Legislature seat numbers: calculations; Premier & Constitutional Matters Standing Committee role in constitutional changes

Meeting report

The Chairperson welcomed the Members and the new Members of the Committee to the meeting. He said at the first meeting of the Ad Hoc Committee on Seats, he had asked the Procedural Advisors to provide some guidance to the Committee, and that the Committee would receive a briefing from the Research Unit, the Legal Unit, and Parliamentary Support Services in the meeting.

The Committee would also consider its minutes and matters for discussion, and he hoped this would give the Committee Members a sense of direction and background.

The Chairperson also welcomed the teams from the Research Unit, the Legal Unit, and Parliamentary Support Services to the meeting, as well as the Secretary of Parliament, and asked him to introduce the Western Cape Provincial Parliament staff who were present in the meeting.

Mr Romeo Adams, Secretary to the WCPP Provincial Parliament, introduced the delegation to the Committee.

Calculation of number of seats in legislatures

Ms Lisa Delcarme, Researcher, WCPP, briefed the Committee on the formula for the calculation of the number of seats in legislatures, the application of the formula in South African legislatures -- as well as in Canada and Germany -- the challenges in using population size, as well as the proposed alternative approaches to calculating seat numbers.

She said there was no best practice for calculating the number of seats in legislatures or determining the number of members there should be. The formulaic approach was the most common and conventional approach adopted and applied by statutory public bodies across various countries and electoral systems for determining the number of seats in legislatures.

Countries including South Africa, Kenya, Canada, Germany, Australia and New Zealand used this approach, as the adoption and application of the formulaic approach allowed for consistency, uniformity and transparency, but the WCPP was exempt from this approach due to provisions in the Provincial Constitution, which prescribed that the WCPP must have 42 Members. The formulaic approach used population size to calculate the number of seats by using a ratio of one Member for every 100 000 citizens.

A challenge when using population size was that when significant increases or decreases in the population size were not regularly considered/reviewed to re-calculate the ‘correct’ number of seats, distortions and anomalies emerged. The formulaic approach worked to calculate seat numbers. However, statutory and electoral bodies needed to review changes in population size regularly, and provisions needed to be set for when the reviews took place, and transparent mechanisms needed to be established to determine what constituted significant shifts in population size, which triggered the re-calculation of the seat numbers.

As a proposed alternative, she said using population density would help determine the number of the population within a square kilometre, as well as identify high- and low-density areas. Population density would also be a useful indicator to determine the number of citizens served by Members within their constituencies and the level of resources required by Members.

As another proposed alternative, using the number of registered voters to calculate the number of seats would ensure that Members were accountable to the electorate, but this would mean the population who were not eligible to vote would not be considered.

See presentation for further details.

Laws applicable to the number of seats in provincial legislatures

Adv Andre le Roux, Senior Legal Advisor, WCPP, briefed the Committee on the laws applicable to the number of seats in provincial legislatures.

He said the Independent Electoral Commission (IEC) had determined the number of seats to be allocated to each provincial legislature after the election in 1999, after a process of public consultation. The determination was based on a formula in item 2 of Schedule 3 of the Electoral Act, 1998, which provided that the formula for determining the number of Members of provincial legislatures would be by taking into account available scientifically based data and representations by interested parties, and that the number of seats must be determined by awarding one seat for every 100 000 of the population whose ordinary place of residence was within that province, with a minimum of 30 and a maximum of 80 seats.

The IEC had had authority to determine the number of seats allocated to the provincial legislature until 31 March 1999. The Western Cape’s Provincial Constitution had come into effect on 16 January 1998, and section 13 of the Provincial Constitution determined that the Provincial Parliament should consist of 42 elected members.

He said it had not been clear whether the IEC’s determination in terms of the national legislation (39 seats) or the determination of the Provincial Constitution (42 seats) should prevail, but the Constitutional Court resolved this uncertainty.

The judgment held that Section 143(1) permitted provincial constitutions to provide for different legislative structures and procedures for provinces that chose to establish their own distinctive legislatures, and that once provinces determined their own legislative structures in terms of section 143, such structures could not be altered by national legislation. The judgment upheld the Provincial Constitution’s determination that the number of seats in the provincial legislature was 42.

