Electoral Amendment Bill: Department briefing; with Minister

Meeting report

Chairperson’s opening remarks

The Chairperson welcomed the Members and the Minister of Home Affairs. She noted that officials from the Independent Electoral Commission (IEC) and representatives of the legal teams from Parliament, the Department of Home Affairs (DHA), and the Office of the Chief State Law Adviser were also present in the meeting.

The Committee would receive a briefing from the DHA on the Electoral Amendment Bill [B1B-2022] (Section 75). This Bill was referred to the Committee on 20 October. It was a Section 75 Bill that had arisen as a result of a Constitutional Court judgment handed down in 2020. The Constitutional Court had declared the Electoral Act 73 of 1998 unconstitutional to the extent that it required that adult citizens may be elected to the National Assembly and provincial legislatures only through their membership of political parties. Further, it ruled that the declaration was prospective with effect from the date of the order, but was suspended for 24 months to give Parliament an opportunity to remedy the defect that gave rise to unconstitutionality.

The Bill aimed to address this defect in the Electoral Act to bring it into compliance with the Constitution. In the main, the Bill expands the Act to include independent candidates to contest elections in the National Assembly and provincial legislatures.

Parliament received an extension on the deadline for this Bill, which must be assented to by the President by 10 December to ensure that the elections take place in 2024.

The Chairperson informed the Committee that the task it was confronted with must be completed in record time. An intense draft programme had been developed for the Committee, which was being finalised. In the next meeting, the Committee would engage with the IEC on the formula used for calculating seats and other related matters.

She advised that the Committee should bear in mind the President’s response to the State Capture report, and the [recommended] change in the electoral system that had come out of that report.

Briefing by Minister of Home Affairs

Dr Aaron Motsoaledi, Minister of Home Affairs, said he was joined by two Senior Counsels, Adv Steven Budlender and his associate Adv Mitchell de Beer. This team helped draft the Bill, and they would take the Committee through it clause-by-clause.

He felt that it was his job to introduce the team and to introduce the debate, but most importantly, to pick up a few things which had been dealt with, even on the day that the Bill was passed.

There had been a massive mobilisation against the Bill by some non-governmental organisations (NGOs), civil society organisations (CSOs), foundations and even some churches. The mass mobilisation was due to the belief that there was something grossly wrong with the Bill.

He would like to explain how the Department had arrived where it was. He believed that it was for the National Council of Provinces (NCOP) to scrutinise the issues, to see if there was an area where amendments or corrections could be made.

Constitutional Court judgment

He said the New Nation Movement NPC and Others had gone to the Constitutional Court complaining that they wanted to participate in elections without having to join any political party, which was up to now the preferred method to put Members of Parliament (MPs) into Parliament and provincial legislatures. The Constitutional Court had ruled in their favour. It said that the Electoral Act 73 of 1998 was unconstitutional, only in as far as it did not allow adult citizens to participate in national elections on their own accord and without joining a political party. He emphasised that it was not the entire Act that was deemed unconstitutional. Section 19(3)(b) of the Constitution stated that every adult citizen had a right to stand for elections and, if elected, to take office. For all the years, that had been happening through the membership of political parties, until the Constitutional Court ruled that people had the right to not associate if they so chose.

Right from the beginning, the judge who had written this ruling on behalf of the majority, Adv Justice Madlanga, made it clear in paragraph 15 of the judgment that “a lot was said about which electoral system was better, which system better affords the electorate accountability, etc. That is territory this judgment will not venture into. The pros and cons of this or the other system are best left to Parliament which – in terms of sections 46(1)(a) and 105(1)(a) of the Constitution – has the mandate to prescribe an electoral system. This Court’s concern is whether the chosen system is compliant with the Constitution.” He quoted Adv Madlanga’s ruling verbatim, because it seemed to be one of the biggest debates that were taking place in the country. The judge was saying that if people wanted a particular type of electoral system and argued about its pros and cons, then that was not the area that the Constitutional Court had entered, and that was best left for Parliament to decide.

For those that were opposing the Bill, they argued that Parliament should have gone beyond the judgment and done what the people wanted, which was to have a constituency electoral system. It was said that this afforded electoral accountability.

In presenting the Bill to the National Assembly, the Department of Home Affairs decided to answer only two questions based on the judgment and based on the hard reality. The first question was whether the Bill would include independent candidates as contesters to elections in the National Assembly and provincial legislatures in 2024. That first question had been adequately answered by the Bill, in that independent candidates could indeed participate in the elections in 2024. In answering this particular question further, the Department assumed that the 2024 elections could never be postponed -- they had to take place, and this was cast in stone. He recalled that in the 2021 local government elections, the IEC had wanted the elections to be postponed due to the Covid-19 pandemic, but the court had said no. This confirmed the Department’s assumption that the 2024 elections were cast in stone. The IEC had further said that it needed a minimum of at least 18 months in order to run the elections smoothly, but unfortunately, they had already lost those 18 months.

