Electoral Amendment Bill: adoption

Home Affairs

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

Video

Tracking the Electoral Reform Legislation in Parliament

Tabled Committee Reports

The Portfolio Committee convened a virtual meeting to consider and adopt the Electoral Amendment Bill.

The Committee was tasked to amend the Electoral Act 73 of 1998 to allow independent candidates to contest elections.

The State Law Advisors read out each clause and the changes made where applicable. Members indicated they supported or rejection for each provision.

The Committee amended Schedule 1A (item 21). The item talked about how if one gets a regional to national and a provincial legislature seat, then one had two days to decide. If one did not respond within two days, then one forfeited those seats. Then one’s seat would be filled according to items 7 or 12. The Committee was informed that items 7 and 12 did not make provisions for that. And this technical gap was closed.

While the ANC supported the bill and the accompanying report, the DA and EFF did not support either.

The Committee noted the complex and contested nature of the bill. It added that once the bill is approved by the National Assembly, the National Council of Provinces will then begin its process, so that Parliament can meet the deadline that the court established.

Meeting report

Clause-by-clause deliberation: Electoral Amendment Bill [B 1A—2022]

Ms Suraya Williams, Principal State Law Advisor, Office of the Chief State Law Advisor (OCSLA), indicated that she and her colleague, Ms Sarah Govender, Senior State Law Advisor, OCSLA, would be presenting the A-list of the Bill. She pointed out that the reference to the page and the line numbers were not the references to the page and the line numbers in the B-list but instead referred to the page and the line numbers of the Bill as introduced. The B-list would reflect the amendments made by the Committee.

Clause 1
The State Law Advisor read out the provision.

The ANC, the DA and the EFF supported the amendments to the clause.

New Clause
Ms Govender presented.

The ANC, the DA and the EFF supported the amendment.

Clause 2
Ms Williams presented.

The ANC, the DA, and the EFF supported the amendments to the clause.

Clause 3
Ms Govender presented.

The ANC, the DA and the EFF supported the amendments to the clause.

New Clause
The State Law Advisor read out the provision.

Ms L Tito (EFF) pointed out that the document said section 30, but Ms Govender said section 20.

Ms Govender confirmed that section 30 was the correct section.

The ANC, the DA and the EFF supported the amendment.

Clause 4
Ms Williams presented.

Under item 8 of clause 4, she observed that it appeared that subsection 6 needed to be deleted.

Mr Masego Sheburi, Deputy Chief Electoral Officer (CEO), Electoral Commission (IEC) said that subsection 6 was proper, and would remain in the draft.

Ms Williams specified that she was referring to subsection 31E(6).

Mr Sheburi said that the IEC proposed that clause 4 should not be in the Bill. In its consideration of comments in July, the Committee took a resolution to delete section 30(6) of the Electoral Act, 1998 (Act No. 73 of 1998) (“Electoral Act”), which provides for instances where a candidate’s nomination does not comply with section 27 of the Electoral Act, the Commission or the Electoral Court may allow the registered party an opportunity to comply with that section, including an opportunity to substitute a candidate and to re-order the names on the list as a result of that substitution. 31E(6) was consequential on that decision; the clause ought to be removed. If it was not removed, it introduced a situation where the Bill would impact contestants in an uneven manner for no rational basis, other than that one was nominated by a party, and the other was an independent candidate (IC). It was also deleterious to proper preparations for an election. In the scheme of the Bill as it stood, there was a period for candidate nomination, and a person who met those requirements would stand as a candidate. There was a period of objection for those candidates, and if a person met the requirements, they would stand as a candidate. If the clause remained, it would prejudice people nominated by political parties, because they would not have as many opportunities to correct their defective candidate nomination as it did for ICs. If the clause remained in the Bill, it would create uncertainty about when candidate nominations closed, and the timelines included in the election timetable. The IEC was asking, consistent with the Committee decision of 22 July 2022, to remove clause 4 so that there was parity in the manner that the Bill impacted candidates. It would also procure a more harmonised reading of the Bill than was currently the case. The IEC’s proposal had the support of Parliamentary Legal Services (PLS), as well as the OCSLA. The IEC needed a process that clearly authorised clause 4’s deletion, consistent with the decision that the Committee took to delete section 36 in the original Act.