Costing of business plans of Committees

Mr Lubabalo Stemele, Director: Parliamentary Support Services, WCPP, briefed the Committee on the possible role of the Standing Committee on Premier and Constitutional Matters in support of potential constitutional changes.

He said a motion had been tabled for establishing the Ad-Hoc Committee in terms of Rule 119 to investigate and report on the appropriateness of the number of seats allocated to the WCPP, given the population growth and the movement of people across provinces, on 12 May 2022. The Ad-Hoc Committee had also been tasked to determine whether the current number of seats was sufficient to optimally represent the people of the Western Cape.

He said there was an issue in determining the role of the Standing Committee on the Premier and Constitutional Matters, and that of the Ad Hoc Committee. He said the Ad Hoc Committee would only be confined to investigating the appropriateness of the number of seats allocated to the WCPP and whether the number of seats was sufficient to represent the people of the province optimally. After the consideration and adoption of the report and its recommendations, it would be referred to the Standing Committee on the Premier and Constitutional Matters.

Discussion

Mr R Mackenzie (DA) asked if the Research Unit could look at other determinants for increasing the number of seats -- for example, the size of the province. He also suggested that the Committee invite the IEC to present to it on where it was with the new Act on increasing the number of seats.

Mr P Marais (FF+) asked if illegal residents were included as having a direct impact on determining the number of seats. If not, he asked whether Members of Parliament were required to serve informal settlements comprised mostly of illegal residents.

He also asked why comparisons were made between Canada and Germany, which were developed countries, instead of countries on the same level as South Africa. He asked if the IEC had powers that superseded those of the Premier and his Cabinet, even though there was a Constitution, and what gave the IEC powers over the Western Cape Constitution in determining the number of seats.

Mr P Marran (ANC) said the decision to look at models used in developed nations like Canada and Germany had been made by the Committee in the first meeting when the Chairperson was elected. He asked if it would be possible for the Committee to dispute the number of seats determined by the IEC.

Mr M Sayed (ANC) wanted to know if the implications of the changes that would need to be made in the physical setting of the legislature had been considered. He also wanted to know the current population number that would raise the number of seats to 71.

Ms C Murray (DA) wanted to know how having a greater number of MPs would lead to more accountability, and whether any additional measures would be required of the MPs to ensure that they met certain targets.

The Chairperson wanted to know if the Western Cape Constitution’s determination of the number of seats would mean that with continued population growth in the province, the number of seats would exceed 80. He also wanted to know ifTreasury would be able to absorb the costs if the number of seats increased in the province.

Response by Research Unit

Ms Delcarme said they had attempted to do a study on the implications, but because of the time they had been allocated, they could provide Members only with the information that was available to them.

There were also things that would need to be done in terms of infrastructure, such as the extension of the chamber and additional offices, as well as support staff. They would need to have a thorough assessment done by all sections that would be affected by an increase in the number of seats to better understand the financial and infrastructural implications.

Regarding the use of comparisons from developed countries, she said they had used information available to them. If more information from developing countries was needed, they would try to find it. On the population number, she said they had looked at the population for 2021 and had determined that the number of seats ought to be 71.

Mr Riedwaan Baboo, Manager: Knowledge Management and Information, WCPP, welcomed the recommendation by Mr Mackenzie to look at the other determinants for increasing the number of seats. He said the case studies of Canada and Germany presented the conventional, formulaic approach. There would not necessarily be much difference if the data were from any other example. The case studies showed that the electoral bodies made the determinations, but there were other variables and determinants that were factored in.

Regarding the implications, he said there was data shared in the actual research report, where a hypothetical example of the post-financial and infrastructure implications for the WCPP should the number of seats increase, had been shared. He said the argument on accountability was that if the calculation were based on the number of registered voters, there would be a potential for Members to focus on the areas where the number of voters were garnered from. The link between those who voted and those who represented that link was explicit, and the relationship was more identifiable.

Response by Legal Unit

Adv le Roux said the Electoral Act criteria spoke to the population who ordinarily resided in the province, and did not address citizenship. Regarding the IEC’s power over a provincial Constitution, he said the court's judgment was clear, in that once provinces determined their own legislative structures in section 143, such structures could not be altered by national legislation.