Policy options

Faced with the realities, the Department had to choose which method it would use to incorporate independent candidates. At the beginning of this process, it developed a policy paper on elections. After studying elections worldwide, the Department selected 15 countries and studied their electoral systems. Five of those countries were on the African continent. It looked at the electoral systems to see what was good and what could be considered. After developing the policy document, it was workshopped by all the political parties. From there, he appointed a Ministerial Advisory Committee (MAC), chaired by the former Minister of Constitutional Development, Mr Valli Moosa. He had instructed the MAC, together with some academics and election practitioners, to use the policy document and consult with civil society and political parties, to see how best it could incorporate independence into the electoral system.

It was then indicated that the MAC, consisting of eight people, could not agree on one particular system. The MAC presented two options. The first option was to accommodate independence in the national and provincial legislatures, without many changes to the legislation. The second option was referred to as the mixed-member model, which incorporated single-member constituencies. In other words, this was an option whereby the country was divided into 200 single-member constituencies, and the other 200 seats had to come from the political parties, considering that there were 400 people in the National Assembly. The proposal was that 200 members, whether independent or from political parties, must come from 200 constituencies, and the remainder must come from political parties in the way it had been happening since 1994.

In answering the question further, the Department looked into the practicality of this proposal. At the present moment, South Africa does not have 200 geographic areas that could automatically be turned into constituencies -- they did not exist. This meant that the 200 constituencies must be demarcated right from the beginning. If the country had to be demarcated into 200 geographic areas, which would then be called single-member constituencies, then a Demarcation Act would have to be enacted through Parliament. This would be in the same way that there was a Municipal Demarcation Act, which was only for municipalities. The Department strongly believed that the Municipal Demarcation Act could not be turned into a demarcation port for the whole country, because it was specifically for municipalities. He emphasised this, because some people argued that the Municipal Demarcation Board should have been modified to turn into a National Demarcation Board. The Department did not think that this was appropriate.

It was believed that a Demarcation Act should be enacted through Parliament and that a National Demarcation Board should be chosen to start demarcating the country. Based on experience, this was not as easy as was said by the proponents of this argument. This could be explained through two examples. The first example was what happened in Vuwani, when demarcating the area into another municipality resulted in the entire place and its infrastructure being burnt down. The second example was that of provincial boundaries -- for instance, the question of the Matatiele provincial boundary dispute, which had not been resolved. When considering all of the above and what it entailed to divide the country into constituencies, it was the Department's response to say that this particular option was not practical, nor was it desirable if it wanted the 2024 elections to take place. This was a different story for those who thought the 2024 elections could be postponed, but the DHA did not believe that the Constitutional Court would agree to it being postponed. The Constitution ensured that elections had to take place within particular timeframes.

For that reason, the answer was to take the first option, which was to accommodate independents in the national and provincial legislatures, without many changes to the legislation.

Allocation of seats

Another question that needed to be answered was whether it was wrong, unconstitutional or immoral not to divide the country into constituencies. This has not been answered yet, because this was a debate for after 2024. It was a debate for the future. The debate was not closed, but the Department did not believe that this debate would be resolved in 24 months. Even with the extension the Constitutional Court had granted, it would still not be done.

The second major issue that had been contested very vigorously involved the allocation of seats and their complexity. It was said that the country had the most complex electoral system ever in South Africa -- that the allocation of seats was extremely complicated. At the beginning of this exercise, when the Bill was drawn up, the Department and its legal team thought that there was too much noise about the independents -- that political parties did not want them. They were concerned about ensuring that whatever it did for independents must be considered fair. There was a fear that when seats were allocated, what would happen was that most would be won by political parties and independents would be wiped out by the democratic process, and those who believed that the Department was opposed to independents would assume that it was paying lip service.

The proposal was therefore that the allocation of seats would be done in three phases. The first two phases were the allocation of seats to independent candidates only. This domain was only for independent candidates, not political parties. Once all of the independent candidates had received their seats in terms of the quota of votes, it was then that the third phase would be allocated to political parties. After a thorough debate and a presentation from the IEC, it was decided that this was not a desirable method, even for defending independence. The proposal for this allocation of seats was dropped.

He had been confronted very seriously, and in a violently emotional way, by some prominent people, who argued that the allocation of seats was being proposed to be done in a way that was out of this world. He had told them that it was an initial draft, but they seemed to believe it had been dropped because of opposition. It was known that in every legislation, the drafts changed based on what people had said on the ground, through public hearings and presentations, so that draft for the allocation of seats was discarded, after listening to what people were saying, particularly after a presentation by the IEC.

