Electoral Amendment Bill: Legal Advisors on draft amendments

Meeting report

The Chairperson said that last week the Committee had received two presentations. One on the permits, which was led by Dr Lubisi. Then there was the deliberation on the Electoral Amendment Bill. The Committee needed to take this opportunity to account for the issues that it had resolved. He appreciated so far, the work that the Committee had managed to deal with. Overall, the Committee had managed to resolve all the issues that were before it. He noted the issues raised by Dr Lubisi and the issues that the Committee would deal with in the third term. The Committee might need to bring back the Minister and the task team to provide an update on the permits. The Committee needed to get an update on those issues. The Minister, Deputy Minister, and DG would be alive to those issues.

The Committee congratulated the entire Department for having demonstrated the continuous work of the Border Management Authority. The Committee had witnessed the launching of the guards and all the systems to demonstrate all the work that the Department, Committee, and Parliament had done to be able to establish the Border Management process. The Committee congratulated the step forward in responding to the challenges facing South African borders. The Committee would take a close interest in terms of monitoring implementation and the issues that members of the community of Limpopo were raising. He noted the positive impact of securing South African borders. The Committee congratulated the first step that the Department had exerted on the ground.

Independent Electoral Commission (IEC) Letter to Committee

The Committee had received a letter from the IEC. The Committee had requested the IEC to come back and respond to and present to the Committee. The IEC had written to the Committee indicating that it had not received the report from its legal counsel. If it had received it, then it would not be possible to present it today because the IEC Commissioners and the entire team needed to familiarise themselves with that report. The Committee allowed the IEC time to come back on Friday to give the Committee the report. Today, the IEC would not give the Committee the report submission as had been requested by the Committee. The Committee would allow the IEC to give a note on that matter so that it was recorded by the Committee.

The Committee Secretary presented the agenda.

The Chairperson invited Mr Moepya to comment on the letter the IEC had sent the Committee.

Mr Mosotho Moepya, Commissioner, IEC, confirmed that the IEC was looking at amendments to Schedule 1A of the Electoral Act which would be made available to the Committee soon. The IEC would be ready to present on Friday.

Briefing by the State Law Advisers on the draft amendments agreed to on the Electoral Amendment Bill

Ms Sarah Govender, Senior State Law Advisor, Office of the Chief State Law Advisor, briefed the Committee on the draft amendments agreed to on the Electoral Amendment Bill. The A-List included proposed amendments to clauses 1, 3, 4, 5, and 10. It also detailed the inclusion of several new clauses.  

Clause 1

Under clause 1 there was the amendment of deleting the definition of ‘party liaison committee’ and replacing it with the definition of ‘political liaison committee’.

Clause 4

Under clause 4 there was an amendment to the signature and deposit requirements for independent candidates. The signature requirement included ‘a completed prescribed form, with electronically submitted signatures of voters, totalling at least fifty percent of the quota for a seat that was required for a seat in the previous elections’. The deposit requirement was defined as the ‘amount to be deposited by an independent candidate contesting an election of a provincial legislature, must be less than the amount for contesting an election of the National Assembly, and such deposits may also be different to the deposits paid by registered parties’.

New clauses

There was a proposed amendment of inserting a new clause after clause 4. It dealt with the issue of independent candidates’ agents. It stated that ‘two agents, either from different parties or representing different independent candidates, if available’. There was an inclusion of another clause stating ‘an independent candidate contesting an election may appoint ‘one or more agents for each voting station or, if voting or counting at a voting station takes place in more than one room or separately enclosed area, one or more agents in respect of each room or area; and two agents for each venue where the proceedings provided for in Part 3 or 5 of Chapter 4 take place’.

The Chairperson said that the A-List reflected the deliberation of members. The A-List had been informed by the inputs of members and all the stakeholders.

Briefing by the Parliament Legal Service on the outstanding technical amendments on the Electoral Amendment Bill

Ms Telana Halley-Starkey, Parliamentary Legal Adviser, Constitutional and Legal Services Office (CLSO), briefed the Committee on the outstanding technical amendments to the Electoral Amendment Bill. On 14 July 2022, the CLSO and OCSLA met to finalise the A-list. The CLSO and OCSLA agreed that there remained a number of outstanding issues requiring decisions by the Committee that would feed into possible amendments to the current Bill.