He read from chapter 9 of the judgment, where it stated that: One might loosely refer to these provisions of chapter 6 as default provisions: they provide the framework for provincial legislative and executive structures and procedures where none was provided for by a provincial constitution. If section 105(2) had no application, then neither does any legislation authorised pursuant thereto… A province with its own constitution could exceed the minimum and maximum number of seats.

On whether Treasury would be able to absorb the costs of the increase in the number of seats, he said in terms of the Electoral Act, there was a law that required determinations to be made, and Treasury would have to find the funds to make provision for the increase of the number of seats, and that would be a similar case for the provincial constitution.

Response by Parliamentary Support Services

Mr Stemele said in the case that the Committee would recommend an increase in the number of seats and there was not enough physical seating space, a hybrid sitting model would have to be implemented so that some Members would attend meetings virtually.

Follow-up discussion

Mr Marran said the 2021 Amendment of the Electoral Act needed to be consulted against the provincial constitution of 1998 and the court ruling that had been made on its behalf, to see whether the IEC could determine the number of seats.

Mr Marais wanted to know the difference between population and citizens, and how it was determined. He also wanted to know whether the figures used by the Research Unit were estimated.  

Mr D America (DA) wanted to know what underlying assumptions had been considered when the determination of 42 seats was made, and asked if those assumptions could be factored into the present determination.

Responses

Ms Delcarme said the figures the Research Unit used were based on the median population estimates for 2021 that were produced by Statistics South Africa.

Adv le Roux said the difference between citizens and population depended on the determination by a specific law, as both words were used differently in different laws in the Constitution. He did not know what had informed the decision of 42 seats, and would try to find some records that had led to the determination.

Matters for discussion

The Chairperson felt that from the discussion between the Members of the Committee, the consensus was that the province would need to consider a move away from having a fixed number of seats in the Western Cape Constitution to a formulaic determination so that as the population fluctuated, the formula would be reviewed. Variables such as population density or geography could be looked at in considering the formula.

The formula used by the IEC was one seat per 100 000 people, meaning the population would be taken care of, regardless of their legal or illegal citizenship. He proposed that a maximum number needed to be added to the IEC formula to limit the maximum number of seats the province could have. Regarding the ideal frequency to apply the formula, he said the IEC determined the number before every election, which could be stretched to 18 months before every election.

Mr Mackenzie proposed that they refrain from having a maximum number of seats because of the continuously growing population, and agreed with the formulaic approach of the IEC.

Mr Marais said the entire issue of the number of seats and population needed to be debated, because population growth could not be accounted for in terms of whether it was caused by inter-provincial migration or by the influx of foreigners to the province.

He said the people in the province suffered because no money was received for people migrating to the province from other provinces and countries. The province had the right to amend its constitution to suit its needs, considering that it was not in conflict with the national constitution, because it needed to be responsible for the people who lived in it legally. This was recommended to the Standing Committee on the Premier and Constitutional Matters to discuss.

He said there needed to be a legal procedure that could determine the extent of the inflow of people to the province, instead of waiting 20 years to determine the number, because the more the province was successful in its governance practices, the more people would come in.

Mr Sayed wondered if the principle of the proposed use of the formulaic approach would mean that every four to five years, the number of seats in the legislature would fluctuate. If that were to be the case, he said the implications for the budget, employment and infrastructural capacity would need to be looked at. He asked if the Western Cape Provincial legislature, being a heritage site, meant that there would be certain restrictions in terms of the infrastructural development that could be done.

Mr Baboo said the formula was a conventional approach, and the IEC had used only the formula without including other variables. The challenging part was that the IEC did not regularly monitor the changes in population size, and Mr Marais’ question about the definition of the population was important in this case.

Although the 2021 Amendment of the Electoral Act stated that before each election, the IEC would review the changes in the population size, there were no further details on what would constitute a significant change that would trigger a review of the number of seats.

Adv le Roux said the Electoral Act, as amended, meant that the IEC would determine the number of seats of the provincial legislatures before every election. He was concerned about whether the Committee understood the formulaic approach was intended to amend the Provincial Constitution, because he did not think that would be desirable. He suggested that the Committee could rather follow a formulaic approach and follow up with an amendment of the Provincial Constitution to reflect the outcome of the formulaic approach process, because incorporating a formulaic approach into the Provincial Constitution would remove a measure of flexibility, making it an obligation to follow that approach.