The present allocation of seats was based on a mathematical formula, called the Droop quota. This formula has been used since 1994. All of those in Parliament since 1994 were there via the Droop quota. This was the method that had been adopted in the Bill. It was not clear why it had caused so much opposition. People had suddenly found this formula to be unviable and complicated. Even those in Parliament via the Droop quota were suddenly opposed to it. He would like the NCOP to find out why this was so. He was not sure if this was because people did not care what mathematical formula the IEC had used since 1994, and that those people had now opened their eyes and found it to be too complex. He reiterated that the Droop quota had run this country’s democracy since 1994, and that there had been no complaints before this Bill.

Replacement of independents

The third issue was the replacement of independent candidates. The Members were aware that if any MP or MP of the NCOP left their seats, either through death, natural attrition or any other method, then there was a list of candidates that could fill those seats. It would still happen now with political parties, but what about the independent candidates? There was a very strong view that there should be by-elections. The chosen method, which was the first option, would mean that a whole province would have to go into elections every time there was a need to replace an independent candidate. It was strongly felt that this would result in a perpetual election mode, and that the country’s economy could not afford this, because elections did not come cheaply. The proposal was therefore made to refer to the previous elections, to see who was to follow in terms of getting a seat -- whether it was a political party or an independent candidate.

Contestation in regions

The fourth issue was the contestation in regions. Independent candidates were contesting in regions, which were currently presented as provinces. There was a big argument about whether this could be done in all of the nine provinces together and whether the votes would be aggregated. Most of the arguments felt that this could not be aggregated, that this must be chosen based on where the independent candidate had the highest votes, and that this would be the regional province that would send that independent candidate to Parliament. This was a very big argument, and it was still raging.

Party agents

The fifth issue was about party agents. During elections, the political parties were represented by agents, and nobody questioned that. The issue was that some parties – at least one party, which was the opposition party- believed that to guarantee that party agents represented parties at election stations, it should stipulate a minimum of two in the legislation. In other words, to say that every party would be represented by a minimum of two party agents, regardless of the size of the voting station. The IEC was worried that some voting stations were too small for many people to come in, especially if they included independent candidates. The opposition party had said that the Act should guarantee that there should be a minimum of two party agents for a political party. However, there was concern that there were parties which could not raise even one agent where, for instance, some parties were not even represented at some voting stations. If this was stipulated in the Act, it meant that if there was no representation, it would be breaking the law. He questioned what would happen on the day of the elections when only one agent turned up, but the Act stipulated that there should be a minimum of two. This meant that someone could go to court and say that the elections were not done in terms of the law, because the law said that every political party must have a minimum of two agents. The Department was of the view that this should rather be placed in the regulations, but there was the argument that this must be done through legislation. The Department believed that the NCOP should look into this issue.

Discarding of votes

The sixth issue was about the discarding of votes for independent candidates. He said this issue had caused a "third world war!" He explained that before every election, the IEC would determine how many votes an independent candidate or a political party would need to acquire one seat. For political parties, it was not complex. However, for independent candidates, there was the argument that if, for example, it was calculated that 50 000 votes were needed just to obtain one seat, and an independent candidate got 150 000 votes, then what happened to the other 100 000 votes obtained? Obviously, the 100 000 votes would be discarded, because an independent candidate was one person and could not get more than one seat. If it was a political party, then it would get three seats from these 150 000 votes.

There was a raging argument that those votes could not be discarded, and that those votes should be donated to somebody the independent candidate would choose. The argument was that all the votes must be equal and that it was unconstitutional to discard votes. This was surprising to the Department, because votes had been discarded since 1994, even for political parties. He extended the example that he had made earlier, about 50 000 votes that were needed to obtain one seat, in that what if a political party got 159 000 votes, then that would be used for a political party to obtain three seats and the 9 000 votes would be discarded. This has been happening since 1994. The NCOP would need to find out why this issue of discarding votes was causing a third world war. The IEC had also advised the Department that it had looked into the electoral systems across the world and in all countries, and that votes did get discarded. He questioned why this same discarding of votes would cause a stir and be deemed unconstitutional in South Africa.

Majority view "discarded"

The seventh issue, was that the Department of Home Affairs had discarded the majority view -- that with the MAC, the majority of people had voted for the second option, which was for 200 constituencies. He explained that when the MAC was established, the issue of majorities and minorities had not arisen. If such issues had arisen and were believed to be important, he would not have appointed a team of eight. Instead, he would have appointed a team with an odd number of seven or nine people. The MAC was not established to make decisions, like in a court of law. The MAC was meant to advise, which was why he had seen nothing wrong with appointing eight people. From the Department's side, the issue of majority and minority did not arise, but it had been spread far and wide that the Department of Home Affairs had disregarded the majority view.

