Electoral Amendment Bill: further deliberations; with Deputy Minister
04 August 2022
Chairperson: Mr M Chabane (ANC)
Tracking the Electoral Reform Legislation in Parliament
The Committee convened in a virtual meeting to consider three key issues related to the Electoral Amendment Bill. These dealt with independent candidates contesting in single or multiple regions; the percentage of signatures required for a candidate to support their candidacy; and the cooling-off period. There were also some consequential amendments needed for the application process for candidates.
The Electoral Commission (IEC) said it had been asked to deal with issues relating to Schedule 1A of the Electoral Amendment Bill. It had initially provided for independent candidates (ICs) to contest multiple regions. It subsequently received a request that it should limit this to a single region, and that was what Schedule 1A would now do. There were other consequential amendments, for which the IEC had submitted a proposed draft on how it recommended those amendments should be dealt with.
The Parliamentary Legal Service (PLS) pointed out that from the presentations received from the Department of Home Affairs (DHA) and the IEC, the Committee had two options -- to limit ICs to a single region, or to allow them to contest in multiple regions. A Member said that if an independent candidate was contesting the National Assembly and the provincial legislature, which seat did that candidate occupy, bearing in mind that it was one person? If one acquired enough votes to meet a threshold for a seat allocation, where would the independent candidate occupy a seat? Would the seat be in the provincial legislature, or the National Assembly, bearing in mind that an independent candidate could not occupy two seats?
The Committee had requested submissions on the constitutionality of both options, and received a presentation from the State Law Advisor that said both options were constitutionally permissible. However, Members raised a number of issues, such as a candidate may be nominated for one or more regions on the national list of a party, but may be nominated as an independent candidate in only one region; and how would one deal with the filling of an independent candidate vacancy? As
the Committee was in pursuit of wanting the process to be fair and not restrictive to independent candidates, it should take an option which was fair, to avoid litigation.
The Committee decided to lower the percentage of signatures required for a candidate to support their candidacy, from 50% to 30%. It also decided that the proposed cooling-off period would remain in place. The only matter it would come back to, as agreed with the IEC, was on the independent candidates contesting in single or multiple regions. It would also deliberate on the number of allowable party agents in its next meeting, when it would also deal with the A-list version of the Bill.
The Chairperson said the Committee would be dealing with outstanding issues that Members had requested to be consulted on, although it had already made an impression on the consensus informed by the process of the deliberation it had taken on. It would also get a brief recap from the Content Advisor on key issues that were still outstanding.
He said the Committee might need to bring the Minister and Deputy Minister (DM) of Home Affairs back to the Committee, as he had learned of correspondence concerning the contract between EOH and the Department of Home Affairs (DHA). There had been an article related to that matter in one of the national newspapers. It appeared that the correspondence from one of the parties in Parliament had raised issues which the Committee had not been briefed on by the Department, to the extent that there were non-factual issues arising from the correspondence. It would be important that the Committee get into the issues of the Department and the Committee, so that when the Committee interacted with the public, it would be able to raise factual issues without limiting Members' views.
At the time, the State Information Technology Agency (SITA) and the DHS had briefed the Committee on the issues that had arisen, in line with the National Treasury (NT) consultation by the Department. It had then decided that for the period in question, the Committee would request the Department to update the Committee on the process. It would allocate time for the Minister and the Director-General to come and brief the Committee on all the issues that seemed to be unclear, so that all Members could talk with authority on those matters. The Committee noted the correspondence concerning that matter.
Key issues outstanding
Mr Adam Salmon, Committee Content Advisor, said there were three outstanding matters that Members wanted to consult on:
Independent candidates contesting in single or multiple regions;
The percentage of signatures required for a candidate to support their candidacy; and
The cooling-off period.
On percentages required, there was an appeal that the 50% required was too high, and that a lower number, such as 10% or 15%, should be considered. One Member had proposed 20%, so that the signature requirement was more viable for independent candidates.
The cooling-off period was something that the Independent Electoral Commission (IEC) had said it could not monitor. That had become a difficult issue in the sense that there was the question of how it would be able to ensure that the requirement was met. There was also the question of whether that would be constitutionally allowable in terms of restricting the ability of anybody to stand as a candidate.
The Committee had already debated on independent candidates (ICs) running in multiple or single regions, and had concluded that a candidate could run only in a single constituency. There was no constitutional issue around that. The IEC had raised that issue again, and wanted to give the option for multiple regions.
There were also some consequential amendments needed for the application process for candidates.
Electoral Commission on independent candidates contesting elections where they are registered as voters
Mr Mosotho Moepya, Commissioner, IEC, observed that the Commission had been asked to deal with issues relating to Schedule 1A of the Electoral Amendment Bill. It had initially provided for ICs to contest multiple regions. It subsequently received a request that it should limit this to a single region, and that was what Schedule 1A would now do. There were other consequential amendments, for which the IEC had submitted a proposed draft on how it recommended those amendments should be dealt with.
