Electoral Amendment Bill: OCSLA, DHA & IEC on proposed amendments
22 July 2022
Chairperson: Mr M Chabane (ANC)
Tracking the Electoral Reform Legislation in Parliament
The Office of the Chief State Law Advisor briefed the Portfolio Committee on Home Affairs on the revised A-List based on the Committee decision from the previous meeting.
The IEC briefed the Committee on proposals to Schedule 1A. The presentation discussed the system of representation in the National Assembly and provincial legislatures. The presentation discussed the allocation system for regional and compensatory seats. The presentation also discussed the number of ballot papers that would be produced and how vacancies would be filled with respect to a seat allocated to an independent candidate.
The legal counsel of the Department of Home Affairs briefed the Committee on the legal opinion of Senior Counsel. The legal opinion dealt with two issues. The first issue was whether it was constitutionally permissible for independent candidates to only contest in one region, as opposed to a number of regions, in elections for the National Assembly. The second issue related to the potential constitutional weakness of the proposal discussed by the Committee to require independent candidates to demonstrate the support of registered voters equal to at least 50% of the quota for a seat in the previous election, as an eligibility requirement to contest an election.
The IEC briefed the Committee on residual matters on the Electoral Amendment Bill. Three issues were discussed. The first was the number of signatures for independent candidates. The second was candidate nomination matters. The third issue was the number of agents for independent candidates.
The members noted that there were three items that were outstanding. The first was the matter of independent candidates contesting in a single region or multiple regions. The second concerned signatures. The third was the ‘cooling-off period’. On the matter of the percentage of signatures required a member of the IFP appealed to the Committee that it should look at whether the quota was fair. In the presentation, it was noted that 20% might be a more reasonable percentage of signatures to obtain. It was something the Committee needed to look at very seriously. A member also noted that the ‘cooling-off period’ was not something that the Committee nor the IEC could monitor. The issue of constitutionality was also raised around this matter. The Committee needed to reach a consensus on these matters. A member of the DA noted that the Committee had already agreed in the previous meeting about independent candidates contesting multiple regions. The Committee had debated the matter and come to the agreement that independent candidates should stand in one region. The Committee had been given the assurance that this was constitutionally sound. It was therefore not necessary for the Committee to debate and present the arguments again. It was noted that the members had received the documents late last night. The members needed an opportunity to go and consult with their parties on the implications of some of the changes presented in the meeting. The Committee resolved that members would go back and reconsider the issues raised as well as the residual issues. When the members came back they would then present their views so that the process of the A-List was completed. The Committee needed to work with the necessary urgency to make sure it was within the timeframe to complete this process.
The Chairperson welcomed all those in attendance at the meeting. The Committee had now interacted with all the issues as the A-List was presented in the last meeting. The Committee appreciated the capturing of its deliberations. The understanding was that almost all of the issues had been dealt with. However, there were issues deferred, in particular, the Schedule 1A matter. The IEC was requested to come back and brief the Committee. After the deliberations of all the stakeholders, the Committee may not adopt the A-List today. The stakeholders may need to go back, re-work and finalise the A-List so that the Committee adopted all the issues that had found expression in the deliberations. Caution was important. It may not be appreciated that new issues were brought up during the meeting. The Committee had exhausted some of the issues and clarity was sort on some of the issues that the Committee may need to resolve on. He raised this for both the members and the stakeholders. It would not take long to deal with the issues that the stakeholders would present. The stakeholders needed to be specific in dealing with the issues that the Committee had requested for legal advice. The Committee was at the stage where at most it dealt with technical issues that had a bearing on implementation by the IEC.
The Committee Secretary presented the agenda
Briefing by the State Law Advisers on the A-List on the Committee decisions on 19 July
Ms Sarah Govender, Senior State Law Advisor, Office of the Chief State Law Advisor, briefed the Committee on the revised A-List based on the Committee’s decision at its previous meeting.