Presidential elections

The eighth issue was the presidential elections. This issue never arose in the judgment, so it was never even considered in the Bill. The Zondo Commission had come in when the Bill was far advanced. He recalled that at the beginning of this process, there were some arguments that because of the Constitutional Court judgment, there would be a need for a constitutional amendment. He remembered that he had raised this argument, which had been reported in the press. All the legal "goons" whom he had attended workshops had dismissed him on that ground, saying there was no need for a constitutional amendment to effect the Constitutional Court judgment. Now, all of a sudden, it looked like it was wanted, because the people believed that independent candidates must stand on their own for the presidential elections. At present, the Constitution states that MPs choose the President at their first sitting. At the first sitting of the National Assembly, it was still believed that anybody could be chosen to be President, even with the incorporation of independent candidates. An independent candidate, or a member of a political party, may be chosen to be President, if the House so wishes. There was no thought about changing the Constitution, but now that Chief Justice Zondo had said so, the President had given the matter to the nation and Parliament to debate these issues. The Department believed this could be debated after the 2024 elections, but not before the 2024 elections.

Registration of independents

The ninth issue was the nature of signatures and deposits. He recalled that in 1996, the Electoral Commission Act was enacted, which was the Act that brought the IEC into being. In that Act, it stipulated regulations, one of which stipulated that for anyone to register a political party, they would need to show their support. So, in the regulations, the IEC decided that for a political party to be registered, it would need 1 000 seconders. This meant that a political party would need 1 000 signatures. The people would second the political party in the form of signatures and their addresses. This has been happening since 1996, to register a political party.

Fast-forward to 2022, with the amendment of the Electoral Act 73 of 1998 to incorporate independent candidates. The question now was whether the same measure of support was required for independent candidates as was required to register a political party. In this debate, many people believed that signatures and deposits were required, but the question was, how many? It was said that it needed to be 50% of the number of seats that were needed in the previous or the immediate past election. It looked at how many seats the party needed, and 50% of those had to be the number of signatures that an independent candidate must bring. After a long debate, this number was brought down to 30%, and after another debate, it was brought down to 20%.

Political parties did not need signatures to participate in elections; they only needed signatures to register a party. Independent candidates did not need to register for anything before elections; they just needed signatures to be able to participate in elections. People believed there was a discrepancy between the figure of 1 000 in the 1996 regulations and the figure of 20%, which people mistakenly said was 20 000 seats. The Department believed that the IEC would have to sit down, to see how to make these things equitable, so that nobody was cheated. This particular law pertained to independent candidates and new political parties. Nothing was required from political parties already in Parliament, because they had already shown they had support.

The nine issues he mentioned were the ones he believed the NCOP faced. The NCOP should address these issues in the next six weeks, if the deadline of the Constitutional Court is to be met.

Briefing by Bill’s drafting team

Adv Steven Budlender SC, leader of the Bill’s drafting team, said that he and Adv De Beer were part of the drafting team that had put together the initial Electoral Amendment Bill for the purpose of submitting it to Parliament. The National Assembly had made numerous changes to the initial Bill that was submitted, which was quite appropriate. Parliament's role was to consider things and not merely rubber stamp them, but to improve them. In his view, the Bill that was now before the Committee, emanating from the National Assembly, was considerably improved from the initial Bill submitted. This was a testimony to the Parliamentary process that had taken place.

In this briefing, he would like to echo some of the points that the Minister had made, to give context to some of the debates that had taken place in the public discourse. Some of the debates had not quite understood the correct position, and as a result, there did seem to be a misapprehension about what had happened. He would take the Committee through the Bill, and explain its seven key features. Finally, insofar as it was needed, he would go through the Bill clause-by-clause.

Conflation of issues

He said he needed to echo what the Minister had said, because it seemed to him that the public debate conflated two separate questions. Prior to the New Nation Movement NPC and Others case, there was an election system which allowed only political parties, and which did not operate at the national or provincial level on a constituency basis. The New Nation Movement NPC and Others case dealt only with the first issue -- whether Parliament had to include independent candidates in the political system. The Constitutional Court had ruled that it did need to incorporate independent candidates, but it did not deal with the question of constituencies and it did not require that constituencies be implemented. He was afraid to say that if one was told that the effect of the Constitutional Court judgment was that Parliament was required to adopt a multi-member constituency or a single-member constituency, then that was simply incorrect. In the New Nation Movement NPC and Others case, the Constitutional Court had very expressly stated that it would not deal with whether one electoral system or another was better. All that the Constitutional Court held was that there was a need to include independent candidates, and that was what this Bill did.