Mr Sy Mamabolo, Chief Electoral Officer (CEO), IEC, said Mr Masego Sheburi, Deputy CEO: Electoral Operations, would zero in on a particular element of Schedule 1A, which was locking the participation of ICs into a single region. Otherwise, Schedule 1A was the same as per the previous discussion, barring that one issue.
Mr Sheburi said that at the previous meeting, the IEC had presented a draft Schedule 1A, premised on the ability of candidates to contest for the National Assembly (NA) elections in more than a single region. That was because the IEC understood that the entire Republic of South Africa was a constituency for the NA elections. Therefore, limiting a candidate to a single region would be constitutionally impermissible. The Committee had since requested that the IEC present a draft that limited independent candidates to a single region.
Mr Sheburi presented the following amendments:
(4) A candidate —
(b) may be nominated as an independent candidate in only one region.
The IEC had removed the passage on the ability of candidates to stand in more than one region.
On page two (see the attached document), the IEC had removed item 5 (eB) that provided for a mechanism to deal with an independent candidate who had won a seat in more than one region, to the extent that independents were now locked into one region, and the ability for them to hold seats in more than one region did not arise.
Insufficient party lists and independent candidates allocated more than one seat
This item dealt with forfeiture provisions. The IEC had removed 7 (1B) because that item provided for and dealt with a candidate who had won seats in more than one region. As a result, there was a consequential amendment in item 7 (2), removing reference to sub-item (1B).
Mr Sheburi added that the Schedule as it stood facilitated participation of ICs in one region only, and allowed party candidates to be nominated to contest in multiple regions, as well as the national list of a political party.
Ms Sarah Govender, Senior State Law Advisor, Office of the Chief State Law Advisor (OCSLA), said that the OCSLA had no comment to add at that stage.
Adv Siviwe Njikela, Senior Parliamentary Legal Adviser, Parliamentary Legal Service (PLS), pointed out that from the presentations the Committee received from the Department and the IEC, what had become apparent concerning multiple or single regions, the Committee had two options:
to limit ICs to a single region;
to allow the ICs to contest in multiple regions.
As Mr Sheburi had said, the Republic was a constituency for people to contest for the NA. From the discussions the Committee had over the past few weeks, and from the counsel who had represented the Department in the last meeting, it was clear that the Committee had two options which were both constitutional. It was a policy choice that the Committee had to make. The PLS wanted to put a rider to the Chairperson for consideration by the Members -- if the Committee had two options which were both constitutional, the question was, which was less restrictive for the participation of ICs? There may be a more restrictive option, and there may be a less restrictive option for the purpose of allowing the ICs to participate. In PLS's first presentation, it had made the point that electoral law should aim to enfranchise, empower and create space for people to participate in elections, either as candidates or as voters. There was a more restrictive option, and a less restrictive option. That had to be a consideration that the Committee must take into account as it made its decision. That was the principle that PLS was stating, based on the case quoted from the EFF, that the idea should be to create space and empower and enfranchise, rather than be restrictive.
Further deliberations on outstanding Electoral Amendment Bill matters
The Chairperson said that the Committee would engage with those issues based on the premise that this was in line with what the IEC had presented last week and on that day, and within constitutional parameters. It would work with that guidance, and cautioned on the legal submission that had been presented by Adv Njikela.
Mr K Pillay (ANC) made comments based on the court judgment, and why the Committee was there. He wanted to refer directly to the court judgment, specifically to the part in section 19 of the Constitution that said that every citizen was free to make political choices, which included:
the right to form a political party;
to participate in the activities of, or recruit members for a political party; and
to campaign for a political party or cause.
Section 19 also said that every citizen had the right to free, fair and regular elections for any legislative body established in the Constitution. Every adult citizen had the right to vote in elections for any legislative body established in the Constitution, and to do so in secret; to stand for public office; and, if elected, to hold office. It also said that one had the right as an individual not to associate or align oneself with a political party. Prior to section 19, there was another part in the judgment that talked about one not wanting to have any association with, or align oneself to, any political party.
He wanted to draw the Committee's attention to the basis of having to amend the Electoral Act to allow a South African adult citizen to participate in a general election, and to be able to do this as an individual. If one was contesting this space as an individual, this meant that this would be one person. If one looked at all of the presentations that the Committee had received thus far, it spoke to an independent candidate contesting two spaces -- the legislature, a province, and the national legislature, the NA. If an IC was contesting the NA and the provincial legislature, which seat did that IC occupy, bearing in mind that it was one person? If one acquired enough votes for meeting a threshold for the allocation of a seat, then where would the IC occupy a seat? Would the seat be in the provincial legislature, or the NA, bearing in mind that an IC could not occupy two seats? The difference with that was that political parties had lists of candidates. Parties would then allocate accordingly regarding the number of seats they acquired when it came to placing members within the respective legislature.