Briefing by the IEC on the proposals to Schedule 1A
Mr Masego Sheburi, Deputy CEO: Electoral Operations, IEC, briefed the Committee on proposals to Schedule 1A. The presentation discussed the system of representation in the National Assembly and provincial legislatures. The presentation discussed the allocation system for regional and compensatory seats. The presentation also discussed the number of ballot papers that would be produced and how vacancies would be filled with respect to a seat allocated to an independent candidate.
The Commission must determine a fixed number of seats reserved for each region for every election of the National Assembly, taking into account available scientifically based data in respect of voters and representations by interested parties.
The Commission must produce separate ballot papers for each regional election of Members of the National Assembly, the compensatory seats of members to the National Assembly, and of members of each provincial legislature. The ballot paper to be used in each region for the election of Members of the National Assembly shall include only parties and independent candidates standing in that region for election to the National Assembly. Similarly, the ballot for a provincial legislature shall include the names of parties and independent candidates standing for elections in that province.
Filling of vacancies
In the event of a vacancy in a region or provincial legislature with respect to a seat allocated to an independent candidate will not be filled until the next elections. The Chief Electoral Officer must in writing allocate the seat by recalculating the result.
Briefing by the Department of Home Affairs on the legal opinion of Senior Counsel on the Electoral Bill
Adv Mitchell De Beer, Legal Counsel, DHA, briefed the Committee on the legal opinion of Senior Counsel on the Electoral Amendment Bill. The legal opinion dealt with two issues. The first issue was whether it was constitutionally permissible for independent candidates to only contest in one region, as opposed to a number of regions, in elections for the National Assembly. The legal opinion stated that both options would be constitutionally permissible. Therefore, this was a policy choice for Parliament to make. The second issue related to the potential constitutional weakness of the proposal discussed by the Committee to require independent candidates to demonstrate the support of registered voters equal to at least 50% of the quota for a seat in the previous election, as an eligibility requirement to contest an election. The legal opinion highlighted that such a high percentage risked being found unconstitutional if the requirement was challenged in court. A lower threshold of the previous quota, of no more than 20%, would be more likely to pass constitutional muster.
The Chairperson thanked the stakeholders for their presentations on issues that the members needed to resolve. The IEC had raised specific issues on Schedule 1A. He noted that the issues of contesting multiple regions and signatures were coming back again. These were the issues that needed the Members’ attention. The Committee was to deal with the three presentations and then there would be a proposal on how it would finalise them.
Mr K Pillay (ANC) discussed the A-List that was presented first. There were no challenges. Everything that was there was correctly captured. He endorsed the A-List. He discussed the two presentations the Committee received after the A-List. He noted that the State Law Adviser had said that both options were permissible and may be accepted. In view of that, he could not see the Committee having much of a debate on it. If it was both permissible, then the Committee should proceed with the decision that had been made. He wanted to simplify the process of multiple and single regions. The best way to deal with it was if he referred to the ballots and the current form of how Members were elected to a particular legislature. There was the national-to-national. There was the province-to-national. There was the province-to-province. In the province-to-province that would be an election for a provincial legislature. It needed to be that a candidate was a resident of that particular province to be able to contest in that legislature and then to be able to acquire a seat in that. That would be in ballot three. He discussed the province-to-national. This was ballot two. His view was that a candidate should only be contesting in a particular region that they were in to be able to acquire a seat in the National Assembly. This was permissible. He saw no harm in the Committee continuing with its position. If for some reason the Committee had a divergence of views and wanted to accept multiple regions, then it was difficult for him to accept that. Imagine if an independent candidate who lived in KZN did not get enough quota to claim a seat in KZN but got enough in Gauteng. The candidate would then have gotten to the National Assembly from KZN but on a Gauteng list. He was trying to understand the logic of that and whether that was disadvantaging other provinces. He supported the view of the Committee from the beginning that in terms of national-to-national compensatory seats, that part was only for political parties. There was not going to be any divergence of views because that had been agreed to from the beginning. He was interested to hear the views of other members and the stakeholders. It boiled down to one argument and that was occupying one seat. He had been in a debate with one of the leaders of the independents. Independent candidates could only occupy one seat. Whether it was multiple regions or one region, it was only going to be one seat that an independent candidate could obtain and occupy. It did not make any logical sense. On the other hand, it would not give an independent candidate more than one seat. He discussed the filling of vacancies. The Committee had already agreed that it should be allocated to the next party or independent candidate, in terms of those who had the highest surplus votes.
