Electoral Amendment Bill: deliberations & requesting permission from NA to extend the scope of the bill
25 August 2022
Chairperson: Mr M Chabane (ANC)
Tracking the Electoral Reform Legislation in Parliament
In this virtual meeting, the Committee adopted the A list of the Electoral Amendment Bill.
Following this, the Parliamentary Legal Advisor informed the Committee that it may have affected material amendments that the public may not have had an opportunity to engage with. In the 2018 South African Veterinary Association (SAVA) judgement, the Constitutional Court questioned to what extent Parliament had made material or substantive changes to the Bill that may require further public participation. This Committee is now in a similar situation and needs to reflect on all the changes it has made to the Bill. It needs to consider whether the changes are material and/or substantive enough to justify the Committee seeking permission from the National Assembly again. It may have broadened the Bill’s scope further from that which the Executive introduced.
In light of this, he advised the Committee that several amendments were material. As a result, the Committee should seek permission from the National Assembly to extend the scope of the Bill and there should be additional public participation – for a limited period – relating to those amendments.
The Committee agreed to the recommendations.
Electoral Amendment Bill
Adv Suraya Williams, Principal State Law Advisor, Office of the Chief State Law Advisor, took the Committee through the A list of the Bill containing the proposed amendments.
The definition of ‘person’, which means a natural person, was included.
A new clause was inserted between clause 3 and 4. There are a number of new clauses that have been inserted into the bill and they will be renumbered.
Among other amendments, Schedule 1A was amended to include:
4. 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.
Ms L Tito (EFF) asked for clarification about whom the ‘interested parties’ referred to in Item 4.
Mr Sy Mamabolo, CEO, Independent Electoral Commission (IEC), said that Item 4 relates to the distribution of the 200 seats for the nine regions. The Commission ought to take into account the registration of voters, as well as invite public comment from interested parties. The Committee would recall that policy-making within the state apparatus has got to follow the invitation of public commentary. The ‘interested parties’ merely means publishing one’s intention, inviting people to comment on the matter, and then making a final decision. It is part of the public participation impulse that is inherent within South Africa’s constitutional architecture.
Adoption of the A list
Mr K Pillay (ANC) thanked the teams for finalising the document. It is a historic moment for the Committee. He moved to adopt the A list. The Committee has deliberated for months on end and looked at all of the necessary items, clauses, etc. He was confident that the Committee had exhausted the matter and he supported the adoption of the A list.
Mr A Roos (DA) pointed out that he had stated the DA’s objection to certain clauses and amendments over and over again. The DA was therefore unable to support the proposal to adopt the A list.
Ms Tito said that the EFF also objected to the adoption of the A list.
Ms T Legwase (ANC) seconded the adoption of the A list.
Ms M Modise (ANC) supported the adoption of the amended A list.
The Chairperson said that in their last meeting, all Members considered the A list a true reflection of the deliberations that had been carried out during the recess period.
Further public participation and the extent of the materiality of the new amendments
Mr Siviwe Njikela, Senior Parliamentary Legal Advisor, Constitutional and Legal Services Office (CLSO), said that he has an issue which they raised in their first presentation to the Committee. The issue relates to the extent of the amendments. They had raised earlier that depending on the extent of the amendments, the Committee would have to consider two issues. The first relates to Section 59 of the Constitution. It obligates Parliament to facilitate public participation. The second relates to Rule 286 of the Rules of the National Assembly, which speaks to broadening the scope of a Bill. These call for value judgement on the part of the Committee. Section 59 obliges Parliament to facilitate public involvement in its law-making process. They have done a very thorough process up until now to engage the public. There were public hearings and public submissions and these were considered.
