Electoral Amendment Bill: further deliberations; with Deputy Minister

Home Affairs

04 October 2022
Chairperson: Mr M Chabane (ANC)
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Meeting Summary


Tracking the Electoral Reform Legislation in Parliament

The Portfolio Committee on Home Affairs met on a virtual platform with the Department of Home Affairs (DHA), the Electoral Commission (IEC) and legal advisors deliberate and finalise outstanding issues on the Electoral Amendment Bill.

The Members agreed that the definition of ‘person’ should be amended to mean ‘citizen.’ They also determined that the signature requirement should be lowered to 20 percent and that the term ‘political liaison committee’ should remain. There was also consensus that votes would not be able to be aggregated, and that vacant seats will be filled by the independent candidate or political party with the next highest proportion of votes. The draft proposals made by the IEC in the last meeting would also be incorporated into the A-list.

The Committee agreed that the A-list would be finalised in the next meeting on Friday.

Meeting report

The Chairperson greeted everyone.

Today, the Committee was going to reflect further on the summary of written submissions and the responses that they received the previous week. Not many new issues were raised in the submissions. The Committee was going to address these issues so that it can adopt the A-list in the next meeting. There were a few areas in which Members, the Department of Home Affairs (DHA) and the legal team had to consult and interact with some of the issues that arose in the last meeting. In today’s meeting, they will resolve these issues so that the team can prepare the A-list. It will soon be time to present a report to the National Assembly and they are running out of time. The NCOP still needs to interact with the Bill.

Submission summary and questions Electoral Amendment Bill A-list

Mr Adam Salmon, Committee Content Advisor, took the Members through the summary of the submissions and responses. Some of the issues included, amongst others:

Clause 1

Participants took issue with the definition of “person” to mean a “natural person.” They proposed that this be amended to mean “citizen” to be consistent with the constitutional targeting of the citizen as the primary recipient of political rights. Parliament’s Constitutional and Legal Services Office (CLSO) advised that “person” cannot be defined to mean “citizen” as the term “person” as used in the Act is not restricted to only “citizens.” The DHA supported the use of the word “citizen.”

The submissions also took issue with the term “political liaison committee” and argued that it should be replaced with “Partisan Liaison Committee and/or Non-Partisan Liaison Committee.”

Clause 4

The issue of a deposit that needs to be paid by contesting candidates was also not supported in public submissions. Some argued that there should not be a deposit requirement at all, while others argued that a deposit amount must be included in the Bill.

Clause 10

The Bill currently states that vacancies for independent candidates will be filled through a recalculation. Submissions said that the re-calculation method used is unfair, and that it will favour larger parties. They recommended providing for a running-mate system or holding by-elections instead. The CLSO responded that by-elections are not practical during a term, as they are administratively burdensome and costly. Based on the submissions, the IEC proposed additional refinements to optimise the seat calculation formula. These refinements concern Item 7 2(a) and (b), Item 12(d), Item 22, and Item 23.

This clause also states that independent candidates contesting in more than one region cannot aggregate their votes. Submissions argued that the discarding of non-aggregated votes goes against the principle of political parties and independent candidates being equal. Independent candidates’ votes being discarded in provinces due to them not being aggregated could distort general proportionality in a particular region. The CLSO responded that this provision could arguably be interpreted as infringing upon section 19 (3) of the Constitution. The CLSO has provided the Committee with extensive advice on the limitation of rights - i.e. that if a provision differentiates between people or categories of people (ICs and Parties), it must bear a rational connection to a legitimate government purpose or it will be deemed unconstitutional. Therefore, the question is, what is the purpose behind preventing an IC from aggregating its votes? The Committee needs to provide this answer. The IEC responded that South Africa’s electoral system is ranked among the most proportional in the world. There is no electoral threshold, meaning that relatively few votes are wasted.

(See the presentation for more detail).

Input by CLSO, Departments of Justice and Constitutional Development & Home Affairs
Adv Siviwe Njikela, Senior Parliamentary Legal Advisor, CLSO, said that his understanding was that today they would be dealing with the outstanding issues from last week’s meeting. These would be the decisions that the Committee still need to make given the second round of public submissions. That is how his team has approached the matter. He thought they would assist the Committee in deciding the outstanding issues. Based on the presentation, it seemed like this was not the case and they are going further back than last week’s meeting. This is worrying.