Ms L van der Merwe (IFP) discussed the issue of signatures. In previous meetings, she had expressed the view that while the Committee was in full support that independent candidates must show a level of support they were receiving from the electorate to stand in the elections, that the quota needed to obtain a seat, around 22 000 signatures, was not justifiable. To impose that type of quota on an independent candidate was not fair. It would impede their participation in the elections. The Committee had often said that the process before it was to create an enabling environment for independent candidates to contest fairly in these elections. She appealed to the Committee that it look at whether the quota was fair. She had previously proposed that the Committee look at between 10 to 15% of the quota. She heard in the presentation that 20% might be a more reasonable number of signatures to obtain. It was something the Committee needed to look at very seriously. With the requirement of having to get these signatures electronically, she worried about how possible it was for people in areas that did not have access to the internet or Wi-Fi readily. The Committee needed to take that into consideration. She raised the issue of the ‘cooling-off period’. She had mentioned in the previous meeting that it was not something that the Committee nor the IEC could monitor. The issue of constitutionality was also raised around this matter. She was convinced by the argument that the IEC had made around the issue of multiple regions versus contesting in one region. As much as she heard the argument of Mr Pillay, she thought the crux of the issue was whether the Committee was being fair or not. This was a national election. Independent candidates would be contesting a seat in the National Assembly. Therefore, it would not be fair to restrict an independent candidate to only contest for that seat in one region. The proposal that suggested that independent candidates should be able to contest multiple regions was a fair proposal. She hoped the Committee could reach a consensus on that matter, that it would look again at the issue of signatures and whether the 50% was really a fair formula or not. She held the view that it was not a fair formula.
Ms M Molekwa (ANC) said that Mr Pillay and Ms van der Merwe had covered her. She wanted more clarity on the issue of signatures. She did not hear well on the issue of signatures when it was presented. She noted that the proposal of the Committee on the 50% requirement for signatures might be unconstitutional. She wanted to check with the legal counsel what would be the proposal from their side. If it was not going to be contained in the Bill it would create more challenges, especially on the IEC side. It would also create a lot of work with regard to the printing of ballot papers. The issue of the signatures should also be contained so that the Committee limited the work of the ballot papers being printed. She wanted the proposal of legal counsel on what needed to be done with the issue of signatures. If everyone wanted to stand as an independent candidate, then there would be more than 100 pages of ballot papers being printed.
Mr A Roos (DA) said that the Members had received the documents late last night. The Members needed an opportunity to consult with their parties on the implications of some of the changes. For example, with Schedule 1A, the Committee had agreed that it would keep the existing seat allocation system and that there would be one round. Now it seemed that there would be two rounds and two different quotas, where votes were discarded. The Committee had already agreed in the last session about contesting multiple regions. The Committee had debated the matter and put forward all the different considerations. The Committee had come to the agreement that independent candidates would stand in a region, provided that it was constitutionally sound and correct. The Committee had been given that assurance. He did not know if the Committee needed to debate that again and present the arguments again. It had been agreed to by the Committee. It had been confirmed as fine from a constitutional point of view.