However, now they may have effected amendments that the public may not have had an opportunity to engage with. He had looked at the 2018 South African Veterinary Association (SAVA) judgement where only one amendment was made, and it was to the Medicines and Related Substances Amendment Act. The Constitutional Court questioned to what extent Parliament had made material or substantive changes to the Bill that may require further public participation. This Committee is now in a similar situation and they need to reflect on all the changes that they have made to the Bill. It needs to consider whether the changes are material and/or substantive enough to justify the Committee seeking permission from the National Assembly again. It may have broadened the Bill’s scope further from that which the Executive introduced. This is an Executive Bill. It is possible that the amendments may have broadened the scope of the intended Bill. For instance, there was a cooling-off period and the Committee agreed to completely overrule this. This could be seen as a substantive amendment. There is a new proposal for multiple regions for independent candidates. This was not in the initial Bill and now it is proposed that independent candidates will be allowed to contest in multiple regions. How substantive is this change, particularly when looking at the SAVA judgement? This is the assessment that the Committee needs to make now. They might have to seek permission from the National Assembly to broaden the bill. Rule 286 states that if the Committee intends to broaden the Bill, it must receive the National Assembly's permission. The Portfolio Committee on Health decided to include veterinarians in the Medicines and Related Substances Amendment Act. They only inserted one word – ‘veterinarians’ – and there was a big fight about it. The Constitutional Court decided that, because it is an entirely new provision, Parliament should have gone back to the public and allowed them to comment on that. That provision was found to be invalid and unconstitutional. Some have suggested that this Bill can now be sent to the NCOP. The Constitution is clear that Parliament is composed of two Houses. Each House has its role to play, depending on the classification of the Bill. This Bill has been tagged as a Section 75 bill, and the implication is that it is not a Bill that significantly affects the provinces. The responsibility cannot be shifted from the National Assembly to the NCOP.
He suggested that, given the amendments, it would be appropriate for the Committee to decide whether to advertise the new amendments. It could be for a short period of time. It did not have to be public hearings. Written submissions may be sufficient, and it would allow the public to engage with the changes. This Bill is a matter of great public interest. It can be seen from the submissions and the public hearings that this matter affects the majority of the public. The Committee could publish the amendments and allow for written submissions on the amendments themselves, and not the entire Bill. He is fully aware of the time pressure and the fact that the Committee had to go to the Constitutional Court and seek an extension to do a thorough job on the Bill. However, short-circuiting the process is not a solution. They could end up jeopardising the 2024 election. The Committee is entitled to assess the materiality of the changes that it has proposed. However, he suspects that some substantive amendments have been made to the Bill which may justify another round of public participation.
Ms Telana Halley-Starkey, Parliamentary Legal Advisor, CLSO, said that some sections may require permission from the House. Rule 286, 4(c) does say that when Parliament proposes changes to other sections of the legislation, they need to seek permission from the House. This includes adding new definitions such as ‘person’ and the amendment to party liaison committee, which is now the political liaison committee. The deletion of Section 36 of the Electoral Act, which was the section dealing with candidate nominations that do not comply with Section 27. The amendments to Section 20, 39.1(b), 58, 59, 62, 64, and 66. These are all amendments that deal with agents and political liaison committees. The amendment to Section 96, 2(c), which was the forfeiture of deposits. These are all new amendments that weren’t in the original Bill.
The Chairperson thanked the Legal Advisors and said that this is an issue that they had been warned about before. The Committee needs to complete the A list and tackle any other issues that may arise, but it needs to do so according to the Constitution and House guidelines. The Committee needs to consider the areas of the Bill that Mr Njikela and Ms Halley-Starkey identified. Deliberations still needed to continue at the level of the NCOP. He fully agreed that the Committee needs to seek permission from the National Assembly. The Committee also needs to consider the issue of inviting written submissions within a shorter time period. The Committee needs to consult the public on the new changes.
Mr Pillay said that the Committee needs to be briefed on the legal and parliamentary processes. The Committee went through an extensive public participation process on the draft Electoral Amendment Bill. The Bill was presented to South Africans. His understanding was that the Committee took those submissions, deliberated and then reached a certain decision. In doing so, a lot of what is in the A list is based on feedback from the public. For example, the three-month waiting period is something that the public did not agree with and it was taken out. This occurred with other items. The Committee took the feedback, deliberated on it and made changes accordingly. Some items do not warrant opening public participation again. However, he is open to being guided on the legal procedure as many items have been changed. To open up public participation again would be a “slap in the face” to those that have already given their input. What was the purpose of running the process in the way that it was run, if they are going to have to open it up to the public again? However, he is willing to be guided on this matter. In everything that they do, they need to avoid any kind of litigation. He may just need to be appraised in terms of the procedure. If the right procedure is the one Mr Njikela suggested, he supports it. If this is the case, then it needs to be within a shorter time period as they also need to be fair to the NCOP. They are supposed to be starting their deliberations soon. They also need to keep in mind that this needs to be finalised before the end of December, as per the extension. If they will call for comments, they need to do so now and finalise this process. If the correct legal procedure is to go this route, then he supports it, but it needs to be done quickly.