The Committee had requested submissions on the constitutionality of both options, and had received a presentation from the State Law Advisor that said both options were constitutionally permissible. That meant that whether the Committee chose the option of a single region or multiple regions, it was still within a permissible constitutional requirement. If one had to look at the three ballots that were proposed, there was the first ballot, which would be province to province (legislature); the second ballot, which would be province to national; and the third ballot, which would be national to national. His interpretation was that on the national to national, there were no ICs, because those were compensatory seats, and those were reserved for political parties only. In the province to national, the presentation from the IEC was saying that perhaps ICs should be allowed to contest in more than one region, because the Republic was a constituency.
If one was contesting the Republic, and the constituency was one, the one was still coming from a particular region. Even if one had to contest multiple regions, the votes were not aggregated. The Committee had agreed on that, and the IEC had submitted in its presentation that the votes were not aggregated. How much of a difference was it making if one was contesting in one region or multiple regions when the votes were not aggregated? It meant that one would receive the highest number of votes in a particular region, and that was where one may want to occupy a seat.
With the province to province ballot, it had already been clearly stipulated that one had to be a registered voter within that province. That raised the question of whether Members agreed on the second ballot – province to national -- specifically whether ICs could be allowed to contest in more than one region because they were registered within the Republic as a voter. Were the ICs going to occupy only one seat? Had the Committee delved into whether ICs would contest both the province and the national ballot? If ICs were going to do that, what were the repercussions of where they occupied a seat? He felt that that was something that the Committee had not been able to answer. His submission was that the Committee had agreed on a single region, which for him was constitutional and less complicated. There may be no harm in the second ballot of a province to national, bearing in mind that votes were not aggregated, and one would occupy a seat only when it came to the highest number of votes acquired in a particular region.
Ms T Legwase (ANC) shared Mr Pillay's sentiments. She asked Adv Njikela to deliberate more on the restrictions he had spoken about, specifically on one of the options being more restrictive, and the other being less restrictive.
Mr A Roos (DA) said that Members had received the document on Schedule 1A the evening before the meeting. It was a by-election day, and Members of the DA had been quite busy the previous day. The Committee had looked at an alternative, and had been given an impression by the IEC that that could be unconstitutional. It had then been indicated that it was not unconstitutional at some point in the deliberations. This was where the Committee had specifically asked if it could get a declaration of constitutionality on specific issues, including that of single versus multiple regions. The Committee had received that declaration from the state and the Parliamentary Law Advisor that it was permissible, and it had a meeting on that issue. Arguably, it was not less restrictive. For example, Mr Roos was on a Gauteng to NA list and could only be on the Gauteng to NA list. He could not be on the Western Cape and Free State lists as well. He did not understand the argument about unfairness or whether it was detrimental. He, as a candidate, chose to associate with a political party, and he was restricted to standing in Gauteng, where he was registered to vote. The only reason why the Committee had gone down that other road was because it was suggested that it was unconstitutional.
He had a question on Schedule 1A, item 4. This item read:
(4) A candidate —
(a) may be nominated for one or more regions and the national list of a party; and
(b) may be nominated as an independent candidate in only one region.
He did not understand why (a) seemed to suggest that persons in a party could be nominated for more than one region, and on the national list. His understanding was that, as it was now, a party candidate could also stand in only one region.
In the last section of the document, there was the issue of filling the independent vacancy. A big challenge there -- which he had raised before -- was that it was suggested to use the process as per section 7. That section said that if an IC were to resign or pass, their seat would be filled by recalculation. The challenge that had been raised before, both in a public forum and in the Committee, was that it could result in a situation where one was filling a vacancy, did a recalculation, and a party or person that was already in the NA then lost their seat in the calculation, along with the IC. Then, one could have two other parties, or an individual and another party, that each got a seat. The Committee had agreed that when it came to filling IC vacancies, one would take the original result as calculated. Then, if at the stage of highest remainders (the first five), one would choose the next person on the ballot who had not been elected. Alternatively, one would go to the highest averages, and choose the next person from that original calculation. That was the Committee's understanding, and it avoided an anomaly. He had seen a simulation of how the calculation could work. His proposal to the Committee was to go with its original call, which was to say that if an IC resigns, etc., one could take the next person on the final calculation of that election. The next person who would have come in would then come in.