In their presentation last week, after consultation with the IEC, there was a proposal for a change in the definition of a candidate and an independent candidate. This suggested change was the inclusion of the words “natural person.” The Minister expressed concern about this. The CLSO committed to the Committee that it would reach out to the DHA over the concern. They subsequently discussed this with the Department. They understand the objection better now. They are now in a better position to accommodate the Minister. It was suggested that “natural person” needs to be qualified with the phrase “a natural person who is a citizen” to clarify that a natural person does not mean any person. The team discussed this. There was a view that this is unnecessary because of section 19 and section 6 of the Electoral Act, but to avoid doubt, they agreed that this phrase could be included. The gap between themselves and the DHA has now been closed. Communication from the Department still refers to section 1.4 of the A-list. If the Committee accepts the proposals presented last week, the definition of a ‘person’ from the A-list needs to be removed and replaced with this new definition. In their discussion with the IEC, it became clear that the idea was never to define the person, but to clarify that a candidate may only be a person.

There remain other issues that the Committee needs to decide on so that his team can move on with the A-list. This includes the issue of the party liaison committee. It has been deliberated by the Committee quite extensively. With the input from the IEC, he understood that the Committee had agreed to keep the Party Liaison Committee (PLC) so that the IEC does not have to amend its own Standard Operating Procedures (SOPs) and regulations. However, this issue has come up again in the submissions. Last week, there was a discussion about using the term “liaison committee” instead. There needs to be a firm decision on this.

There is also the issue of the threshold for the independent candidate. Initially, the Committee had decided on 30 percent. There have been concerns that this is too high. In last week’s meeting, they spoke about lowering the percentage to 20 or 25. They need a decision on this as well.

Additionally, the Committee had decided that the aggregation of votes would not be included in the Bill. The issue has come up again in the second round of public consultations and submissions argued that Members had not fully considered the implications of this now that candidates can contest in multiple regions.

Last week the IEC made drafting proposals. These do not, in any significant way, change the Bill. These amendments merely clarify any issues that may have arisen. They would like the IEC to put these proposals forward to the Committee so that Members can decide on the critical issues for finalising the A-list.

Ms Sarah Govender, Senior State Law Advisor, Department of Justice and Constitutional Development, said that they agree with Adv Njikela about the outstanding matters that require decisions. Concerning the signature requirement, there seems to be a disproportion in the number of signatures independent candidates require. However, this is for the Committee to decide.

Mr Njabulo Nzuza, Deputy Minister of Home Affairs, said that the DHA raised an issue in the last meeting and sought legal advice. They have since spoken to Adv Njikela and his team. This issue was the inclusion of “natural person” instead of “citizen” in the Bill. Their view was that this was too broad and would create issues where non-citizens would use this loophole to argue that they qualify to contest elections. They also needed to look at the Constitution and how it views a person/natural person. The Constitution makes it clear that it refers to every citizen with the right to stand for public office. They then had a meeting with Adv Njikela and they were able to find a solution. It is clear that the Bill is referring to a citizen and not just any person. He hopes that the Committee will consider this when finalising the A-list.

The Chairperson said that in the last meeting, they indicated that they would come back and deliberate on these issues further. The Committee has already dealt with some of the issues raised in the presentation. That is why they issued a written submission on particular issues; they have since deliberated on these issues and made a decision, such as the demarcating of districts and the constituency-based electoral system. The Committee has already resolved these issues. They need to move forward in the frame of these issues that have been dealt with.

Mr K Pillay (ANC) said that the ANC supports using the word “citizen.” He did not see a need to add “natural person” after this. “Citizen” sufficiently covers it. They could include “registered to vote.” The suggestion of “liaison committee” is simple, easy to understand and covers all participants. Using “partisan” and “non-partisan” will be confusing and too long. There was discussion about removing the term “political” from “political party.” He agreed with this and thought that it was in line with the Constitution.

