fair and reasonable for the Committee to make a determination.
The IEC had not made a determination on the cooling off period. It was a matter that came up in the Committee. It was not in the IEC submission. If the Committee was asking to hear the IEC view on the matter, the IEC would have to go back and offer a considered view in the next engagement.
The deposit amount was determined in the regulations. Currently to contest election to the National Assembly was R200 000. To contest a province was R45 000. Based on the proposition before the Committee it now needed to regulate a deposit for contesting the region because it was now a separate election. Before determining the deposit quantum for a province, a region or the National Assembly, the IEC would invite submissions from stakeholders, economists, political scientists, academia, civil society, and political parties to discuss what was a fair figure in the prevailing economic circumstances. Having received all those inputs the Commission would then make a determination and pronounce on that by way of amending this regulation. These figures would change from one election to the other. This needed to be balanced against the quantum of signatures as well. It could be dealt with in the regulations.
The Chairperson said that the Committee had sufficiently dealt with this item and had reached an understanding about signatures and deposits. The deposit would be left to the IEC to regulate for the reasons that had been presented. Signatures would have to be affirmed in the Bill as a principle.
It was not within the ambit of the IEC to respond to the cooling off period. It was reflected in the Amendment Bill. The Committee needed to affirm that three-month period. He knew Mr Roos said that the cooling off period should be longer. If there were items that the IEC needed to come back and respond to, then the Committee would deal with that.
Number of Ballots
Mr Roos said that this had been discussed in the last meeting. The DA view was that changing ‘regions’ to ‘multi-member regional constituencies’ for the second ballot could be confusing especially considering that after the next national election, constituencies in the electoral system would be urgently addressed. Once constituencies were created, then ‘multi-member regional constituencies’ would have to be changed back to ‘regions’ or to something else. 'Regions' should continue to be called regions. Once proper constituencies were formed that they be called constituencies. That would avoid the confusion in this section.
Ms Legwase said that the Committee should maintain the current electoral system.
Ms Khanyile said she supported Mr Roos that it should be left as 'regions' and not be changed to 'multi-member regional constituencies'.
Mr Pillay said he was in full support of it remaining as regions. He thought 'multi-member regional constituencies' would just create confusion and the Committee did not want to create confusion.
Ms Modise said that she was in full support that it should remain as 'regions' and not be changed to 'multi-member regional constituencies'.
The Chairperson noted the submissions on the issues and it would record those.
Mr Roos said that the DA proposed a ratio of 300 to 100.
On the second point on clause 11(16), the Committee had discussed this before and expressed the view that parties should be able to top up their lists if they did not have enough candidates. If parties gained more seats than candidates on their list, then they should be given a 72 hour period to submit an updated list.
Mr Pillay said that he was in support of three ballots. Ms Legwase had mentioned earlier that compensatory seats should not be contested by independent candidates. He believed the ratio of 200 to 200 should remain. That should not change.
Ms Khanyile said that she was in support of the 300 to 100 ratio.
Ms Modise supported the ratio remaining 200 to 200. It should not change.
The Chairperson said that this was the framework the Committee agreed to engage on so that it received the expression of views. On the current item, there were two different views that were expressed. In the meeting, there were two items where the Members expressed different views. Members expressed different views on Section D and Clause 11. There was consensus in principle on some of the other areas discussed in the meeting. Certain sections would be submitted to IEC for regulations and other issues would remain in the Bill. That was the contributions of the Members of the Committee. he noted that the Members should not get into discussions on the constituency/electoral system. It may need to be looked at beyond 2024. The Committee would need to deal with the immediate to allow independent candidates to contest which affirmed the position of the Electoral Amendment Bill on the minimalist policy choice.
The Committee would craft the decisions and issues that it had consensus on and understanding since it started deliberations. In the next meeting, those would be presented, and decisions would be affirmed. The Chairperson emphasised that voting was the last stage on the matters. The Members needed to persuade each other in terms of this matter. If there were no resolutions on the different views that were expressed in the meeting then the Committee would opt for voting. The Committee did not want to enter into voting at this point. The Committee still needed to solicit views from the Members and stakeholders, as it was doing today. The Committee needed to appreciate the IEC for clarifying certain issues and recapping the issues that had been raised. He appreciated the Members’ understanding of the process and the contributions. The Chairperson asked the State Law Advisor and the Parliamentary Legal Advisor if there were any other issues to which they wanted to contribute based on the deliberations?