Ms Williams said that taking into account the IEC’s proposal, she read how the proposed amendment would be read. It was item 11, page 5 of the Bill as introduced, from line 52 to 55, to omit subsection 6. That would be added after item 10.

Mr K Pillay (ANC) said that in light of the changes, he supported the clause.

Ms M Molekwa (ANC) agreed with Mr Pillay.

Ms Tito said that on the part relating to having 20% of the quota for a seat, the EFF was not in agreement. The EFF also did not agree with the part of clause 4 that talked about the amount to be deposited by an IC. The EFF maintained its position that all ICs needed to pay the same amount as political parties. The EFF’s position was that there needed to be a 30% threshold.

Mr A Roos (DA) said that the DA did not support clause 4, specifically division 31A(1). The DA’s view was that as it was with party candidates, they should choose a region where they were going to represent the people on the ground, and stand in that one region.

The Chairperson noted the dissent of Ms Tito and Mr Roos.

New Clause

The State Law Advisor read out the provision.

The ANC, the DA and the EFF supported the amendment.

Clause 5

The ANC, the DA and the EFF supported the amendment.

New Clauses

Ms Govender presented. The clauses included the following amendments:
- Substitution of section 58 of Act 73 of 1998, as amended by section 10 of Act 18 of 2013;
- Amendment of section 59 of Act 73 of 1998, as amended by section 16 of Act 34 of 2003;
- Amendment of section 62 of Act 73 of 1998;
- Amendment of section 64 of Act 73 of 1998, as amended by section 18 of Act 34 of 2003;
- Amendment of section 66 of Act 73 of 1998, as substituted by section 19 of Act 34 of 2003.

[Please see the document for details.]

Mr Roos said that the DA rejected the amendment to section 58. There should be a minimum number of two party agents, of which one should be an opposition party agent. There should not be zero party agents at any voting station.

Ms Tito said that the EFF also did not agree with the amendment; it was also the EFF’s view that there should be two party agents per voting station.

Ms A Khanyile (DA) said that the number of party agents must not be zero. The DA believed that there needed to be a minimum number of party agents that were going to be at a voting station.

New Clause

Ms Williams presented.

The ANC, the DA, and the EFF supported the amendment.

New Clause

The State Law Advisor read out the provision.

The ANC, the DA, and the EFF supported the amendment.

Clause 10
The State Law Advisor read out the provision.

The ANC, the DA, and the EFF supported the amendments to the clause.

Clause 11

Ms Govender presented.

The clause dealt with the following:
- Substitution of Schedule 1A to Act 73 of 1998, as inserted by section 25 of Act 34 of 2003 and amended by section 8 of Act 55 of 2008.

The Schedule itself dealt with the following:
- National Assembly;
- Regional seats;
- Compensatory seats;
- Insufficient names on party lists and independent candidates provisionally allocated more than one seat;
- Provincial legislatures;
- Ballot papers;
- Designation of representatives of parties;
- Supplementation of lists of candidates of parties;
- Review of lists of candidates by party;
- Publication of supplemented and reviewed lists of candidates;
- Designation of seats of independent candidates;
- Vacancies;
- Definitions.

[Please see the document for details.]

Mr Roos made a point on Schedule 1A. He felt that there was something for the legal team to consider on the designation of seats of independent candidates. Item 21 talked about how if one gets a regional to national and a provincial legislature seat, then one had two days to decide. If one did not respond within two days, then one forfeited those seats. Then one’s seat would be filled according to items 7 or 12. He pointed out that items 7 and 12 did not make provisions for that. He had put provisional wording in the Zoom chat box. He felt that it was a technical gap that needed to be closed.

The Committee made similar amendments to item 22, and that was then included in items 7 and 12. The challenge was that if the situation in item 21 happened, and one went to item 7, then there was no provision in there for that scenario. To his understanding, one could not then carry out an item 7 or an item 12 process.

Mr Roos’s suggested wording read as follows:

“7(2)(c) If, following the provisional allocation in item 5, an independent candidate is finally allocated a seat in accordance with item 11(f) as well as in accordance with item 5(i), and such
independent candidate fails to indicate to the Commission the seat he or she elects to retain
or in which legislature the independent candidate will serve within two days after the said final
allocation, the independent candidate shall forfeit all allocated seats.