Ms L van der Merwe (IFP) supported Mr Roos's proposal on filling vacancies, because she had the same concerns. She also wanted to support his proposal that the Committee returns to the original decision, where the next person on the ballot would be chosen. She felt that there were merits in both the arguments being made for and against multiple regions or a single region. One of the Committee's biggest concerns was that it wanted to protect that process against possible litigation. If possible litigation happened, it would put the 2024 elections at great risk. As the IEC and PLS had told the Committee that the option it was considering was restrictive in nature, and that it should maybe err on the side of caution and take the less restrictive option, she felt that the Committee should take that very seriously. As much as she understood the arguments being advanced for both options, she thought that the Committee's job was to ensure that it allowed ICs to compete fairly. In her view, one of the options was more restrictive, and the other was less restrictive.
Ms M Molekwa (ANC) agreed with Mr Pillay and Ms Legwase, who had both covered what she wanted to ask.
Ms A Ramolobeng (ANC) shared the same sentiments as Mr Pillay.
Ms M Modise (ANC) said in light of the presentation, which indicated that both options were constitutionally permissible, the Committee was in pursuit of the process being fair and not restrictive to ICs. She therefore wanted to support the view that the Committee should take a fair option, to avoid litigation, and avoid a situation where the parties that took the process to court returned to court. She wanted to align herself with the view that contesting at a national level as one constituency was also advisable. She suggested that the Committee continue to align with that view and consider allowing ICs to contest in all regions. She wanted to emphasise the decision the Committee had taken in a previous meeting, namely that the votes that would have been garnered would not be aggregated. An independent candidate would only have the option to take a seat where he or she would have received the highest votes in a particular region.
The Chairperson said that the Committee had dealt with the matter related to the replacement of a candidate, as it had discussed in a previous meeting. That stood as its understanding of the matter. He invited Adv Njikela to respond on the matters where he had cautioned the Committee. There was a sense of where Members wanted to decide on those two policy options. He would also invite the IEC and the OCSLA to respond to questions. Ms Modise had laid out the principles around the options that the Committee needed to consider.
Mr Moepya said that the issues that Mr Pillay had raised had been reflected on somewhat by other Members, and he would call on the team to respond to the questions. He observed that Ms Modise had covered the issue as well.
When the IEC had raised the issue of an IC contesting in more than one region, there were clear conditions it had laid down. If an IC won more than one region, they could take a seat only in the region where they had the most votes -- that is, where they had the most support. An IC would forfeit the area where they did not get the most votes, even if they won. It was evident that an IC, in terms of the definition of the Bill, was one person. That was what the IEC had taken into account. There were a number of other issues that had been raised, and he asked the Chief Electoral Officer (CEO) to respond. He was glad that the Chairperson did not want the IEC to return to the recalculation issue.
Mr Mamabolo responded on the issue of the replacement of an IC. The IEC's proposition was that it should use a forfeiture calculation if an IC vacates a seat. It was a purer way of doing it and brought all contestants in that region into contention for that seat. It was based on the original votes that all contestants received in that election. The divider in the formula would be small, because one would be removing the seats and votes already held by an IC. It was a much fairer way of doing things, by bringing everybody back into contention. He reminded Members that if one had a seat nationally awarded at election time, one could not lose that seat, even when a recalculation was done. All the calculation said was that one was now in contention for an additional seat that had become available. Both ICs that did not have a seat and all political parties would be in contention for that additional vacant seat. In that formula, one could not have a seat at election time and then, after that replacement calculation, lose a seat that one already held. One would be in contention for an additional seat. That was the IEC's proposal. If the Committee wanted it to go with the results and calculations as they stood after the election, and simply go to the next person, that could be done. What the IEC was proposing would achieve the same effect, because a party that was next in contention, even with that calculation, would be the first party to gain in any event. The IEC had argued that it was best to do a recalculation, since it was purer, but if the Committee saw things differently, then a decision could be made, and the IEC would adjust accordingly.
Mr Roos had spoken about the issue of party candidates being able to contest multiple regions. In the Bill, the Schedule had to be aligned with the principle in section 27(c)(A). Specifically, if one was locking ICs into one region, then party candidates must also be locked into one region. The provision in section 27(c)(A) provided for that, and the Schedule must also be aligned with that principle. Mr Mamabolo felt that that was a fair point.
Mr Pillay had raised the issue of whether party candidates or ICs could contest a province or a region. As he recalled, that matter had not been placed directly before the IEC thus far. It was a matter that the IEC could look at, and bring a proposal to the Committee. The options would be to allow that, and give people an option to choose if they were elected either in a province or region, or to lock people into a region. The constitutionality of that would have to be considered again before any proposition was brought to the Committee.