People could criticise the Bill and say that it could be different, that it could be more beneficial to independent candidates or that it could be done differently. Those were legitimate debates, but one could not legitimately be told that the Constitutional Court judgment required adopting a single-member constituency system across the country. It was absolutely clear that it did not deal with this issue. It also did not deal with the question of the direct election of the President. As the Minister had explained, that was a point that was raised only relatively recently by Chief Justice Zondo. It was a point that would have to be considered, but the Constitutional Court judgment did not deal with it.

He would not express a view on whether constituencies were better than a non-constituency system or whether a direct election of the President was better than a non-direct election of the President. Those were policy choices that were highly contested, and countries around the world had different views on them. These were issues that would need to be debated in Parliament, the National Assembly and the National Council of Provinces. However, these were not issues that were dealt with by the Constitutional Court judgment, and were not required to be dealt with in this Bill. The only issue that the Constitutional Court judgment dealt with, and that had to be dealt with in this Bill, was whether independent candidates could run for the National Assembly and provincial legislatures. The Constitutional Court had stated that independent candidates had to be accommodated, which was what this Bill sought to do.

He was certain that civil society had come with the best intentions in making the points they sought, and many people had legitimate concerns about the electoral system. However, that did not mean that it had to be done in this Bill, and it certainly did not mean that it had to be dealt with as a consequence of the New Nation Movement NPC and Others judgment.

Post-2024 electoral change permissible

The second point he wanted to make was that passing this Bill did not preclude Parliament and the National Assembly from looking into those questions about constituencies, the direct election of the President and a more fundamental revision of the electoral system in due course. On the contrary, Parliament was always able to change the electoral system. It would therefore be perfectly permissible and inevitable that if this Bill was passed, it would keep the bulk of the electoral system in place for the 2024 elections, but change it by accommodating independence. Then, immediately after the 2024 elections – the day after -- Parliament would be entitled to relook at the electoral system more profoundly. At that point, Parliament would also quite possibly have independent candidates who would be able to participate in that. It seemed that the suggestion that this was the only opportunity that the country had to debate this was quite wrong. It may well be that the NCOP would want to make it clear in the Bill, by an amendment, that this was a system designed for the 2024 elections and that after the 2024 elections, all of this would be relooked at. This would be eminently permissible and quite sensible, because it would make it clear to everyone that it was not the final word on these issues, and that this was a system put in place to enable the 2024 elections to run on time, and in accordance with the Constitution. After the 2024 elections, it could be relooked at and more fundamental changes could be considered.

New demarcation board needed

The third point was that one needed to understand that this was already a significant change to the electoral system, introducing independent candidates. However, moving to a constituency-based system was an enormous practical change. For the reasons the Minister had given, there would be a need to demarcate constituencies all over the country. That was a highly fraught process, but more importantly, there would either need to be a fundamental change to the role of the Municipal Demarcation Board, or the creation of a brand-new demarcation board, but it would be a very extensive process. If the Bill were to insist on a constituency-based system, with demarcation and changing the mandate of the Municipal Demarcation Board, there would have to be a massive and very rapid laying out of constituencies by the demarcation board. The government had taken the view that it was not practical to do that in time for the 2024 elections. That view was eminently rational and permissible. Considering the limited time available, it did seem that there would have been enormous chaos if a Bill was asked to be drawn up that would have required such profound changes. Some people would disagree with that, but the point was that it was a legitimate and rational view. He emphasised that it was not as though this was the last amendment of the Electoral Amendment Bill. There would be a chance to relook at these issues after the 2024 elections, and by then there would be representation from independent candidates and political parties. The country would also have seen how the system worked.

Parliament's enhancement of the Bill

He had already echoed the points from the Minister, but would like to add one more point as it was really fundamental. When he had read some of the commentary that was in the media, sometimes by very well-respected people, he was amazed that some of the commentary did not reflect the actual Bill that had been put before the Committee. The initial Bill that was put before the National Assembly had a number of features, some of which he would accept, some of which needed some work and some of which had flaws and needed to be revised, and that indeed took place in the National Assembly.

What had happened was that the National Assembly had considered the initial Bill and had taken extensive note of the public comments that had been made, and there were long debates about how to fix it. The Bill that was now before the Committee was "chalk and cheese," compared to the initial Bill. It was a massive advance. Many of the criticisms in the public domain were simply not relevant anymore, because they had already been fixed. He urged the Committee that when it received submissions, that it should check whether the submissions were on the correct version of the Bill. There was no point debating what the Bill used to say. This was what the Bill said and many of the concerns that had been raised, had already been dealt with quite admirably. It was a concern to him that the public was, to some extent, being misled as to what the Bill actually said.

Seven key features of the Bill

Adv Budlender said he wanted to summarise the key features of the electoral system that would be implemented via this Bill. He wanted to do so on a relatively high-level, because it was important for Members of the Committee to understand what the new system that was proposed by the Bill would look like.