The issue of seat allocation is important. There was a proposal that seats should be allocated to an Independent Candidate that receives the highest proportion of votes, and not the highest number. The reason behind this proposal was clearly outlined and explained, such as in provinces where there is a higher number of votes because the population is larger. It could be disproportional if the highest number of votes is used, and not the highest proportion of votes. It should be changed to the highest proportion.

He also supported having three ballots. It is fair. They have deliberated on the threshold, and the ANC strongly believes that 30 percent would have sufficed. However, in light of the submissions made and the discussions had, the ANC will support 20 percent to ensure that it is a fair process and that no one is excluded. This should not be reduced any further. The principle of deposits should remain in the Bill and the IEC should determine this. The Bill states that where there is a vacancy, a political party or the next IC will be allocated the seat. Item 23 says that if any independent candidate or party member should stand to lose a seat during the recalculation, the party or independent will retain the seat. This sufficiently covers the concerns that were raised over recalculation.

They have deliberated much over the aggregation of votes and it has been clear that compensatory seats are only in respect of political parties. This is not something new. This is how current local government elections are run. Independent candidates only contest a ward and not the PR listing. The same thing applies here. Independent Candidates can contest provincial legislature and province to national. Political parties do not aggregate votes concerning province to national. When a political party sends a candidate from a region or from province to national, it is sent from a list. The votes are only for that particular region or province, where the seat allocation is calculated based on the votes received in that particular region or province. If that is how parties are sent to the NA via regional votes, then it cannot be different for independent candidates. Political parties do not have an aggregation of votes regarding regional seats. Political parties and independent candidates cannot be treated differently. They have maintained this principle from the beginning.

Ms M Molekwa (ANC) concurred with Mr Pillay. It is important to take note of the issues raised by Adv Njikela so that the Committee can move forward with the Bill.

Ms L van der Merwe (IFP) said that she listened carefully to the explanation that the Deputy Minister provided. She agreed that they should use the term “citizen” as it would be more explicit. The compromise of using ‘a natural person who is a citizen’ would suffice. With regard to the number of signatures required for political candidates, it is the IFP’s view that the number should be 10 or 15 percent. She has expressed this in the past, and at the time she was very far off from the Committee’s proposal of 50 percent. Although they compromised on 30 percent, the IFP’s view remains that 10 or 15 percent is sufficient. 30 percent is not a fair amount. It will discourage many independent candidates from participating in elections. It is a very high threshold, considering other checks and balances such as the deposit. She supported using the phrase “liaison committee” as it is more inclusive. Deposits should be retained and should remain at the discretion of the IEC. She agreed that they should keep filling vacancies as is, and let the next independent candidate or party fill in. The three ballots should remain.

Ms L Tito (EFF) said that she agrees with the Deputy Minister on using the word “citizen.” They mustn’t cause any confusion. The EFF still supported a signature agreement of 30 percent. The deposit amount must be the same for political parties and independent candidates. With the other issues, they agree. It is only on the issues of the signature requirement and the deposit that they disagree.

Mr A Roos (DA) said that it makes sense to use “citizen”, unless there would be a reason where, later on in the Bill or some other legislation, it says that a person who disturbs an election must be liable to imprisonment etc. This doesn’t seem to be the case here. It seems to just be talking about a person as a candidate, so it makes sense to use “citizen.” The reason why “political liaison committee” was suggested is because there is a lot of documentation that would need to be changed if the acronym was changed. If it became a liaison committee, all the references to PLC would now have to be LC. That is why the Committee initially decided to leave it as political liaison committee. ‘Partisan’ means someone who supports a position or cause. To use ‘partisan’ and ‘non-partisan’ to differentiate between political parties and independents is incorrect. To say that independents do not support a cause is incorrect. The Committee had already resolved to call it a political liaison committee. He does not see a good reason to change that. The DA has always held the position that independent candidates need to be able to contest as political parties do. However, in this case, an independent should choose a region and should not be able to contest in multiple regions. For example, he is an elected representative of the Gauteng province. He lives in that province and represents his constituency and its issues. Independent Candidates need to choose a region, stand in that region and represent their constituency. There is an argument that there needs to be a constituency system and there needs to be accountability, and there is also the argument that they should be able to stand across provinces. These two arguments are difficult to marry. As Michael Atkins points out, there will be a problem with calculation and re-calculation if independents are allowed to stand in multiple regions. Using districts and metros as constituencies requires a demarcation process that they have debated over for a long time and don’t have time for before the next election. The DA still proposes that the Bill have a Sunset Clause that says that after the 2024 election, full electoral reform can take place. Independents should not be prohibited from standing in more than one election. They need to choose between a provincial legislature list or a region-to-national assembly list. At the end of the day, they are representing their area in either one of these.