Ms Sarah Govender, Senior State Law Advisor, said that the Office of the Chief State Law Advisor would be guided by the Committee as to what needed to be looked at further. For now, there were no additional issues.
The Chairperson said that the other matter the Committee needed to deal with was the formula presented by the IEC last week. This related to the Droop and Hare quota systems. He needed to get guidance from the Members on that matter so that the Committee can agree in principle.
Ms Telana Halley-Starkey, Parliamentary Legal Adviser, said that the legal team had noticed three items missing from the Content Advisor’s summary. These were:
- The simplification of the three round allocation system in the Amendment Bill by adopting a single round allocation using a Droop quota and highest remainder method.
- The residency requirement. Political parties had a different requirement when it came to residency compared to independent candidates. Independent candidates were required to be "ordinarily resident" whereas political party candidates had only the requirement of being registered to vote in the region.
- How to fill a seat vacancy which was item 34 of schedule 1A in clause 11.
Ms Daksha Kassan, Parliamentary Legal Advisor, commented on the issues agreed to in principle by the Committee this morning. She wanted to provide some guidance on the current electoral system to assist the Committee in reaching a decision on how things should possibly be dealt with in the Amendment Bill. On agents, everyone agreed that independent candidates should have agents representing them at voting stations. The important questions were how and how many? Section 58 of the current Electoral Act states that parties are allowed two party agents at voting stations and four party agents in a venue as well as two party agents in counting stations. Some guidance could perhaps be taken from that.
The IEC proposal mentioned an unlimited number of agents for independents. How practical would this be? She suggested that the Bill expressly state how many agents there should be for each independent candidate so that it was clear and certain. On deposits, the view was correctly expressed that this should be left to the IEC. However, the current Electoral Act did state that parties contesting a national election could pay more of a deposit compared to parties contesting a provincial election. If the decision was that different deposit amounts needed to be set for independent candidates versus parties, nothing would stop the Committee from proposing that in the Bill but then leaving the actual amount to be determined by the IEC.
On signatures, as Mr Pillay had said, that should be expressly stated in the Bill. The IEC had said that it would offer guidance on obtaining quotas from previous elections to assist the Committee in determining how many signatures that should be or what the quota should be. The Local Government: Municipal Electoral Act did state that 50 signatures were needed for candidates contesting wards. It might help to get guidance on how that number was determined so that a proper formula could also be provided in this Bill instead of leaving it for the regulations so that there was certainty in law.
Mr Mamabolo responded to the points raised by Ms Kassan. He noted that better guidance on agents was to be found in section 39 of the Local Government: Municipal Electoral Act. It provided for the number of agents for parties and the number of agents for independents. If it was to be dealt with in the Act then guidance should be taken from section 39 of the Local Government: Municipal Electoral Act.
Ms Kassan added that it was also in section 58 of the current Electoral Act as well.
The Chairperson said the Committee appreciated the observations. The Committee would not want to get into an uncoordinated exchange of submissions between the stakeholders. What Ms Kassan and Mr Mamabolo had raised would be drafted and sent to Members so that it formed part of the Committee’s processing when resolving those issues in the next meeting. He appreciated the contributions; however, the Committee would not want to work outside its framework.
Mr Masego Sheburi, IEC Deputy Chief Electoral Officer: Electoral Operations, said that the proposed draft on agents was in paragraph 18 of the IEC revised submission. The IEC had deliberately moved away from the numbers because it knew the practical difficulties where voting systems were not the same. If numbers were put into the Act then it would not be possible to give practical implementation to those numbers. The IEC's proposed draft meant the Bill dealt with the principle that independents were entitled to have agents. The regulations would deal with the numbers and how to deal with instances where there were a multiple number of parties contesting the election. For example, if there were 50 contesting parties, no matter how big the voting station, it could never accommodate those party agents.
The Chairperson said that some of these matters would be expressly indicated in the A-List. The Committee had requested the IEC brief it on the formula for calculations and on vacancies. Mr Mamabolo had dealt with these in the last meeting. He demonstrated the Droop formula and the Hare formula. Ms Halley-Starkey had also identified that matter. Mr Mamabolo had discussed vacancies and that it may not be necessary to have by-elections. Members had in principle agreed on how to deal with vacancies. That would come in as the Committee dealt with the A-List.