He discussed the signature requirement. There had been one argument with regard to the signatures that were from Mr Pillay. Mr Pillay had used the example of the ward and needing 50 signatures from a ward. Mr Pillay extrapolated that to the province and noted that it would be a much higher number than the 50%. He acknowledged the arguments that maybe 50% was really too high and that it was counter-productive. The DA was willing to re-look at that. It would be helpful if the Committee limited the requirement to non-represented candidates. If an independent candidate was going to stand and get these signatures, once they were elected they would have shown that they were a serious candidate. In the next election, they should not need to get those signatures again. That would be helpful for the IEC in reducing the load of processing and verifying all of the signatures. He discussed the ‘cooling-off period’. There were a lot of challenges in terms of how this would be monitored. This requirement was to prevent a party candidate who did not make it on their list from then going and standing as an independent candidate. If a party candidate made that decision they would have to get quite a number of signatures to make that happen. There was almost a situation of a natural ‘cooling-off period’ because party lists have to be in at a certain time and that included independent candidates. Anyone who was making that decision would make it after the lists had been finalised. It was a provision that did not really serve its purpose. He discussed regional seats. The IEC presentation said that ‘the Commission must determine a fixed number of seats reserved for each region for every election of the National Assembly, taking into account available scientifically based data in respect of voters and representations by interested parties’. He wanted clarity on what this meant. It seemed a bit vague. The IEC would surely look at the number of registered voters as something that was clear in terms of looking at the proportionality of seats across the different regions. The danger here was that if there was undercounting in certain areas and over-counting in certain areas then it could claim that that was scientifically based. However, someone else would argue that it was not scientifically based because the process was flawed. Then there would be an argument about what was scientifically based and what the quota should be. He wanted clarification on what the statement meant. It should be a lot clearer. It should be the number of registered voters or the population so that this did not have a wide scope for interpretation. In the discussion of constitutionality, there was a call for electoral reform. It had been discussed many times in the Committee that in this Bill the Committee needed to satisfy the Constitutional Court judgement to allow independent candidates to participate in the elections. The Committee needed to do that urgently before the next national election. There was clearly a call for electoral reform. One of the ways the Committee could cover itself from the risk of litigation was to propose that this system be an interim system that would then be revised after the election. After the election, there should be a process of electoral reform where the Committee took into account public participation, as had been proposed for many years. The Motlanthe Report had suggested electoral reform and the Zondo Commission had also proposed this. It was something that was necessary. Maybe it could be added to the Bill that this was an interim measure to satisfy the requirement to cater for independent candidates and that the overall reform would be done after the election. It would go a long way to minimising the risk of getting stuck in courts and avoiding a constitutional crisis closer to the election.
Ms A Khanyile (DA) said that she had been covered by Mr Roos. There were a few issues that she wanted to reiterate. She discussed seat allocation. The Committee had discussed it. She was under the impression that the Committee had exhausted the matter last week. The Committee indicated in the last meeting how the seat was going to be allocated that there was only going to be one round in counting using the highest surplus. She discussed the matter of independent candidates submitting signatures. The Committee needed to find a way of finalising it today. One of the reasons why the percentage was proposed previously was because the Committee wanted the independent candidates to demonstrate that they had support. It was also intended to protect the IEC as well in terms of printing a very long ballot and then finding out that independent candidates did not have support. She noted the signature criteria and the deposits. She supported Mr Roos that when the Bill is finalised it should be indicated that it was an interim measure and that it would be revised after the 2024 election.
The Chairperson said that there was one point that he wanted the members to park for now. It was an important matter of national discourse so the Committee did not de-focus on the key issues that it needed to deal with. The Committee would deal with the matter of electoral reform post-national elections, once it had concluded all the matters that needed to go into the A-List. He wanted members to persuade each other. The Committee was going to park those matters and deal with them once it had concluded on all the matters which were before it. The Committee would agree that it should not enter into that space now when it was to finalise these key issues. The Committee was at the tail end of finalising these issues. The Committee would reflect on the matter. It was an important matter that all stakeholders in society, the Committee, and Parliament needed to pay attention to. It was a necessary point, but he wanted to pause discussions on that matter. The understanding of the Committee was that the A-List represented the issues of the State Law Advisers and the outstanding issues. Members affirmed the decision that the Committee had taken in relation to the