These issues included the removal of the term ‘qualifications’ for independent candidates, the amendment of the term ‘political party’ to merely ‘party’, and whether independent candidates could contest multiple regions for a regional seat versus independent candidates contesting only one region in which they were resident, the payment of deposits by independent candidates and Schedule 1A (Calculation of seats, Ballot Papers and Vacancies).

Schedule 1A of the Bill

The Committee has decided that:

• The Bill should be amended to retain the existing allocation system as contained in the Electoral Act and expanded to include independent candidates, using the highest remainder.
• The Bill should be amended to reflect 3 ballot papers.
• The Bill should be amended to ensure that vacancies for independent candidates are filled by the next highest available candidate or political party.

The CLSO and OCSLA had considered Schedule 1A. However, the amendments as requested by the Committee are of a technical nature and are not within the expertise of legal services. The DHA and the IEC had provided the Committee with options regarding this amendment. The DHA and IEC are best placed to present these options. A resolution was required from the Committee regarding which option to incorporate into the Bill.

Discussion

The Chairperson said that these were the issues that the Committee had interacted on. The IEC would still need to come back to the Committee on Friday to present on the issues that Ms Halley-Starkey had raised in relation to Schedule 1A, which were more technical. He noted that it would be proper for the IEC to liaise with the Department. The Committee expected that presentation so that it was able to conclude the A-List. The Committee would consider what the two presentations had raised. The A-List could not be adopted today given the outstanding issues that had been raised. When the IEC presented on the options which were highlighted, the Committee would then take the decision to adopt the A-List. There were issues in Ms Halley-Starkey’s presentation on the wording that needed to be reflected in the Bill, which the Committee needed to reaffirm. He noted that there were deliberations in a previous Committee meeting on the matter. There was a deliberation at some point and an understanding that ‘qualifications’ needed to be changed to ‘requirements’. The Committee needed to change some of the captured words, for the process of concluding this matter. He noted that an outstanding issue was the multiple region participation. The Committee needed to take a decision on that matter. The Chairperson invited members to interact with the presentation and comment. After that, the Committee would wait for the IEC to present on Friday. The legal team would provide responses to the comments of members on the two presentations.

Mr K Pillay (ANC) discussed the first presentation of the State Law Adviser. He was happy with all of the capturing and submissions. It captured correctly the deliberations of the Committee. It placed each item and each clause where they should be. He was in full support of that. There was one part he wanted to raise. He was not sure how much of a difference it may have in terms of content and substance.

He discussed the section about deposits on page 4 of the A-List. It stated ‘such deposits may also be different to the deposits paid by registered parties’. Should the word ‘political’ be included? He was just asking because then it might be read as anyone who was registered for an election. He proposed that it did not change substantially whether ‘political parties’ should be included because the Bill was differentiating between independent candidates and political parties.

He discussed the second presentation of the Parliamentary Legal Adviser. He discussed the removal of ‘qualifications’. He supported this removal. During the public hearings, it was clear that some people thought it was referring to educational qualifications. The Committee needed to look at how it could make that easier to understand. He thought that ‘requirements’ sufficed. He was happy with the rest of it.

He discussed the residence requirement and the multiple regions. The Committee had many discussions and deliberations about whether an independent candidate could contest an election by just being a registered voter anywhere in South Africa. That part was clear. A voter could be registered anywhere to contest an election. He provided an example. If he lived in KZN and contested the elections in KZN and Limpopo and then got enough votes for a seat in Limpopo, did that mean he would leave KZN and be part of the legislature in Limpopo? He could not understand the logic of that. How would he leave the province he was in to then be part of a legislature in a province that he had no grounding in? That raised a challenge. He proposed that it remained that candidates would be able to contest in one region only. It would not be logical for any individual or even a political party. A political party would not take a candidate on their list that was in KZN and place them in the Western Cape Legislature. Where the candidate lived was where they occupied a seat in the legislature.