The Chairperson responded to the last point that Mr Mamabolo had made. The intention was to close that matter in that day's meeting. He was trying to seek guidance on whether the Committee ought to allow the IEC to take a fresh view on that matter, or whether it may limit the Committee to affirm one of the options that were already under discussion. Members may also need guidance, because it was a critical matter. The Committee needed to satisfy itself and the legal team. In principle, the Committee could resolve that matter because it still had sessions with the other House, which may look at the matter differently. He also reminded Members that there was a specified time period for deliberations. Since that the IEC might need more advice on the matter that Mr Pillay had raised, then if the Committee allowed that, its time for deliberations may be lengthened. He was convinced that the Committee had deliberated adequately on the matters -- these were the technical issues.
Adv Njikela said that the PLS had made the point that given the two options the Committee faced, it would appear that it had to consider both options and make a decision. One issue that the PLS had already put before the Committee was that of a less restrictive option. The judgment in the New Nation Movement matter was very clear -- that the choice of an electoral system was a matter that fell squarely within the discretion of Parliament. This was where the Committee found itself. The PLS made the point that the Committee was confronted with two options. One may be considered restrictive, and the other less restrictive. A choice of an electoral system in terms of the judgment was a matter entirely within the Committee's discretion, subject to rationality. Rationality demanded a simple thing: when one makes a choice, the choice must be linked to a legitimate government purpose. One was in the clear as long as one could pass that threshold. The Committee needed to come up with a system that would create the space for fairness and equity, and for the public to perceive what was being done as being open and creating a space for all the parties to compete. There would be a space for both political parties and ICs to be seen to be competing fairly in the system. The PLS would leave the decision to the Committee's discretion, but it wanted to make those principles clear to the Committee for consideration.
Mr Moepya said the IEC would look at Mr Pillay's question as soon as possible. It would do so on or before the next session.
The Chairperson was getting the impression from Members that the Committee ought to create a platform that was less restrictive for candidates to participate
Mr Pillay said he was keen to listen to the IEC's submission on his earlier question, particularly because it could give the Committee direction. One could not leave that squarely to preference, where one decided whether one took up a seat in a province or the NA. It meant having to print on two ballots. It meant wasted votes on any one of the ballots. The Bill in its current form said that one chooses to contest either in the province, region, or the NA. If he recalled correctly, the Bill said one needed to choose where one contested. If that was the case, then perhaps the Committee could leave it at that.
Mr Roos noted that the Committee had had an extensive public participation process. The Committee had "zoomed in" on details, and discussions had got technical, but it was important not to forget first principles and what had come out of the public participation. There was a call for direct accountability. That had led the Committee to lean toward saying that one needed to choose one's region.
Ms van der Merwe supported the IEC going back and presenting on the question Mr Pillay had raised. She also supported the proposal that Ms Modise had made. She was comfortable that the Chairperson indicated in his remarks earlier that there was consensus that the Committee wanted to be more inclusive and not more restrictive. When the Committee looked at the two options, would the public perceive the option the Committee was choosing to be more or less restrictive? With the process before the Committee, both options were constitutional, but was the Committee creating a fair and inclusive environment where all candidates could compete fairly? That was where the Committee needed to err on the side of caution. She was glad that the Chairperson had said that the Committee would go back and look at some of the options.
Mr Roos repeated his points. The Committee had had an extensive public participation process. One of the principles that the Committee had looked at repeatedly was the issue of direct accountability, and the public asking for direct accountability. The Committee kept talking about avoiding litigation. The Committee also needed to be careful to avoid the following scenario: If someone was going to threaten to sue, then that made that view more important than all the other input from people who could not litigate. When the Committee had a public participation process, everybody's inputs needed to be considered equally.
He felt that the Committee was being presented with a false choice -- that its choice was whether to have a restrictive system or a non-restrictive system. The choice that the Constitutional Court had stated was that a person should have the right to associate or not to associate. He chose to associate with the DA and its principles and values, so he stood for that party as a candidate. He could stand only in Gauteng. For example, as an independent, he chose not to associate. Why should he be able to stand everywhere? At the end of the day, he would go out to one's community in Gauteng, and represent their interests in Parliament. That was why he was from Gauteng, to the NA. The idea of restrictive versus non-restrictive allowed ICs to stand on the same terms as a party candidate.
He had heard what was being said, and agreed that the Committee should have more input on it. However, it should not say that just because somebody wanted to litigate, it should not have a situation where the ICs should be able to stand anywhere, and the party candidates should be able to stand only in their province. This was going back to many public inputs on direct accountability, and wanting one's candidate to be in one's area and accessible to one. He did not see how candidates from a province could do that in all the provinces.