1.         The position of the National Assembly.

Before this Bill came into force, the system was that the National Assembly has 400 members, of which 200 were known as regional seats. These seats were elected by voters in a given province to the National Assembly, and were allocated based on the relative populations of the provinces. There were also 200 additional compensatory seats, and those were the seats that were used to make sure that proportional representation was achieved across the country. That was the way it currently worked. Everyone voted using one ballot paper for the National Assembly, and that ballot paper was used twice. It was used to determine the 200 regional seats in the National Assembly, and it was used to determine the 200 compensatory seats. That would remain the same under the Bill, but subject to two changes. When it came to the 200 regional seats, the change was that voters would be voting not only for political parties, but could also vote for independent candidates. Consequently, instead of having two ballot papers, there would be three ballot papers.

This Bill, for the first time, enabled independent candidates to run for the National Assembly, enabling them to be on the same ballot paper as the political parties for the 200 regional seats in the National Assembly. Independent candidates would be able to run in more than one province. If elected, the independent candidate would take up a seat with which he/she had gotten the most votes.

2.         The position of the Provincial Legislatures.

The scheme of the National Assembly elections would be very similar to the provincial legislature. At the moment, there were only political parties, but now there would be the addition of independent candidates who would be able to run for the provincial legislature.

This meant that for the first time, independent candidates could be elected to the provincial legislatures if they got the seats.

3.         Ballot papers.

Each voter would receive three ballot papers. This could be seen in the Bill. It was item 13 of Schedule 1A, introduced by clause 21.

A voter would receive a ballot paper for the provincial legislature, including political parties and independent candidates. The second ballot paper was for the National Assembly regional seats, including political parties and independent candidates. The third ballot paper was for the 200 compensatory seats in the National Assembly.

The Bill gave independent candidates a huge choice of which province they wanted to run in, how many provinces they wanted to run in, and whether they ran in the National Assembly or only in the provincial legislatures.

4.         How seats were allocated.

The allocation of seats had been a huge controversy, because the initial Bill, with the best will in the world, had tried to come up with a system of three rounds of allocations of votes. It was pointed out in the National Assembly that those three rounds of allocations were far too complicated, so the IEC had put forward a much simpler approach. There was now only one round of allocation.

The allocation was done dealing with political parties and independent candidates. It was dealt with in item 5 of Schedule 1A, clause 21. It explained that there would be a single round of independent candidates contesting the regional seats, and the same thing would apply equally when it came to the provincial legislature. It did use the Droop quota, which was merely a mathematical formula used to ensure that there were not too many people elected to the National Assembly, or too few – it just made sure that there was not a seat left over at the end. The Droop quota has been used since 1994. Either the Droop quota or the Hare quota was used all over the world. As the Minister said, it was difficult to understand the issue.

When the seats were allocated, there would be a threshold. For example, in the last election, the threshold to be elected to the National Assembly had been 44 000 votes. In other words, to be elected to the National Assembly, you needed 44 000 votes. So, if the ANC got 450 000 votes, then it would be entitled to ten seats. If the DA got 88 000 votes, then it would be entitled to two seats. The same applied to independent candidates -- they would receive a seat if they got 44 000 votes. The same threshold was used for political parties and independent candidates.

Each year, the quota depended on how many people voted. This was the way that it had always worked and it was determined by the IEC. That quota would apply to all political parties and all independent candidates.

There had been a complaint about the wasted votes. As the Minister had explained, and it was obvious, if someone was running as an independent candidate, that person could occupy only one seat, not two.

Adv Budlender emphasised that wasted votes were a product of all electoral systems. For example, if the seat threshold was 44 000 and the ANC got 460 000 votes, that meant that 20 000 votes were wasted, because the ANC had got enough for ten seats but not enough for an eleventh seat. So, the 20 000 votes were “wasted” - but they were not really wasted, because they contributed to the ANC’s result. The point was that the concept of wasted or discarded votes existed in all political systems. It was important to note that all political parties and independent candidates were treated equally in terms of the way that the allocation method was used.

Another point to make was that if there was an independent candidate who was so popular that they were going to win ten times the number of votes they needed, that person had the option to form a political party instead of running as an independent candidate. However, if one chose to run as an independent candidate, one could not complain that one's rights had been violated or that the voters' rights had been violated. By definition, an independent candidate could have only one seat.

5.         Vacancies.

Adv Budlender said that the initial Bill proposed not filling vacancies. Parliament felt, quite correctly, that that needed to change. It was now dealt with by item 23 of Schedule 1A, clause 21. The Bill now stated that if someone vacated a position in Parliament and was on a political party list, the political party was entitled to fill that position from their list. If an independent candidate was to vacate the position, then it did not necessarily go to a political party, but the IEC would go back and look at the previous allocation of seats and the previous votes in the election. The IEC would give that seat to the next person or party in line under that calculation. For example, if the next person or party in line was the ANC, then the ANC would get an additional seat, or if the next person or party in line was an independent candidate named Mr Smith, then Mr Smith would get that seat. It treated political parties and independent candidates perfectly consistently. It did not mean that independent candidates who left office would necessarily be replaced by a political party.