He suggested that the Committee had an option to focus on amending section 13 of the Provincial Constitution to change the number of seats. The other option would be to repeal section 13 because if it did, then the determination by the IEC would determine the number of seats for the provincial legislature. One of the benefits of this would be the promotion of uniformity in the sector and between all the legislatures, and it would address all the other concerns about expenditure.

It would also mean that for the Western Cape Provincial Legislature, there would be an automatic review every term, as determined by the IEC, and many of the questions raised by the Committee regarding the number of months before a review of the population would be done and how to determine the formula, would be answered and provided for by the Electoral Act. The other benefit would be the ability of the provincial legislature to reverse the repeal of section 13 in the future if it decided that it did not want the number of seats to be determined by the IEC anymore.

Mr Marran wanted to know if the provincial legislature could still opt for the IEC determination with the current constitution.

Adv le Roux said there was a current provision of 42 seats in the Provincial Constitution, and the IEC could not determine the number of seats for the province. The legislature could decide that it wanted to follow the formulaic approach and amend the Provincial Constitution to reflect that.

Mr Marais asked if the provision of a single seat per 100 000 people was enforceable or permissible, because if it was enforceable, that would mean it was a direct right that could be exercised, and the Provincial Constitution could be amended to allow for 71 seats.

He did not agree that section 13 needed to be repealed, because the Western Cape was in the process of acquiring more powers and not losing powers. He felt repealing section 13 would put the IEC in charge of the provincial legislature’s affairs.

The Chairperson said the IEC used a formula, but it had a minimum number of 30 seats and a maximum number of 80 seats.

Mr Mackenzie said if the IEC had been proactive in its communication about the actions in the next elections in 2024, it would have been a good idea to allow them to determine the number of seats in the province. However, they were not proactive, and as much as the benefits of having them in charge were understandable, he did not feel they would be a good option.

Mr Sayed was also uncomfortable repealing section 13 because of the several legal battles the IEC had recently been involved in. He suggested using the IEC formula of one seat per 100 000 people in the Provincial Constitution, and leaving the implementation to the provincial legislature.

Resolutions/Actions

Ms Murray asked for further research on how increasing the number of parliamentarians resulted in greater accountability and representation, looking at examples from developing countries with parliamentary systems similar to South Africa.

Mr Mackenzie proposed that the Committee invite the IEC to provide an update on their latest movements in determining the number of seats for provinces, as the country was gearing towards the 2024 elections. He also proposed that the Research Unit could look at other determinants for increasing the number of seats -- for example, the size of the province, population growth, etc.

Lastly, he asked if the Committee could deliberate further on the matters discussed in the meeting, and if they were allowed to add information to the report that it would submit to the Standing Committee on the Premier and Constitutional Matters.

Mr Marran asked if the amendment of section 13 needed to be considered.

The Chairperson said the mere fact of the creation of the Ad Hoc Committee suggested that section 13 may either be amended or repealed.

Mr Marais said the Committee should pass a resolution allowing the province 71 seats, and there should not be a debate about that.

The Chairperson was sceptical of determining the number of seats in the meeting, and said that the general agreement among Committee Members was to use the IEC formula. He asked that further research be done to determine whether there were already other governance structures worldwide that implemented creative ways of establishing parliamentary seating.

Mr Mackenzie asked that the research be left to be done by the Standing Committee on the Premier and Constitutional Matters.

The Chairperson agreed. His impression was that the Committee would make a recommendation for a Constitutional change -- whether an amendment or removal of a section -- and the Standing Committee would handle the practicalities of public participation and so on.

Mr Marais said the process needed to be taken step-by-step, because it could take a long time, especially if the province gained more seats.

Mr Sayed agreed with Mr Mackenzie that the Committee needed to focus on the amendment, and leave the technicalities to the Standing Committee.

Adoption of Committee minutes

The Committee considered and adopted the draft Committee minutes dated 8 June, with no amendments.

The meeting was adjourned.