participation of independent candidates. There was confirmation that the Committee was not working outside the Constitution on the decision it had taken. The IEC and the legal team would impress on that. There was a submission that the Committee may need to reconsider, the requirement of signatures to demonstrate the participation of independent candidates. In the last meeting, the Committee had endorsed the 50%, which was informed by the presentation of the IEC. The IEC had given various categories of percentages that the Committee may consider. The Committee did consider the 50%. There was a re-thinking around the participation of the independent candidates. One of the principles that the Committee had maintained in its deliberations was fair participation of all those who were interested to participate in the election. The Committee had exhausted that point. The re-thinking of the submission of the legal advisers was a matter that the Committee may need to deliberate on. He thought that the Committee would impress on the percentages and look at what the legal team was raising so that there was a consensus if the Committee was reconsidering the percentage or not. The point raised by Mr Roos was fair if the Committee wanted an informed deliberation and guided process. There were other technical issues where the members would seek consultation. The report was sent late but that did not mean that the issues had not been deliberated on. Because of the new issues coming in, there was a need for further consultation. It would be fair to look at how the Committee would manage that so that members went back to consult with their legal teams. Thorough preparation needed to be done. There was a need to go back and deal with that point. He noted that there were issues that the Committee needed to resolve, including the ‘cooling-off period’. The IEC and Adv De Beer noted their positions on that matter. Those were some of the issues that the Committee may need to look at. He agreed that there was a need to go back and consult on certain areas. He wanted the State Law Adviser, Parliamentary Legal Adviser, IEC, and the Department to respond to the comments that were raised. Members needed to isolate issues for further consultation. The Committee would then resolve on issues because there were new issues of technical matters. The Committee would receive responses from the stakeholders on the comments raised by members. Then the members would comment on the issues that the Committee needed to deal with, resolve, and which matters required further consultation as Mr Roos had raised. The Chairperson asked the members if they agreed to the process?
Mr Pillay said that he supported Mr Roos. He agreed that there was a need for further consultation, particularly because the Committee had received the report rather late. While the Committee had been able to deliberate, it was important that members were given an opportunity to consult so that members could unpack it. Then the members could come back in terms of their positions and a decision. There were three items. The one was single or multiple regions. The second was signatures. The third was the ‘cooling-off period’. He was not going to venture into any of those discussions particularly because the Committee accepted that it allowed for further consultation. The Committee could then deliberate on that and then come back firmly on these three positions. He proposed that the members be allowed the space to consult and come back on these three issues. He agreed that the Committee was going to look at the signature requirements in terms of the 50% and perhaps re-look at it. The Committee was open to that discussion in light of what had been discussed today. He stressed the point that if one were to take 50 signatures per ward, the National Assembly was the entire country for the constituency, and multiplied by the number of wards in the country then clearly it was going to be higher than that. The Committee needed to reach a point where it agreed on what was going to be fair, reasonable, and justifiable in terms of the requirements. For him, there were three issues as mentioned. Given the opportunity to consult further the members could then come back with a proper position.
Ms van der Merwe agreed with Mr Pillay and Mr Roos. The Members needed to be allowed to consult their caucuses and parties. She would go back and consult on the issue of multiple regions versus a single region. On the other two issues of the ‘cooling-off period’ and the signatures she had given her viewpoint on both issues. She held the view firmly that the Committee should do away with the ‘cooling-off period’ as well as look at reducing the percentage of signatures. Those were the positions of the IFP. The Committee was moving toward the finalisation of all these issues. She was glad that there was a reconsideration of some of the issues that had been highlighted.
Ms Molekwa said that she was covered by the previous speakers.
Mr Roos said that he agreed with the process. It was important that the Committee received clarity on the regional seats and what the scientific formula meant so that when he took it back he would have clarity on that.
Ms Khanyile said that she was covered by Mr Roos.
Ms Modise said that she was comfortable with the process outlined by the Chairperson. She cautioned the Committee that it might fall short of time. While the members did consultations she requested that the members did not take too long to do consultations so that they could come back and finalise the issues. She was comfortable with the process and accepted that the members needed to do consultations.
The Chairperson said that the consultation that was sought as a process was to re-look at what both the IEC and the legal counsel of the Department had presented. The Committee could not ignore what had been presented. That needed to be the understanding. These issues had been deliberated on and the Committee had resolved and adopted them. These matters were with the Committee. He invited the stakeholders to comment.