He discussed the part of the presentation that dealt with the NA. It should be clear that it does not relate to compensatory seats but only related to the first 200 seats. The Committee should remain with the discussions and proposals around where an independent candidate reached the highest number of seats. There was no need for that ranking in any event because legislatures in provinces would have different quotas in terms of the number of votes per seat. In that instance, there would not be a case where an independent candidate would have to choose. It should just remain where an independent candidate received the highest number of votes. He was happy with everything else. He did not want to delve into the discussions around Schedule 1A because the Committee was still going to receive a presentation by the IEC, perhaps then the Committee could unpack it. Otherwise, he was happy with everything that had been presented to the Committee. He hoped the Committee was able to finalise matters so that it was able to move forward.

The Chairperson discussed Ms Halley-Starkey’s presentation. The intention of the presentation was that the Committee must consider changing certain wording. The document indicated areas where Ms Halley-Starkey presented so that the Committee could make its own decision on that. It was not technical. He asked Ms Halley-Starkey if he had understood her correctly? If Mr Pillay said that he was happy with everything then he said that the wording that needed to be changed should be adopted. He asked Ms Halley-Starkey to come back and comment so that members were clearer on what they needed to do with the document.

Ms Halley-Starkey clarified the issues raised by Mr Pillay. When the legal team dealt with multiple regions it was speaking about a regional seat. By virtue of the example of Mr Pillay, if an independent candidate was to obtain a regional seat via Limpopo then the independent candidate would not be present in Limpopo, because that was the provincial legislature. The National Assembly seat was being dealt with. She responded to the question of the Chairperson. The legal team was presenting the Committee with various amendments that were of a technical nature. A decision needed to be made. As far as she recalled a decision had not been made regarding whether the Committee was for multiple regions or a single region.

The Chairperson said that he was not referring to that subject. Members were labouring on the subject now. What he was trying to bring to the attention of the Committee was that the document said that the Committee needed to consider changing ‘qualifications’ to ‘requirements’. He noted the highlights that were made in the presentation where the Committee needed to consider certain changes. Mr Pillay said that he was happy with everything that was there. He did not understand Ms Halley-Starkey correctly in terms of the areas which the Committee needed to consider changing. The Chairperson asked Ms Halley-Starkey to flight the presentation again.

Ms Halley-Starkey said that the legal team required solutions from the Committee regarding these issues. The first slide indicated the four issues. The legal team needed resolutions from the Committee if it could make those amendments.

The Chairperson said that he was trying to exhaust all the issues that the Committee needed to deal with.  

Ms M Molekwa (ANC) said that she was covered by Mr Pillay and the response of Ms Halley-Starkey on the presentation.

Mr A Roos (DA) discussed the A-List, clause 4 item 1. He wanted clarity on that. It spoke about the requirement of signatures. The Committee was very clear that it would need an ID number and a name for the IEC to verify that that person was on the voters’ roll. Perhaps there needed to be more clarity in that clause to say that it would not only be a signature. It would also be an ID number, a first name, and a last name, to allow for that verification. Unless he misunderstood what the definition of a signature was there. He proposed that the ID, name, and surname be added to those requirements.

He discussed the Parliamentary Legal Service presentation. He did not have a problem with the removal of ‘qualification’ as well as the proposal about ‘political party’ being changed to ‘party’.

He discussed the matter of independent candidates in multiple regions. The reason the Committee started going around on this issue was because it had received presentations about the constitutionality of the Bill. There was a concern raised, by the IEC, that not allowing independent candidates to stand in more than one region would perhaps lead to an issue of unconstitutionality. That was why there was an attempt to try and come to a middle ground. He imagined that by presenting these two options the Parliamentary Legal Service was saying that that option would be constitutional. That was what the Committee had discussed that members of political parties needed to stand in a specific region for the National Assembly and for some reason, independent candidates should be able to stand in multiple regions otherwise it might be ruled unconstitutional. If the Committee received the assurance that option two was constitutional, then it should go for option two. That also dealt with the aspect of fairness. Candidates in political parties were limited to stand in one region vis-à-vis independent candidates. That would bring in an element of fairness to say that independent candidates and political party candidates had the same opportunity to choose their region and stand there. He supported option two.