He wanted Members' comments on the Droop versus Hare formula. It was not on the agenda. The Committee could deal with it in the next meeting, or the Committee could exhaust the matter now. He wanted Members’ opinion on this matter.
Mr Pillay said that he was going to indicate those three missing issues. He would be guided by the Chairperson. The Committee could discuss those items in the next meeting or he was happy for Members to deliberate those matters in this meeting. He would take direction from the Committee.
The Chairperson asked if the Members wanted to discuss those items now or in the next meeting. He invited Mr Salmon to speak to the process the Committee needed to follow going forward and to comment on the matter of the A-List.
Mr Salmon said that the Members were largely in agreement on the issues and that there was some clarity from this meeting on the outstanding issues. It was a question of asking the State Law Advisor and Parliamentary Legal Services to come up with an A-List for the Committee to potentially discuss on Friday 1 or Tuesday 5 July. The Committee had missed a meeting last week so it was a little bit behind schedule. The Committee could assess from the stakeholders if they are available and draft an A-List for the Committee for further deliberations.
The Chairperson said that he would ask Ms Kassan for her impression of the A-List later in the meeting. He asked for more contributions on whether the outstanding matters should be deferred to the next meeting, or could the Committee deal with them in this meeting?
Mr Roos said that he was happy to discuss those matters in this meeting. He did feel that the Committee needed to move on. There was general agreement on a lot that had been raised.
Ms Legwase replied that those matters could be dealt with in this meeting.
The Chairperson said that the Committee would proceed on items noted by Ms Halley-Starkey so that the Committee had an in-principle understanding of them. Later Ms Kassan would speak on the process for the A-List. Then the Committee would have an understanding for its next deliberations.
Allocation of regional seats to National Assembly / Vacancies
On the formula for the allocation of seats, Mr Pillay supported the single round Droop quota system. He wanted clarity from the IEC on using the highest surplus versus highest average. It would help the Committee to determine whether to use highest surplus or highest average. The Committee should go with the single round Droop quota system.
On the filling of a seat vacancy, it should be allocated to the next available independent candidate or political party with the highest number of votes.
Mr Roos said that a lot of allocation of seats had to do with whether the independents were on the national list. As he indicated in the last meeting, if one looked at the existing system of seat allocation it gave the best chance of achieving general proportionality. It used Droop. The national seats were first calculated. The national seat threshold was calculated, and seats were allocated that way. In the next round, there was also a single round system using the Droop system to calculate the regional seats. Then it came back to the national list to top up and ensure proportionality.
The two changes from the existing system would then be that an independent candidate could only gain one seat. After five seats were allocated with the remainders in the current system then highest averages would be used. In this case, one would just have to continue with the Droop method for highest remainders. That was the DA proposal. One round was definitely fairer because then there was one threshold for everybody on the Droop system.
If independent candidates were not allowed to contest the national PR seats then it would result in an unfair and unbalanced system that was out of proportion, for the reason he gave earlier. If an independent candidate got 80 000 votes from across the country then they should be able to get the same seat a party would get if the party received 80 000 votes from around the country.
For a vacancy, the existing system was that a political party would fill this from its party list. By utilising the Droop and the highest remainders, there would be a national list which would be formed from that election result, which could be used in future if an independent candidate's seat was vacated. It would then be filled by either the next independent candidate or party that had the highest remainder.
Ms Legwase agreed with Mr Pillay on the one round Droop system. She supported the highest surplus. On the filling of a vacancy, this must be given to the party or independent candidate with the highest number of remainder votes.
Ms Khanyile noted that Ms Kassan had mentioned the 50 signature requirement for the local government elections. The IEC stated that a R200 000 deposit was currently needed to contest the national elections and a R45 000 deposit for provincial elections. The IEC said that in the next meeting they would provide figures so the Committee can be able to propose the deposit that needed to be paid going forward. The IEC figures would also enable the Committee to propose or determine how much the independent candidates would need to pay. She was covered by Mr Roos on the other issues.
Ms Modise said that she was fully in support of the single round Droop quota formula. It was very inclusive and would provide all contesting parties to have an opportunity to gain a seat. The Droop formula should be applied and the highest remainder method. It was very inclusive. On the filling of vacancies, she supported that the next party or independent candidate with the next highest number of votes should get the seat.