Mr Roos said that this process needs to be beyond reproach. He heard Mr Pillay’s opinion about some of the changes derived from public input. However, some material changes have been introduced. The NCOP can make technical adjustments but not substantial ones. It is in their mandate to make sure that any substantive changes are made within this Committee. It needs to go to the National Assembly for permission to broaden the scope and go through shortened facilitated public participation. The emphasis needs to be on MPs from areas that do not necessarily have access to the internet. This will ensure that all South Africans understand the changes and have a fair chance to give their input. After this, the Committee will consider the input. He supports this process.
Ms Modise said that the Committee takes counsel from Parliament’s legal services. If they say there are significant material changes and a constitutional requirement to take it back to the public, then that is a process they can not evade. How long should this process be? Mr Njikela said they do not have to conduct public meetings and can do oral or written submissions. What should be the timeframe for this? They need to be mindful of the limited time.
Mr Njikela said that they had assessed the amendments. Regarding the SAVA judgement, the Constitutional Court determined the extent to which the amendments changed the Bill before the Committee. They assessed whether they were material changes. It could be something as small as one word, such as in the SAVA case. There is no threshold for it and it is determined on a case-by-case basis. This is the situation that they find themselves in now – whether the changes that the Committee has made are material. Not all of the changes are material, so they have done an assessment. There could be differences in opinion on which changes are material. Mr Pillay used the example of the cooling-off period. The cooling-off period was a provision in the Bill and the Committee decided to take it off. His view is that this change is material, as the provision was not amended but completely removed. People could differ because there is no threshold for what a material change is. There was no provision for multiple regions, and now the Committee has decided that an independent candidate must be able to contest multiple regions. There are differing views on this and they may not have been engaged with during the public participation period. These are examples and he accepts that some will have a different opinion. As legal advisors, it is their job to put these issues on the table. They are subject to the direction of the Committee, but they would be failing in their responsibility if they did not tell the Committee to consider these issues. If they follow the correct procedure, and there is a challenge against the Bill in the future, the Committee will be able to have a concrete defence. It may appear cumbersome, but these procedures have to be gone through and debated.
There has been very extensive public participation on this Bill. If there needs to be another round, it must be limited to the material and significant amendments the Committee has made. The consequential amendments do not need to be commented on. Comment can only be limited to material changes, as the public may not have anticipated these changes when giving their input. It does not have to be fully-fledged public participation. They can invite written submissions within 14 days and the Committee can then consider those and make a decision. This is what they have taken away from the SAVA judgement. When a Committee makes material changes, they need to allow the public to comment on them. Public participation can be shortened as long as the public is given proper notice. 14 days would be adequate given the timeframe that the Committee has to stick to. They cannot compromise the NCOP because it still has to go through its own deliberations. It needs to be allowed a chance to go through its own processes. They will share their assessment with the Secretariat so that the Members can see which changes could be considered material.
The Chairperson asked if this issue could have been raised earlier on in the course of the deliberations. Is it correct procedure to have waited for the A-list to be adopted, and then to ask for permission from the National Assembly? Or could this have been done at an earlier point?
Mr Njikela said that Rule 286 addresses the matter of a Committee that intends to broaden a Bill or decide that they need to incorporate other amendments. In this case, there are two options. The Committee could have made an appeal upfront that it wanted to broaden the Bill. Or, after deliberations and the decision to adopt the amendments, the Committee can then appeal. That is why they waited for the Committee to make a concrete decision about the amendments and whether they would be adopted. There can either be a decision upfront that the Bill will be broadened or after deliberations, the Bill could have been broadened unintentionally. In both cases, an appeal must be made. This is where the Committee currently is in the process.
The Chairperson said that he wanted to make sure that they all had the same understanding that, earlier on, the Committee could not have been in the position to know that it was going to broaden the Bill and make material changes. There was caution from a Content Advisor earlier that they may need permission from the National Assembly. The Members’ input has indicated that they need to seek permission and enter another shortened round of public participation on the amendments.
Mr Adam Salmon, Committee Content Advisor, said they would proceed with the advice and begin with the request for the additional scope. They will also begin advertising for further public participation and develop a draft programme accordingly.
The Members agreed to this process.
The meeting was adjourned.
Chabane, Mr MS
Legwase, Ms TI
Modise, Ms M
Pillay, Mr KB
Ramolobeng, Ms A
Roos, Mr AC
Tito, Ms LF
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