He discussed the deposits. He agreed with that proposed amendment.

Ms A Khanyile (DA) noted both presentations and appreciated them. She discussed the issue of the requirement and qualification. Qualification appeared to be an issue. Most of the public consultations raised their concerns about the issue. She proposed that ‘qualification’ be replaced with ‘criteria’. It was a decision that could be taken by the Committee. She discussed the issue of ‘political party’. She understood that in the previous meetings the Committee agreed that the word ‘party’ would suffice because independent candidates were contesting elections as parties. The Committee agreed that the word ‘party’ could be used. She proposed that the Committee resolve this today. She had been covered on the issue of participation in one region or multiple regions by Mr Roos.

Ms M Modise (ANC) discussed the issue of independent candidates contesting one region or multiple regions. If there was assurance that independent candidates contesting one region was constitutional, then she would support that option. She discussed the terms ‘political party’ and ‘party’. She was comfortable with ‘party’ as it had been suggested in the previous deliberations. She discussed Schedule 1A and the calculation of seats. She was not sure if there was no resolution. If she remembered correctly the Committee had resolved on the system that would be used to calculate the allocation of seats. She was not sure why this issue was coming back. Mr Pillay had sufficiently covered some of the other issues.

Ms Khanyile noted the issue of the deposits. The Committee had reached an agreement that independent candidates must pay a deposit that was going to be determined by the IEC. She suggested that the words ‘if any’ must be removed. The presenter indicated that if the words ‘if any’ were included then it meant the independent candidates may or may not pay a deposit. The Committee had taken a resolution that independent candidates must pay a deposit. She suggested that the words ‘if any’ must be removed. She noted the issue of ID numbers, names and surnames to be included when signatures were submitted. She supported Mr Roos on the verification processes. The IEC needed to verify that all of those people were appearing on the voters’ roll.

Mr Pillay agreed with the removal of the term ‘qualifications’ for independent candidates. He saw no harm with either ‘requirements’ or ‘criteria’. Having the word ‘requirements’ would be sufficient. He agreed on the amendment of the term ‘political party’ as indicated in the presentation. He discussed the issue of multiple regions. He supported option two, that it be one region. He emphasised that while the Committee had started this process to include independent candidates, it should not lose sight of the fact that there were political parties already contesting the space. Whatever the Committee did should not be seen as giving more preference to one over the other. Currently, political parties sent candidates to Parliament through a regional list. In this instance, they only appeared in one region and not in more than one. There were no multiple regions. If independent candidates were allowed to contest multiple regions it meant that the Committee would have to amend the current system, to allow political parties to do the same. That was going to create a conundrum. Both political parties and independent candidates need to be treated fairly. He supported option two, that independent candidates could only contest in one region. This should be the decision that the Committee took. He discussed the payment of deposits. He agreed that the words ‘if any’ should be removed. It was correctly captured through the A-List that was presented by Ms Govender. In Schedule 1A, he supported what Ms Modise had said. The Committee had agreed on the processes that needed to be followed. However, the Committee may raise it further in discussions when it received the presentation on Friday. He discussed the signatures. The Committee had categorically said that it had to be a registered voter who showed support for an independent candidate. Having to include that may cater to the submission by Mr Roos and Ms Khanyile about ID numbers and names. When one was a registered voter there were already details in terms of ID numbers and signatures. Electrically there would be a vetting process in terms of who registered and not. It had to be a registered voter that showed support. He discussed the A-List. All the amendments that were presented to the Committee he endorsed. The last thing for the Committee to receive was Schedule 1A and then the Committee would be done.

The Chairperson thanked the members for their consideration of the two presentations and the changes that were required. The members were agreeing and resolving on the submissions. On the contesting of regions, the Committee resolved on option two. The Committee agreed on the changing of ‘qualifications’ to ‘requirements’. The IEC would come back to brief the Committee on Schedule 1A. There were a few issues the Committee needed to resolve so that it was clearer when it was going to finalise the A-List. The Committee had deliberated on all of these issues, including the issue Ms Modise had raised. The Chairperson wanted the Parliamentary Legal Adviser and State Law Adviser to comment on matters that were arising from the meeting. Then he would go back to Mr Moepya if he had any comments. Then the Committee would wait for the final adoption of the A-List in the next meeting after all of the matters had been considered.