On filling IC vacancies, there was a saying that one could choose one's opinions, but one could not choose one's facts. It was fact that it was not the case, as the IEC seemed to be suggesting, that when one did a recalculation, then only one person would come in. The reason was that when one lowered thresholds, parties above the parties who would have obtained a higher remainder might now get more seats. Therefore, the lesser party suddenly had a lower remainder, and could lose that seat. It would create a problem for the Committee. It had a written representation on that, and it needed to hear and understand that representation, because it was complicated. It was also mathematical and technical. He had been asking for that for a long time, because the Committee needed to see and understand the calculation methods. The presented system could result in multiple incumbents losing their seats when they otherwise would have gained a seat. There would then be a problem in the law, because there was nothing to deal with that situation. The Committee had agreed and discussed that that vacancy would be filled by the next person in the calculation. In a meeting, the Committee had resolved that vacancies of independent candidates would be filled with a recalculation. He remembered the Committee agreeing to that. It was a much simpler solution, and it would guarantee that there would be only one candidate or person coming in.
The Chairperson said that one of the techniques the Committee needed to attempt to master was having all its decisions grounded as it moved to the next meeting. He understood that every Committee, and individual or stakeholder, attempted to introduce new matters. However, that took the Committee back to discussing issues it had already exhausted and dealt with. The Committee closed its meeting last week on the points it had requested the Content Advisor raise. All Members had been consulted on that. That was its subject focus for the current meeting. He was not trying to rebut what Mr Roos was saying. The Committee would recapture those notes, which recorded that all Members participated, and a decision had been carried. It would do that recapturing in a separate form, so that it gathered the deliberations and the notes on the decision it had taken. However, that did not suggest that the Committee returns to those issues.
Mr Mamabolo wanted to clarify a point. The input by Mr Roos suggested that the IEC had gone, by its own volition, to implement something to which the Committee had not agreed. That was a "fundamental irregularity".
The Chairperson interjected to kindly ask Mr Mamabolo to pause. Members were still making their inputs. Once all Members had made their inputs, the Committee would formulate a decision on the matter. He would then invite the IEC to raise matters.
Mr Moepya said that that was acceptable.
Ms Ramolobeng did not have a comment.
Ms Modise said that her views had not changed, and that she had nothing to add.
Mr Njabulo Nzuza, Deputy Minister (DM) of Home Affairs, responded to questions. The seats currently termed as a province to national were actually constituency seats for a specific province. Those seats were determined according to a number of factors that were prevailing in that particular province. For example, if KwaZulu-Natal (KZN) had an allocation of 20 seats out of the 200 based on registered voters, and based on a number of dynamics, those seats were for specific people coming from KZN. This meant that a person who must occupy that particular seat became a representative of the constituency of KZN. It became a bit tricky if one says that there must be a person who is deciding that they will represent the interests of the people of Gauteng, KZN, Eastern Cape, etc., and then decided which seat they were going to take. He felt that that issue needed to be considered because those seats were for a specific constituency.
There was also the fact that one could not treat differently the people who decided not to associate with political parties and became independents, compared to those who wanted to associate with a political party. One could not say that one wanted to give an individual certain rights, and therefore one must restrict the rights of those who had chosen to contest out of association of political parties. For example, as Mr Roos was saying, a person contesting in the list of a political party from a specific province to national did not appear on the list of a person who was contesting in another province. This meant that a person who associated with a political party had only one option to contest as an individual. One had to choose which constituency one was from, and represent that particular constituency. One might be disadvantaging others once one puts others at more of an advantage. It was not restrictive – everyone was on an equal platform when one said, "one constituency per person". Already with political parties, individuals who were contesting represented a specific constituency. A person who was an independent would now have an advantage over a person who chose to associate with a political party.
Mr Moepya said it was regrettable that an allegation of the magnitude that Mr Roos had made, had been made against the IEC. The IEC had never come to the Committee on a policy issue. It had been requested by the Committee, and had done so on technical advice. There was nothing that the Committee had requested from the IEC that it had not done. It had been requested to come with scenarios and calculations on the Droop Formula and other methods. It had done so. It had also raised the issue that in the original Bill, there was no provision for vacancies to be filled. The Committee had said that a way needed to be found. The suggestion that the IEC was "choosing facts" was something it wanted to refute. It wanted to place that on record. It was unfortunate, but it was important to point that out.
Mr Mamabolo added that the very first presentation made following the Committee's public participation process, had proposed that the IEC deal with filling vacancies. The proposition made in the Committee at that point was to do a recalculation. That was the basis on which the proposition had been made before the Committee.
The Chairperson noted that when he stopped Mr Mamabolo in his intervention, he knew that the views expressed by Mr Roos were not the views carried by the Committee's decisions in the process of discussions, and did not represent the collective views of the Committee. He wanted to state clearly that the Committee was not carrying that view which had brought discomfort to the IEC and any other stakeholder, including PLS, the DHA and the State Law Advisors. The Committee had always appreciated the work that the stakeholders had done in assisting the Committee to deliberate and arrive at particular decisions. Noting what the IEC raised as discomforting, he wanted to invite Members to comment on that, after which the Committee would close that topic of discussion. It would do that to ensure that the impression that the Committee had raised that "unfortunate statement" towards the IEC was not carried outside of the Committee.