Mr Mosotho Moepya, Commissioner, IEC, said that the deliberations had been very helpful. He noted that there were two key issues that arose that the IEC needed to respond to. One issue was raised by Mr Roos and was in relation to what the IEC meant by scientifically-based data. The intention of the clause was so that the quota used would never be discretionary. It had to be hinged on something that was publicly known. The IEC was saying that it needed to use that information which was objective to get to a determination. This had not been challenged in the past, but it may be challenged in the future. He welcomed the question by Mr Roos on what that clause meant. It simply meant that the IEC did not sit in its private corner and decided that that needed to be the number. The IEC would put a number that was in the public and that number would be very objective. He noted the question of Ms Khanyile on the use of one round as opposed to what had been presented by the IEC. He asked his team to deal with the outstanding issues.
Mr Sy Mamabolo, Chief Electoral Officer, IEC, said that the distribution of 200 seats between regions took into account objective data in respect of votes. It was not in respect of any other factor. It was in respect of people who were on the voters roll. One was only a voter once they were registered and eligible to vote. That phrasing meant using objective figures from the voters roll to make that distribution as well as inviting any representations by any person in society. The IEC did not make up the figures in the dark corners. The IEC did so publicly and invited submissions people may wish to make. The IEC used objective data, meaning people who were on the voters roll. He discussed the one round of calculations. What the IEC presented in Schedule 1A, which was an affirmation of the decision of the Committee, was a single round allocation. It was not a two-round allocation. A quota was worked out in each region. That quota was applied to the total valid votes per party. Seats were given to parties based on their total valid votes. It may be that having done so there were surplus seats that were not allocated. The IEC then used the highest remainders to do a further allocation. That was not a second round. That was perhaps where the confusion was. It was a further distribution of surpluses. A second round would have meant having a different quota to deal with the surpluses. That was not the proposal. The IEC would use the highest remainder and allocate seats so that there were no unfilled seats. It was a single-round calculation. Similarly, when the seats of the compensatory component were distributed, the IEC would have to determine a quota and apply that quota to the total valid votes that each party procured in an election. Then do the distribution. If there were any surpluses, then the Committee had agreed that the highest remainder would be used to a maximum of five seats. From then the average number of voters per seat would be used, if beyond the five there were still surplus seats. Even in that scenario, it was a single-round calculation. The quota was not determined twice. A single quota was being determined and applying it. If there was any surplus that remained the highest remainder would then be used to a maximum of five seats. Thereafter, apply the average number of votes per seat. It was important that the IEC cleared those issues. He was alive to the fact that the Committee had asked members to go consult on three issues that had been identified. The IEC would await that outcome and adjust Schedule 1 to accord with whatever position was finally taken by the Committee. Despite the three issues identified there were one or two residual issues on the IEC’s list of residual issues that the IEC wanted to bring to the attention of the Committee. The Committee could direct what it wished to do should it wish to entertain those residual issues.
Adv De Beer responded to the question of Ms Molekwa whether the legal counsel was suggesting throwing out the whole signature requirement or not. That was not the legal counsel’s proposal. In principle, it was perfectly constitutionally permissible to have a signature requirement. The legal counsel’s concern was that there was a line where a signature requirement may be too prohibitive. If it was too prohibitive it might be an unjustifiable violation of the right to stand as an independent candidate. He discussed the 50 signatures for the local government elections. He looked up his local ward and voting district on the IEC’s website. In the last local government elections in his voting district, there were about 3300 votes. That was only in his voting district. In the whole ward, there were more than 16 000 votes. 50 votes as a proportion of that was a very small percentage. He was not sure if using that analogy, of scaling it up, was the right analogy. He accepted that in the context of national and provincial elections where there were much larger constituencies would have a larger quota to get a seat would need more signatures.