Ms L van der Merwe (IFP) supported the removal of ‘qualifications’ and using ‘requirements’ or ‘criteria’. She supported ‘political party’ to be amended to ‘party’. She supported removing the words ‘if any’ in relation to deposits. If option two in Ms Halley-Starkey’s presentation was constitutional then the Committee should support option two. Now that the Committee was at the business end of the deliberations. She repeated what she had said in the previous meeting. She held the view that asking independent candidates to garner approximately 20 000 signatures to be able to stand for elections was far too high. She would have wanted a lower number. It was a huge deal to climb to be able to be eligible for elections. The Committee should have considered removing the ‘cooling-off period’ because it would be very difficult for the IEC to monitor that, and it was not necessary. She wanted that on record for noting purposes. She agreed with members on the other points that were raised.

Ms Govender said that she had noted the input from the members. The legal team would be considering those and if there were any changes then they would revert back to the Committee. She wanted clarity from Mr Roos who asked about the amendment to clause 4. She asked him to rephrase and explain exactly what his concern was. At the moment it provided that one of the things that needed to be attached to a nomination was ‘a completed prescribed form, with electronically submitted signatures of voters, totaling at least fifty percent of the quota for a seat that was required for a seat in the previous elections’. For the sake of drafting, she asked that Mr Roos rephrase exactly what his concern was.

Mr Roos responded that the clause said ‘with electronically submitted signatures of voters’. He suggested that it should say ‘with electronically submitted signatures, ID numbers and full names of voters’. The IEC had indicated that it would need the ID numbers and that they would need to be submitted in an electronic format in order to take those ID numbers and verify them against the voters’ roll. If the requirement was taken as just 20 000 signatures on a page then how would that be verified against the voters’ roll because there were no signatures on the voters’ roll? 

Ms Govender said that that would be noted. The legal team would consider it and then revert to the Committee.

Ms Halley-Starkey said that she noted the question about the constitutionality of option two. Adv Njikela would respond to that question. She did not think that there were any other questions.

Ms Daksha Kassan, Parliamentary Legal Advisor, CLSO, said that there was a consensus on the issues that were required. The legal team could now supplement the A-List. The terms ‘qualifications’, ‘political’ would be removed. She discussed the issue of multiple regions versus regional seats. What the legal team wanted from this meeting was a decision on which option to go with. The legal team had not looked into its constitutionality. If there was a question around constitutionality then the legal team would engage with the Department to get an explanation of what the legitimate government purpose was in restricting independent candidates to contest one seat. That was something for the legal team to consider with the Department. If there was a constitutional concern, then that matter would be brought back to the Committee. Otherwise, the other matters had been covered.

Adv Siviwe Njikela, Senior Parliamentary Legal Adviser, CLSO, said that there was an issue around the question of multiple regions. A legal question was raised about whether it would be constitutional for an independent candidate to be restricted from contesting nationally. This was a highly policy-centric issue that the Department needed to speak to. The legal team would have to consider and advise the Committee on the matter once it received the policy answer from the Department. At the moment, the legal team was considering it. Section 19 of the Constitution entitled every citizen to stand for elections. Whether the limitation that was being placed on that was constitutional or lawful was a matter that was debatable. The Committee needed to be able to understand why it was necessary and how it could be justified. That was the explanation that the legal team was looking for from the Department. The Parliamentary Legal Services could then take it from there to see if it would pass the test of a reasonable limitation of a right. The legal services could only apply themselves to that once it heard the Department’s thoughts on that issue.

The Chairperson said that the legal team may need to have a discussion with the Department. He asked the legal team to ascertain that clarity by Friday, for the members. It would assist the Committee for Friday so that it would be able to have a collective understanding. If there were differences, then the Committee would be able to deal with that and comment.

Ms Halley-Starkey said that that would be correct.