The DA did not agree with associations and the Committee holds the same view. If independents want to associate with others, they can form a political party. The issue of ‘political party’ or ‘party’ is an issue of semantics. The Committee agreed to remove the word “qualifications” as this may seem to refer to academic qualifications. The IEC presented the issue of signatures and said that the lowest reasonable number would be 20 percent. The DA supports this figure. Independents should pay a deposit as there are additional costs for each additional candidate. This deposit is returned. If an Independent Candidate is sure that they have the constituency, and they are a serious candidate, they should expect to receive that deposit back when they are elected. The DA supports the suggestion that independents should provide a declaration confirming that they are residents of the region. They already agreed that remainders shouldn’t accrue. Once an independent has a seat, then they shouldn’t be able to transfer the remainders to somebody else. If an independent wants to associate with somebody else, they do have the option of forming a political party. The issue of a bias towards larger parties has been raised. He has said before that they should receive a presentation in this regard if there is a possibility of a large mathematical challenge. The IEC has assured the Committee that there isn’t, in terms of proportionality and calculation/recalculation, heavily favouring larger political parties. It would be good for the Committee to consider this and to assure themselves that this is not the case. The New Nation Movement judgement called the municipal system a permissible system under the Constitution. If one looks at this system, it is similar to what is being suggested here. There is a PR list which involves parties, like the municipal system, and independent candidates stand for election in wards, which in this case, the equivalent would be a region/province. In the municipal system, one wouldn’t expect that an independent’s votes are aggregated across the wards to allow that candidate to get a seat in council. They would have to get enough votes to get the seat.

Votes should not be aggregated. Three ballots are needed – a PR list, a region-to-national and a provincial legislature list. The input about 66 district-based regions would be provided if they included a Sunset Clause. His understanding is that NCOP delegates are proportionately sent from the regions, including independents. They have agreed that the next highest IC or political party will fill a vacant seat. There is a comment in the input that a vote for an independent candidate is a vote against a political party. This cannot be said for sure. Someone could vote for an Independent Candidate purely because they like that particular candidate. It is fairest that the Independent Candidate or the political party with the next highest number of votes gets the seat.

Ms T Legwase (ANC) agreed with most of the issues that have been raised by Mr Pillay. However, she did agree with Mr Roos that it should be kept as political liaison committee to avoid confusion.

Ms A Khanyile (DA) said that she is in support of using the word “citizen.” She also supported a signature requirement of 20 percent. She did not want to make it difficult for independent candidates to contest elections. However, they also need to demonstrate that they have enough support to be able to enter the election. They also cannot have a very long ballot paper. On the other issues, she has been covered by Mr Roos.

Ms M Modise (ANC) said that she agreed with Mr Pillay. It is important that the Committee reaches a consensus. It is clear that they are all in agreement on most issues. They may not agree word for word, but in essence, they have a consensus. She supported the term “political liaison committee” so they did not have to amend the other documents. The Committee is in a position where they can move forward with the Bill and finalise the A-list. They will soon be able to submit a report to Parliament. It has been a lot of work and a long journey. They have given the public enough time to give their input. They need to move forward now and be mindful of the final deadline. They shouldn’t rush forward but have devoted enough time to consider the submissions.

The Chairperson said that the Committee had reached a consensus on most issues discussed. They agree to amend the definition of “person” to include “citizen.” The prevailing view is that political liaison committee should be kept as it is. Various signature thresholds have been suggested. Two months ago, there was a presentation by Adv De Beer on the limitations of participation of independent candidates. There needs to be a reasonable percentage. 20 percent seems to be agreeable to most Members and they will need to consider this. There is a firm agreement that votes will not be aggregated. They agree on the vacancy issue: a vacant seat will be filled by the Independent Candidate or political party with the next highest votes. These are the key areas that the Committee deliberated.