Ms Govender said that the main outstanding issues were the decision regarding the contestation of the single or multiple regions, the ‘cooling-off period’, and the quota system. Originally it was 50% but now there seemed to be some differing views. The fourth issue was a suggestion made by Mr Roos regarding the inclusion of the IDs, full names, and details of those supporting a particular independent candidate nomination. Even though there was a proposal made in respect of that there was no decision given. The legal team had looked at the Local Government: Municipal Electoral Act and those details of supporters for a ward candidate in that Act, those details Mr Roos said he would like to be submitted were contained in the annexure to the regulations. At this stage it did not pose any constitutional concern should the Committee wish to include those details in the Bill itself. Those were the main issues that the legal team required instructions from the Committee on, including in respect of concluding the A-List.
Adv Siviwe Njikela, Senior Parliamentary Legal Adviser, CLSO, said that Ms Govender covered most of the issues that he wanted to speak to. He agreed with all of the issues that had been identified. He thought that there was already a consensus on most of the issues. With regard to signatures, the only thing that was outstanding was the percentage that was to be used. The ‘cooling-off period’ had seemed to be a decision, but it seemed to be back on the table now. The Committee was entitled to reconsider any decision that may have been taken. The IEC may have raised some practical issues that the Committee may need to consider in respect of the ‘cooling-off period’. He noted that the documents were circulated late yesterday. Most would not have had the opportunity to apply themselves to the documents. He appreciated the direction of the Committee that all the stakeholders would need time to consider Schedule 1A, which was being proposed by the IEC. The legal team would need time to consider it and what the implications were. The legal team may need to consider the legal opinion that Adv De Beer delivered. He had not had the time to analyse in detail the issues of constitutionality. There was some kind of agreement in many areas in terms of legal and constitutional issues. The legal team just needed time to consider those documents properly as they were received late. The legal team had raised the matter of all the outstanding issues on which it needed a decision by the Committee before the completion of the A-List and the B-Version of the Bill. The legal team was anxious to get this because now and then there was pressure for things to be done at very short notice. Given the nature and complexity of the issues that were being raised, short notices were not helpful for anybody. It needed to be done right and it needed to be done correctly so that the issues were not dealt with later through litigation.
Ms Daksha Kassan, Parliamentary Legal Advisor, CLSO, said that the four issues that were highlighted were definitely outstanding, as was summarised by Adv Njikela and Ms Govender. In the meeting yesterday, the IEC also made certain proposals regarding the provision regarding agents. She was not sure if that was still something that Mr Sheburi was going to raise. She wanted to raise it here so that all the issues that were outstanding were considered so that decisions could be taken at one time on all of them and the A-List could then be finalised.
The Chairperson said that the issues which were highlighted the Committee had already considered. What was coming out of this meeting was informed by the presentation tabled by the IEC and the Department that needed the Committee to consult. The Committee had taken a decision on signatures. The presentation today said that the Committee may need to relook at the percentage. The Committee needed to build an understanding that it had already taken a decision on all of these issues and that what was coming out was for the Committee to go back again and reconsider some of the issues. He wanted the IEC to deal with the residual issues so that members noted the issues raised. The Committee could then resolve a process, come back and resolve all the issues.
Mr Moepya said that a number of the residual issues that the IEC had identified had been dealt with. The outstanding issues related to candidate nomination and the number of agents. He invited Mr Sheburi to brief the Committee on the residual matters.
Briefing by the IEC on residual matters on the Electoral Amendment Bill
Mr Sheburi briefed the Committee on residual matters on the Electoral Amendment Bill. Three issues were discussed. The first was the number of signatures for independent candidates. The second was candidate nomination matters. The third issue was the number of agents for independent candidates.
The number of signatures for independent candidates
The IEC proposed a requirement for independent candidates to capture the ID numbers of voters to ensure that these voters are correctly registered and entitled to support the candidature of independent candidates to contest the relevant elections. The IEC portal will generate confirmation that the candidature has been supported by the prescribed number of voters. The Portfolio Committee had adopted the proposal that the number of signatures must be at least 50% of the quota for a seat. The IEC submits that numerically, this translates to a high number of registered voters who must support the candidature of Independent Candidates. This can be construed as unfair discrimination against independent candidates as political parties were not currently burdened with this numerical quota requirement for purposes of registering a party at any level.