Mr Roos asked to make a point of clarification.
The Chairperson said that he would invite Members to make comments.
Mr Roos wanted to clarify, because he felt he had been misunderstood.
The Chairperson did not allow that. He had said that he would invite Members to make comments. He was stating the views that needed to be carried out on behalf of the Committee. Since stakeholders had raised that particular issue, Members needed to have input on that. Members would be given a chance to comment on the matter, and the Committee would then decide on the matter that it had been deliberating on. If there was any clarity that Members wanted to raise on the subject, they would be able to do so. It was an important matter that the IEC was raising with Members of the Committee.
Mr Pillay agreed with the Chairperson's summation, that it was not the view that the Committee held. He felt it was important that the Committee maintain that.
Ms van der Merwe had difficulties with that process. Mr Roos said he was misunderstood, so she did not want to comment. It was safe to say that the Committee had valued the guidance that the IEC had given it through the process, and it did value its input. She did not want to make further comments, as she felt Mr Roos should have been given an opportunity to speak first.
Mr Roos said that the Committee truly appreciated the input of the IEC. Mr Moepya was correct that IEC had always come with exactly what they had been asked to do. When he stated that "we can choose our opinions, but not our facts", it was related to the next statement that he made, where he said that the system proposed in Schedule 1A for the filling of the vacancies could result in an existing party losing its seat, and more than one person being allocated a seat. That would be a problem, and it was a fact. His statement was purely about that element of the system, and not about the rest.
Ms Modise said that the statement raised earlier by Mr Roos was not that of the Committee.
The Chairperson felt that Members had understood each other on how that matter had been resolved. He wanted the Committee to pay more attention to that, because it had meant misinterpretation of certain issues that had been raised.
There was a matter which the Committee had raised about participation in multiple or single regions. In Mr Sheburi's presentation, there was the view that the matter raised by Mr Pillay may require the Committee or the IEC to come back and deal with that in its next meeting, which would be the following Tuesday. With the issues that the Committee had raised, the Chairperson was pleased that the DM responded in a way that practical advice was offered on the two options.
The Chairperson felt that it was fair for the Committee to step off that item, and to suggest that the matter raised by Mr Pillay be responded to on Tuesday.
Mr Moepya said that IEC would respond to Mr Pillay's question.
The Chairperson observed that Ms Modise had summed up the issue of fairness and the non-restriction of the ICs. That was the view that would await the IEC on the matter Mr Pillay had raised.
The second matter that the Content Advisor presented was the quota requirements, which the Committee had agreed would be 50%. However, informed by the presentation made by the stakeholders, the Committee had agreed that it needed to do consultations. Members had now interacted with those views. The Committee would then discuss the matter of the cooling-off period.
Mr Pillay said that the Committee had reached consensus on the requirement for signatures. After receiving the recent presentations, he felt that the Committee was amenable to reconsidering what it had already reached consensus on. He felt it was important that while the Committee was allowing for the inclusion of ICs to participate, there had to be some kind of support that one had garnered for one to contest. He saw this as being a bigger space than local government. In light of that, having to reconsider the threshold, he was in support that it should be lowered. The threshold could not be so low that it did not show support. He proposed to bring it down from 50% to 30% as the required number of signatures for contestation.
Mr Roos said that having had the opportunity to caucus, and after looking at the input of the IEC, and considering other views on that, initially it had been quite a difficult thing to look at. If one looked at international standards, there were all sorts of different figures that one could choose. The DA felt that what the IEC was proposing was the right way to go (i.e. a 20% threshold). In its understanding, it was on the lower end of the scale of what the IEC had proposed. The DA was proposing 20%.
Ms van der Merwe said she had caucused, and the IFP's view remained the same. She had previously indicated in her submission to the Committee that 10% to 15% would be a more reasonable amount of signatures for an IC to gather. The IFP had made that submission because it felt that having 50% -- which amounted to approximately 22 000 signatures -- would impede the participation of ICs. However, the issue of 20% had been mentioned in the Committee's last meeting, and was also mentioned by Adv Mitchell de Beer, Legal Counsel, DHA. Other stakeholders, such as the IEC, had also expressed concern that 50% might be too high. Since 20% was mooted in the last meeting, she had taken that point back, and the IFP had consulted and deliberated on it, and it was happy to agree with the 20% threshold.
Ms Molekwa agreed with Mr Pillay.
Ms Ramolobeng did not have a comment.
Ms Modise said that the ANC's view was that the threshold be taken down from 50% to 30%.
Mr Pillay raised a point of correction. He said the proposal was from the State Law Advisor, not the IEC. The IEC had not given a percentage, but had just said that the threshold must be reduced because it felt that 50% was too high.