6.         Qualifications to run as an independent candidate.

The question of qualifications to run was dealt with by Section 31(b)(3a) of the Act, which was introduced by clause 6 of the Bill. Section 31(b)(3a) listed the requirements for independent candidates to contest the election, most of which were fairly uncontroversial. An independent candidate would need to sign the relevant undertaking, make the prescribed declaration, put up a photograph, pay a deposit – which would be set by the IEC -- and complete the prescribed form.

The independent candidate would then need to show that he/she had achieved 20% of the threshold needed. The 20% of the threshold needed meant the following:

In the last National Assembly election, there were 44 000 votes required to get a seat in the National Assembly. An independent candidate would need 20% of that 44 000 to stand for the election, so the candidate would need signatures from 8 800 people to stand for the election to the National Assembly. Although 8 800 people sounded like a lot of people, one had to bear in mind that if one could not succeed in raising the 8 800 signatures to stand for Parliament, then what were the odds that they were going to achieve 44 000 votes for that same Parliament? In other words, if people did not know an independent candidate and he/she could not gain enough support to get the 8 800 signatures, then how could it be realistically expected for that independent candidate to get the 44 000 votes necessary?

One might argue that the 20% threshold was too high or too low, but the view that the National Assembly took was that it was an appropriate balance. The 20% threshold was a balance between making sure that the ballot papers were not a telephone book and hugely confusing, or that it was too easy for too many candidates. On the other hand, it ensured that people had a proper opportunity to run. It seemed as though the 20% figure was certainly a justifiable figure from a constitutional standpoint.

7.         Consequential amendments.

The Bill also had to make a whole series of consequential amendments, because it was inserting independent candidates into a system that dealt primarily with political parties. The Bill did this in a series of respects.

Adv Budlender concluded by giving the Committee a sense of where to find things in the Bill:

• Clauses 1 to 5 dealt with consequential amendments and definitions. 
• Clause 6 was a provision which dealt expressly with independent candidates.
• Clauses 7 to 19 dealt with consequential amendments.
• Clause 20 deals with the amendments to Schedule 1, which was the electoral timetable.
• Clause 21 amended Schedule 1A to the Act, which dealt with how seats were to be allocated on the basis of the votes.
• Clauses 22 and 23 rounded off the Bill.

Chairperson’s comments

The Chairperson thanked Minister Motsoaledi and Adv Budlender for pointing out certain areas in the Bill that needed more focused attention by the Committee and clarifying some of the issues in the public discourse. She said that the Bill dealt with the issue of including independents to contest the National Assembly and the provincial legislatures. The chosen option was informed by addressing the realities or practicalities of incorporating this in legislation, within the required timeframe, and within the current legislative framework.

The Committee would continue receiving public comments and would deliberate further on the matters. The point made about dividing the country into constituencies, should be a debate that must continue and be dealt with in the future.

Discussion

Mr T Dodovu (ANC, North West) said the briefings had been educative and empowering. They had explained the Bill and the difficulties and predicaments that had been faced when preparing and discussing the Bill. He felt that the debates that were taking place in the country were very good, as it showed the liveliness of the country’s democracy. He was impressed that the National Assembly had considered all of the comments and taken them into consideration when adopting the Bill.

He understood that the doors were not closed regarding the kind of electoral system that needed to be adopted. Going forward and in future, perhaps immediately after the 2024 elections, there was an opportunity to relook at the electoral system.

The Constitutional Court judgment was to ensure that independent candidates were allowed to participate in the elections. He asked if it was possible for the country to look at the new Electoral Act immediately, and make suggestions as to what electoral system would be best for the country.

Ms A Maleka (ANC, Mpumalanga) referred to the signature requirements to run as an independent candidate and to register as a new political party. She asked the Minister whether there would be a consideration to equalise the requirement of signatures for registering new political parties and for running as an independent candidate.

Mr M Dangor (ANC, Gauteng) said that many of the comments that had been raised in the public had been around the question of the equality between the registration of new political parties, and running as an independent candidate. He asked if the Minister could expand on this so that the Members could understand this further.

He foresaw a danger in this -- for example, if a gang leader in the Western Cape could raise the number of signatures required and could run as an independent candidate. Another concern was the question of people using independents to promote tribalism or racism.