Mr Roos said that he wanted clarity on his question about there being for practical purposes two rounds. He went to item 5(e)(a) of the IEC’s presentation. It discussed regional seats and the allocation of seats. It stated that ‘where an independent candidate’s award exceeds one seat, the candidate is awarded one seat as his or her provisional allocation. The surplus of seats yielded must be dealt with in terms of item 7’. Item 7(2)(a) said that ‘In the event of any forfeiture of seats the provisional allocation of seats in respect of any particular region must be recalculated as follows’. Then it said that ‘the party or independent candidate forfeiting seats must be disregarded in such recalculation’. In 7(2)(b) it referred to ‘an amended quota of votes per seat must be determined in respect of such region by dividing the total number of votes cast in the region, minus the number of votes cast in such region in favour of the person whose voters were discarded’. He could only interpret that as the IEC forfeiting those extra seats and doing a recalculation based on an amended quota to fill the rest of the seats. To his understanding, this was a second round. Independent candidates were allocated one seat. To fill in the remainder of the seats that were there the IEC should go down the list in terms of the highest remainders. To his mind, the IEC was suggesting another round because there was another quota. It was not one round.
Mr Pillay said he supported the view that the members should go for further consultation because then they would be able to deliberate further. Then the members would be able to submit.
The Chairperson said that Mr Mamabolo had sufficiently responded to what Mr Roos had raised. The Committee had already considered a decision on that. He invited Mr Mamabolo to comment again to help Mr Roos’ further consultation.
Mr Mamabolo said that Mr Roos’ observation was correct, but he did not think that amounted to two rounds. Item 7 dealt with scenarios that only arose in instances where there were insufficient candidates on a party list or in a situation where an independent candidate secured enough votes in the different regions to acquire more than one seat. In those circumstances by design, it was necessary to recalculate for future calculation. One could not use the previous quota. Those votes needed to be removed from the new calculation and establish a new quota. That only arose in a situation where there was a forfeiture of seats because a party did not submit sufficient candidates or a forfeiture by an independent candidate because they had won multiple seats. Item 7 provided for those exceptional circumstances. In the ordinary course, a quota would be established and applied to all votes cast for independent candidates as well as parties, and in one round allocate. That was what the IEC meant. The language of rounds came from the proposition in the Bill which was to do the first round for independent candidates only. Do the second round for independent candidates only. Then only in the third round do a separate calculation for political parties. The Committee persuaded to not proceed with that proposition in the Bill but to rather put everybody in one pot and generate a quota which would apply to both independent candidates and political parties. Then the highest remainder methodology would be used. That remained and that was the single round of calculation. Item 7 dealt with exceptional circumstances of forfeiture of both political parties on account of submitting a list with insufficient candidates or where an independent secured more than one seat across the regions. The principle of a single round and a single quota at the beginning was maintained.
The Chairperson said that the Committee had identified issues on which it had taken decision but required further consultation, including the legal service, with regard to Schedule 1A. Advice needed to be provided accurately. The Committee would go back and relook at those issues, including the residual issues which were presented by Mr Sheburi. When the members came back they would then present their views so that the process of the A-List was completed. The Committee would need sufficient time to deal with these preparations and allow members to have consultation. The Committee needed to work and make sure it was within the timeframe to complete this process. This was a proper process where all the stakeholders and the Committee were able to consult each other so that there was a Bill that could pass constitutional muster. There were further issues that the Committee needed to deal with. This would then inform the next Committee meeting. The Committee would meet on a date that was reasonable for the Members to come back and resolve these issues. The next meeting was supposed to be on Tuesday. There might not be enough time for consultation. The Committee Secretariat would communicate with Members if the Committee could proceed on Tuesday or any other day so that these issues could be concluded. He appreciated the comments from all the stakeholders and all the issues raised. This would inform the process of how the Committee would conclude this matter.
The meeting was adjourned.
Chabane, Mr MS
Khanyile, Ms AT
Modise, Ms M
Molekwa, Ms MA
Pillay, Mr KB
Ramolobeng, Ms A
Roos, Mr AC
van der Merwe, Ms LL
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