12(2) renumbered 12(2)(a)

Addition of clause 12(2)(b) If, following the provisional allocation in item 5, an independent candidate is finally allocated a seat in accordance with item 11(f) as well as in accordance with item 5(i), and such independent candidate fails to indicate to the Commission the seat he or she elects to retain
or in which legislature the independent candidate will serve within two days after the said final
allocation, the independent candidate shall forfeit all allocated seats.”

Mr Roos added that the DA had said before that the challenge it had with using a system where one re-calculates after the end of an election. Thus, the DA was against that amendment for that reason. It had given the input that after an election, the results should be closed. When a vacancy is created, the seat should be filled by the next party or candidate that would have received that seat.

The Chairperson observed that those points had been carried in the Committee’s deliberations.

Mr Pillay said Mr Roos’ suggested wording made sense. He asked for the legal team to give some input on item 21. The ANC was happy with that clause, but it made sense that with the current wording, there may be particular repercussions.

Ms Williams deferred to the IEC. The IEC had drafted those provisions, and it had the technical expertise needed to respond to the question adequately.

Mr Sheburi said that the IEC proposed that in item 21, after 12, it could qualify the relevant lines to make sure it makes a neat link with item 7 and 12. The regional and provincial calculation were performed in terms of item 7 and item 12 as though the seat was forfeited. He added that where the IC fails to indicate which seat they have elected to occupy, when the IEC removes the IC from both lists, it would make it clear that it would do a reverse calculation in item 7 and 12. It would ask Parliamentary Legal Services for proper wording, but it accepted that it could make item 21 more elegant and avoid confusion.

Mr Pillay accepted the clause in light of the amendments, as did other ANC Members.

The DA did not accept the clause.

The EFF did not accept the clause.

New Clause

The State Law Advisor read out the provision.

The DA, the ANC, and the EFF supported the amendment.

Long Title
The State Law Advisor read out the provision.

The DA, the ANC and the EFF supported the amendments to the Long Title.

Discussion

Ms Williams wanted to confirm the wording of item 21(2) in Schedule 1A.

The Chairperson said that Mr Roos had raised a point about that area, and Mr Sheburi had responded.

Adv Siviwe Njikela, Senior Parliamentary Legal Advisor, Constitutional and Legal Services Office (Parliament), said that it may be prudent to have the IEC's proposed wording on item 21, so it could be read into the record of that day’s meeting. It would then reflect as having been tabled in the meeting.

Adv Njikela suggested a break to give time to correct the wording in item 21.

Mr Sheburi said that the IEC proposed a draft phrasing that did not impact the sequence in the Bill and the A-list, and did not occasion any amendments to item 7 and item 12. He read the last sentence of paragraph 2: “...and provincial calculations performed in terms of the forfeiture provisions in item 7 and item 12, as adjusted by the context.”

The Chairperson asked which version of item 21 would be better-placed for recording purposes.

Adv Njikela proposed that the new wording that was going to be inserted be read on record in the meeting, so that when PLS inserted it, it knew that the Committee had agreed to the wording.

Mr Mosotho Moepya, Commissioner, IEC, said that the process was very important. He asked if there could be a five-minute break so that Adv Njikela could amend the wording.

The Members agreed to the break.

Mr Sheburi presented the new wording for item 21. The new item 21 read as follows:

Designation of seats of independent candidates

21. (1) If an independent candidate is finally allocated a seat in accordance with item 11(f) as well as in accordance with item 5(i), such independent candidate must within two days after the said final allocation, indicate to the Commission the seat he or she elects to retain or in which legislature the independent candidate will serve, as the case may be, in which event the independent candidate’s name must be deleted from the relevant other list and the recalculation performed in terms of the forfeiture provisions of item 7 or item 12 as indicated by the context.

(2) If an independent candidate fails to indicate to the Commission from which list such independent candidate will be designated or in which legislature an independent candidate will serve, such independent candidate’s name must be deleted from all the lists and both the regional and provincial calculations performed in terms of the forfeiture provisions in item 7 and item 12, as indicated by the context.

Mr Roos felt that the new wording closed a gap. Although he had also proposed an amendment, he was happy with the amendment that had been proposed. 

Mr Pillay supported the amendments presented, and accepted the clause.