The Chairperson said that if the Committee went back to its records, the IEC had made a detailed presentation on the views on the percentages, on which it wanted to go and consult. He felt that it was correct that there was no opinion presented on which option the Committee needed to take. The majority view in the Committee was to lower the percentage to 30%. That would be the decision taken by the Committee in terms of the process, notwithstanding there was still engagement in line with other processes that may still need to be followed by the Committee and the Select Committee.
Cooling off period
The next item for discussion was the cooling-off period.
Mr Pillay said that the ANC maintained the view that the cooling-off period should be there. It allowed for administrative processes to be finalised. He thought it was important that it still remained.
Mr Roos said that the DA had received input saying this would be impractical to police. Its position was to say that the cooling-off period could be removed. In reality, if one looked at the timeframes, etc., and if one balanced how practical it would be to police it versus the intended goal, the DA's feeling was that it was not really necessary.
Ms van der Merwe said that her points remained the same. The IFP had had a lengthy discussion as a political party on that clause. It felt that since it was already imposing requirements such as deposits and signatures on ICs, that would suffice as a vetting mechanism. Therefore, it did not think that including the cooling-off period was advisable from a practical point of view. Those things would be difficult to police -- even more so for the IEC. It would also be difficult to police considering all the additional requirements that an IC would have to fulfil to ensure free and fair elections. The IFP's view was that the Bill should not include the cooling-off period.
Ms Ramolobeng said that she was covered by Mr Pillay.
Ms Modise supported the cooling-off period remaining.
The Chairperson observed that the Committee had solicited views on all the matters deliberated on, and the support for the cooling-off period remaining had been stated. As a Committee, that decision would be carried.
As agreed with the IEC, the only matter it would come back to was independent candidates contesting in single or multiple regions. Tuesday would be a holiday.
Mr Eddie Mathunsi, Committee Secretary, said that the Committee had approval for a meeting on 10 August, which was a Wednesday.
Mr Roos wanted to remind the Chairperson that there was also the issue of the number of party agents, which the IEC had raised in the last meeting and asked the Committee to consider. The proposal was that if the venue was not big enough to accommodate multiple party agents, the allowable number be reduced or rotated. The Committee had not been asked to take a position on that, but was asked to consider it for the next time. That was also one of the issues the Committee had been asked to resolve.
The Chairperson suggested that the Committee carry that matter forward to the following Wednesday.
Mr Roos agreed with his suggestion.
The Chairperson said that those issues would be carried forward to Wednesday, and it would finalise all of the issues it resolved on.
Ms Govender said that the OCSLA was happy with what had been discussed. It would look at the decisions that came out of that day's deliberations, and then implement them into the A-list. It would be guided by the Committee at the next meeting as to what further details needed to be considered.
Adv Njikela agreed with Ms Govender, and said that the PLS would wait for further guidance from the Committee. He felt that all the issues had been covered. There was a team from Parliament, and he asked the Chairperson that if the team had any other issues that he missed, it could be allowed to make its input.
Ms Daksha Kassan, Parliamentary Legal Advisor, said the IEC had mentioned outstanding drafting issues. Mr Roos had mentioned the issue of party agents. When looking at the IEC's presentation, there was a new amendment to section 30 which it wanted, which was currently not in the Bill. That was something that the Committee might need to consider at the next meeting.
Ms Telana Halley-Starkey, Parliamentary Legal Adviser, said there was nothing to add from her side.
The Chairperson asked the DM if his team wanted to raise any other issues.
Deputy Minister Nzuza said it was correct, and there were no other issues to be raised.
Mr Moepya said the IEC would deal with party agents in the next meeting. He and the CEO would possibly be unable to attend the following week as they would be out of office attending to official business. They took the process seriously, and would do their best to engage.
The Chairperson thanked PLS, the State Law Advisors, the IEC, the legal team from the DHA, and the DM of the DHA, for supporting the DHA in this process from the initial stages of the matter, and towards the end of the process. The Committee had a collective appreciation for all the stakeholders. Next Wednesday, the Committee would deal with only those two issues that were outstanding, and then close on them. It would then move to the business of the Committee.
Mr Salmon said that if the Committee met on Wednesday, it could try to have a revised A-list with all of the options, so that it could vote on one option or the other, to finalise the A-list. The Committee was already putting pressure on the National Council of Provinces (NCOP) Committee by delaying its process.
The Chairperson said that the Committee would deal with the A-list, adopt it, and then close on that matter.
The meeting was adjourned.
Chabane, Mr MS
Legwase, Ms TI
Modise, Ms M
Molekwa, Ms MA
Nzuza, Mr NB
Pillay, Mr KB
Ramolobeng, Ms A
Roos, Mr AC
Tito, Ms LF
van der Merwe, Ms LL
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