Mr Roos has said multiple times that he would like a presentation from the IEC on the calculation methods used. The IEC committed to doing this. This matter can be dealt with now that the Committee has reached a consensus on the issues deliberated today and they can begin preparing the A-list to be finalised. Members have had different views that they have expressed. This demonstrates the work and care that has been put into this particular matter, which is so complex. They have managed to navigate these issues. The Members have carried the issues raised in the submissions forward and looked at the Constitutional implications of these issues.

The Committee should not resolve the matter of the Sunset Clause. It should be addressed by the National Assembly when the report is sent to them. All and sundry have given their views on the constituency electoral system. The Committee agrees that they have not decide on this matter.

Adv Njikela said there is still the issue of the drafting proposal made by the IEC. A decision still needs to be made on their proposals.

The Chairperson asked whether, in the meantime, the issues that the Members resolved today would be sufficient to move forward with the A-list.

Adv Njikela said that the Member’s discussion covered the issues he raised earlier in the meeting.

Mr Masego Shaburi, Deputy Chief Electoral Officer, IEC, said that the IEC did not have anything new to add. The CEO presented draft proposals in last week’s meeting. They are waiting for the Commission’s approval. Once they receive the approval, they will then incorporate it into the draft of the Bill. Copies were circulated to the Members. Is his understanding correct that Mr Roos wants the IEC to respond to what was submitted by a member of the public, and that he will not be submitting any mathematical equation that they need to test?

The Chairperson said that Members accepted his draft proposals. The IEC has, on multiple occasions, presented on what Mr Roos has raised. There is nothing new that the IEC needs to present to the Committee. Mr Roos is requesting a refresher on seat allocation mathematics and calculation. Mr Roos holds a different understanding of the IEC. The Committee has already taken a stance on this matter.

Mr Roos said that the presentations they received from the IEC were about the droop system and how it works. The public submission here concerns how the reallocation of seats unfairly changes things. He has not seen a response to this from the IEC. The submission was lengthy and in-depth and it said that it was an unfair method. It was public input, not his input. He was asking the IEC whether they were going to respond to this input.

Ms Janet Love, Vice-Chairperson, IEC, said that the CEO made a very careful presentation in the last meeting. He outlined the considerations in making calculations for proportionality. If they understand proportionality as being something that reflects as comprehensively as possible the fact that everybody’s vote counts equally, there are certain things in coming to a quota that will have to be balanced. The first is going to be the density of the population of a particular area. The second is the number of areas where one begins to have a calculation. If there are more, then the proportionality would change. If there are fewer, then the proportionality would change as well. This is in the document. The question is whether or not they have something more substantive beyond what they have already explained that they are being asked to respond to. If Mr Roos or any other Member would like further one-on-one discussions to get further clarity, the IEC is very willing to do so. They have responded in writing and made it clear that there is no such thing as absolute or perfect proportionality. It is a balancing act. This is why Mr Shaburi asked if there was anything else that Members would like them to respond to because it is an issue that keeps on being raised. In the last meeting, the CEO did respond to the member of the public who raised this formulation and this specific set of calculations. They gave a document in response to this.

Mr Pillay did say in his earlier submission that there is a clause that ensures that no one can lose a seat due to recalculation. If it is going to make Mr Roos more comfortable, they could receive a refresher on this in their next meeting. He has changed his mind; they should keep the term ‘political liaison committee’ to avoid extra costs and having to alter the documentation.

The Chairperson told Adv Njikela that his team could prepare the A-list to be presented in their next meeting so that the Committee can consider adopting it. As Mr Pillay suggested, he proposed that they do a refresher on the recalculation matter in their next meeting. He noted that the IEC has already sufficiently dealt with the matter. He did not think there should be a one-on-one meeting in case the wider society is interested in the matter. They must be able to say that the Committee sufficiently dealt with the issues.

Ms Govender sought clarity. Must the drafting proposals made by the IEC be included in the A-list? Is political liaison committee going to remain?

The Chairperson confirmed that this is correct.

The meeting was adjourned.


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