Ms M Molekwa (ANC) supported the amendments presented, and accepted the clause.

Mr T Mogale (EFF) supported the amendment and accepted the clause.

Adoption of the A-list

The Chairperson observed that there were three main areas where the Members did not find each other. In the deliberation, that was highlighted, which was allowed in terms of processing, or in the Committee’s work of parliamentary discussions.

Ms Williams said that the OCSLA noted the proposals by the IEC, and would incorporate that into the Bill. It would be in the A-list and the B-list, and would then accurately reflect what the Committee agreed to that day.

Mr Pillay moved for the adoption of the A-list.

Mr Roos asked to note the objection of the DA.

Ms Tito asked to note the objection of the EFF.

Ms Molekwa seconded the adoption of the A-list.

The A-list was adopted by the Committee.

Report of the Portfolio Committee on Home Affairs on the Electoral Amendment Bill [B1 – 2022] (National Assembly – sec 75)], dated 12 October 2022

Mr Eddie Mathonsi, Committee Secretary, presented.

The Committee, having considered the subject of the Electoral Amendment Bill [B1 – 2022] (National Assembly – section 75)], referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 1A – 2022].

[Please see the document for details.]

Mr Pillay moved for the adoption of the report.

Mr Roos said that the DA agreed with the steps taken in the processing of the Bill, and that the report reflected an accurate representation of the process. But the DA could not accept the recommendation, and therefore he asked to note the DA’s objection.

Ms Molekwa seconded the adoption of the report.

Ms Tito said that the EFF did not support the report.

Ms Khanyile noted the report, and asked to note that the DA objected to the recommendation.

Mr Mogale was covered by what Ms Tito said.

Ms M Modise (ANC) supported the recommendation in the report, and seconded Mr Pillay.

Read: ATC221012: Report of the Portfolio Committee on Home Affairs on the Electoral Amendment Bill [B1 – 2022] (National Assembly – sec 75)], dated 12 October 2022.

The Chairperson thanked the Members for their participation in the complex process. Where Members differed, the Committee had managed to navigate the process. The discourse of electoral reform was being observed, and the Committee would allow Parliament to give an indication of other views that had been expressed by the public and non-governmental organisations (NGOs) on the ways in which they wanted electoral reforms to be carried out. He appreciated PLS, the OCSLA team, the Minister and the departmental team, the Ministerial Advisory Committee that advised on the Electoral Amendment Bill, the IEC, and its commissioners. He also thanked the team appointed by the Minister, which had initiated the discourse on electoral reform, which would ultimately provide two options that Parliament may need to consider. The Committee had been directed to correct the Electoral Act 73 of 1998, to allow adult citizens eligible to participate, or to be voted into provincial and national legislatures. The Committee appreciated all stakeholders. The Committee also knew that it was “contested terrain” when it came to the path of defining what must be a finality to the electoral system that South Africa must have. The Committee had managed to deal with the issues that were directed by the court. Once Parliament could pronounce on the new method to use in the new electoral system, it would give that accession.

The Chairperson wanted to draw attention to the issues raised by Ms Modise, Mr Roos and Ms L Van Der Merwe (IFP) during the process. Parliament may consider allowing a new system after the 2024 provincial and national elections. Once the Committee deposited the report to the National Assembly, the National Council of Provinces would then begin its process so that the Committee was able to meet the deadline on what the court had established.

Adv Njikela expressed appreciation to the Committee for its support of PLS throughout the Bill process.

Ms Williams said that on behalf of the OCSLA, she wanted to thank the Committee. It was a challenging Bill. The OCSLA initially got it from the Department just before Christmas. The issues were complex, and the Chairperson guided all involved through finalising the A-list and the B-list. She also thanked PLS, with whom the OCSLA worked closely in the finalisation of the A-list and the B-list.

Ms Janet Love, Vice-Chairperson, IEC, appreciated the extensive amount of time and work the Committee put into processing the Bill. The IEC appreciated the good working relationship with PLS and the OCSLA. It appreciated the work of Mr Mathonsi and Mr Adam Salmon, Committee Content Advisor in following up on administrative processes.

The Chairperson also appreciated the team lead by Dr Thulisile Ganyaza-Twalo, Unit Manager, Parliament, Mr Mathonsi and Mr Salmon.

The meeting was adjourned.

 

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