Adv Moses Malakate, Legal Advisor, Department of Home Affairs, responded to the concerns raised by Adv Njikela. The Chairperson’s intervention relating to how it needed to be dealt with by the Department was proper. The Department would liaise with the legal team. The Department would provide their responses to Adv Njikela. If the Chairperson allowed, then the Department could also provide responses to the questions that had been raised in relation to multiple regions. There was also something the Department had noted in relation to the A-List. The Department would engage with the legal teams in relation to the A-List. It had noted certain issues that had not been taken care of. It might need to come back to the Committee with those issues that the Department had noted. The Department had not had an opportunity to talk to the legal teams in relation to the A-List. He asked for the Chairperson to allow that and provide the Department with an opportunity to engage with the two legal teams. The Department could then provide a revised A-List on Friday.

The Chairperson replied that this was a proper intervention. He wanted the Committee to affirm this proposal and understanding as a process before the close of the meeting so that it became a decision of the Committee.

The Chairperson asked Mr Moepya if there was any other matter that he wanted to raise.

Mr Moepya said that there were a few issues that the IEC wanted to provide feedback to the Committee on. He discussed clause 4 of the A-List. The IEC would need ID numbers of the people supporting an individual candidate. The IEC would set up a system where those ID numbers were captured. The IEC would recommend that the signatures, which were necessary, and the names of the people be kept by independent candidates in the event that they were needed. This was the current practice in local government for independent candidates and political parties. The IEC was happy to talk to Parliamentary Legal Services or the Office of the Chief State Law Advisor, on the matter before Friday.

In clause 4, Mr Pillay raised the issue of registered parties or political parties. He thought the issue was also arising from the context of the legal services. If one noted the definition of a political party in the Act, it was defined as a registered party. The draft in clause 6, on page 4, was technically correct. Whether the Committee adopted parties to mean registered parties or political parties was a matter that the Committee could reflect on, and Parliamentary Legal Services may advise on it. He requested that the IEC have an opportunity to engage with the Parliamentary Legal Services and Office of the Chief State Law Advisor on the matter of the new clauses. He noted the insertion of the new clause on agents for independent candidates. There were two alternatives that the IEC would like to consider with them. The IEC wanted to come back to the Committee with those two issues considered. These issues would affect clause 1. He noted several residual issues. Ms Khanyile and Mr Pillay raised discomfort in relation to the word ‘qualification’ in the context of candidates. He understood that this discomfort was picked up from the public process that was undertaken. It needed to be noted that qualification in terms of a candidate or a member of a legislature flowed directly from sections 47 and 106 of the Constitution. It set out those things as qualifications. That was exactly what the IEC was referring to. If the Committee considered changing that to ‘criteria’ or something else then there may be inconsonance with what was in the Constitution. He raised the issue concerning the ‘cooling-off period’. The concerns raised by the Department’s senior counsel were very weighty. Ms van der Merwe had raised those issues again today. The IEC wanted the Committee to know that it had no way to enforce the ‘cooling-off period’ because membership of political parties was not in the public domain. The IEC did not have information on who belonged to political parties. He discussed the contribution the IEC had been requested to make in relation to Schedule 1A. The IEC pointed out there may be other residual issues arising out of it when the IEC raised them on Friday. The IEC would point those out as may be necessary.

The Chairperson said that the legal teams, the Department, and the IEC needed to interact on technical and legal issues during the week. Then a presentation would be made on Friday. There may be other issues that the IEC may want to advance, which may be outside the legal parameters. The IEC and the Department would make a submission to the Committee. There needed to be that engagement between the stakeholders during the week. There were other issues flagged, including issues the IEC raised, which members would be given time to reflect on. The Committee needed to look at section 46 of the Constitution. The IEC would come back to the Committee and present on those issues. The Committee was at a stage where it had noted all the issues from the presentation. The Committee would resolve on some of the issues so that it was able to finalise the A-List on Friday. The Chairperson asked the members if they were comfortable with that way forward?

Mr Pillay said that he supported the summary and the way forward.

Ms Molekwa said that she supported the way forward.

Mr Roos said that he supported the way forward.

Ms Khanyile said that she supported the way forward.

Ms Modise said that she supported the way forward.

The Chairperson said that would be the Committee’s approach for the next meeting. The Chairperson thanked all those in attendance and the stakeholders involved in the meeting.

The meeting was adjourned.