The Chairperson thanked the Members for the issues raised. The Committee appreciated the IEC coming back to deal with the Droop formula in the last meeting. The understanding for this meeting was that the Committee needed to consider this formula as well as vacancies. These were the principal issues it would decide on in the next meeting. He invited Ms Halley-Starkey and Ms Kassan to comment on the A-List process.
Ms Halley-Starkey noted that the Committee had not discussed the residency requirement for independent candidates which was not required for political party candidates.
The Chairperson said that the IEC had already touched on the residency matter. The Committee could ask the IEC again so there was a clear understanding.
Mr Mamabolo replied that the IEC proposition on the table was clear. In the national elections, the independent candidate could contest in any region. It should not really matter which region the independent candidate was registered in. However, there would be a registration requirement for provincial elections. One needed to be registered on the provincial segment of the voters’ roll in the relevant province to contest an election to that provincial legislature.
Mr Roos said that the Committee had spoken about independent candidates being able to participate in each province. The only way an independent candidate could participate across the provinces was to stand in each one. If the Committee was saying that independent candidates could stand in each province then should individual members on party lists also be able to appear on the regional list of multiple provinces?
The Chairperson said that he deliberately did not want to allow Members to go back to that again. Committee members were making it difficult for the IEC by raising the same matter again. The Committee would park these matters so that Members could influence each other on the subject matter without necessarily going to a vote. There have been views expressed by Members on this matter and the Committee would come back to it if it was not captured properly. The Committee had not yet concluded those deliberations.
The Committee would come back to it given the submissions and views that had been expressed on how the Committee was to resolve it. The Committee would further deliberate on this matter in the next meeting. Members had different views and Members needed to persuade each other. Members needed to seek more guidance on these matters. The IEC had made its own articulations, positions and submissions. It was the Committee that must be able to find a consensus on moving forward without rushing to vote on the matter. The Committee needed to allow space for mobilising thinking among Members of the Committee on the subject.
Ms Kassan explained that the A-List contained the exact detail of how the Committee wished to amend the Bill. At this point, it might be a bit premature because the Committee still had a lot of outstanding issues that needed to be agreed on. There were two main issues where there were differing views in the Committee today. It put the legal team in a very difficult position to start drafting when they did not have the instruction on what that draft should look like. On agents and signatures, the legal team still needed detail on how many agents for independent candidates and how many signatures. To have an A-List ready for the next Committee meeting would be a bit premature. Once the legal teams have those details and agreement from the Committee then they could put an A-List together. This could be done possibly after the next meeting when the details had been agreed to. That was her view on the A-List process. She invited the State Law Advisor to share her view.
Ms Govender said that the A-List was the instruction on how the Bill should be amended. The State Law Advisors would rely on direction from the Committee as to exactly what the agreement was by the Members. At the moment there were still some issues where there were differing views. For the legal teams to give effect to the A-List it would prefer to have proper instructions from the Committee on all aspects that may need to be amended in the Bill. She agreed with Ms Kassan that the legal teams would await proper instructions and guidance from the Committee on what needed to be included in the A-List.
The Chairperson said that in the next meeting the Committee would finalise the matters on which there were different views. The Committee would then allow the A-List process to start.
Mr Tommy Makhode, Home Affairs Director-General, said that DHA has nothing else to add.
Ms Love said that there was nothing to add from the IEC. When the IEC received the A-List, it would look at the individual clauses.
The Chairperson thanked everyone for contributing to the deliberations to strengthen the Amendment Bill. The Committee would park outstanding issues. The Content Advisor and the legal team would frame notes and come back on in the 5 July meeting and the Committee would deal with those. The Committee would then have the A-List drafted.
On 8 July the Committee would then look at the report that was supposed to be dealt with by the Minister and his task team. The Minister would present the report and then the Committee would get a follow up session.
The Chairperson said he would get guidance and come back to the Committee on how it would handle this sensitive report as indicated by the Minister. The Committee needed to avoid an interdict from the people implicated preventing the report from being presented to the Committee.
The meeting was adjourned.
Chabane, Mr MS
Khanyile, Ms AT
Legwase, Ms TI
Modise, Mr PMP
Motsoaledi, Dr PA
Nzuza, Mr NB
Pillay, Mr KB
Ramolobeng, Ms A
Roos, Mr AC
Tito, Ms LF
van der Merwe, Ms LL
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