Mr I Sileku (DA, Western Cape) questioned whether it was fair that the NCOP had been given six weeks to deal with this Bill, considering how much time had been spent in the National Assembly. He questioned whether the Committee would be chasing the deadline. He was worried about whether the Committee would be able to apply its mind, or if it would have to skip steps to meet that deadline.

He noted the Minister’s comments about the MAC that had become vocal about their own reports. He questioned why those selected to be in the MAC would be given a job, hand over a report to the Minister, and then all of a sudden make a U-turn and speak against what they had reported.

He asked how one justified the 20% of the threshold needed to run as an independent candidate, while only 1 000 signatories were needed to register a political party. How could one justify the fairness of this? In his opinion, one would find that some individuals were stronger than some political parties.

Mr E Mthethwa (ANC, KZN) said that he noticed a lot of conflict and danger with this Bill, more than anything else. He really appreciated the way in which the Minister had unpacked all of the issues in the nine points that he had made.

He agreed with the Minister’s concerns about the second option, concerning the demarcation. To date, there are still people who were aggrieved about previous demarcations.

It was still unclear how the IEC would replace an independent candidate if, for instance, that person passed on while in office. He asked if that seat would remain vacant, or if the IEC would return and give that seat to the next person or party in line. He asked how another person might not manipulate this process, particularly those with money.

He was concerned about the issue of party agents. He recalled that during the previous election, many new political parties came in, and party agents fully occupied voting stations. He asked how this would be controlled.

Regarding the 8 800 signatures needed to run as an independent candidate, he asked how the IEC would ensure that all of those signatures were valid.

He believed that the Committee should allow itself to take time to grapple with all of the issues, and not be in a rush for the 2024 election. The Committee needed time and thought to come up with an amicable solution to all of the questions raised on the Bill. He did not think the Committee was ready to finalise this Bill before the 2024 elections.

Ms M Bartlett (ANC, Northern Cape) asked the Minister to elaborate further on the provision in the Bill that an independent candidate could contest in more than one region, and would be allocated a seat in the region where the independent candidate had obtained the most votes.

Mr Dodovu said he wanted to follow up on what Mr Mthethwa had asked. He noted that the Constitutional Court judgment had been made in 2020 and had given Parliament two years to rectify the defects, to include the independent candidates as having a right to participate in the elections. An important issue had been raised, that if there was a choice towards option two -- the constituency-based electoral system -- it would have been technically impossible, given the logistical arrangements that had to be made with the changing of the demarcation board, which was quite understandable. He asked if it was not possible for Parliament to go back to the Constitutional Court to say that given the timeframe, it could not implement the current arrangement and ask for deferment of all of these processes until 2024. Was it possible that the Constitutional Court would agree with Parliament, considering all of the practicalities, to ensure that all the systems and processes were put in place?

Minister's response

Minister Motsoaledi responded that the Constitutional Court was very clear in saying it would give Parliament 24 months to remedy the defect that gave rise to unconstitutionality. The National Assembly had realised that it could not do so in 24 months, and had returned to the Constitutional Court. The Constitutional Court had given the National Assembly only six extra months, which ended on 10 December 2022. He therefore agreed with Mr Sileku that this squeezed the NCOP. Unfortunately, that was the card played by the Constitutional Court, which was the apex court. He was not convinced that the Constitutional Court would agree to defer this process. He emphasised that the manner in which choices were made on the Bill was based on the understanding that the 2024 elections were cast in stone. If the National Assembly had to ask the Constitutional Court to give it more time, that would mean that the Constitutional Court would have to move the 2024 elections. He reminded Mr Dodovu that the Constitutional Court had previously disagreed with postponing the local government elections that took place in 2021 during the pandemic. The Constitutional Court did not think the deadly Covid-19 virus was a good enough reason to postpone the elections. He therefore did not think that the Constitutional Court would agree to postpone the 2024 elections.

He doubted the Constitutional Court would ever agree that the 2024 elections could proceed without incorporating independent candidates. This would just fit into the narrative that the political parties in Parliament did not want independent candidates because they wanted to cling to power. Some people had a firm belief that in 2024, political parties were going to be wiped off the political landscape and Parliament would be taken over by independents, so postponing the incorporation of independent candidates would just play into that belief.

Minister Motsoaledi said Mr Dangor had mentioned something quite scary. He said that right at the beginning of this process, after the Department of Home Affairs had done the policy and prior to drafting the Bill, he had taken the policy to the Directors-General (DGs) cluster. Among the DGs were those who worked in the security cluster who had specifically asked him what would happen if those involved in cash heists were to stand as independent candidates, and would use the money they had accumulated to buy votes, et cetera. He recalled that the DG’s in the security cluster had asked him if there was a possibility that the country might find itself having a Parliament consisting purely of gangsters and killers. His answer to them had been that it was an unfortunate possibility.

He wanted to give an example from when he was the Minister of Health. He had a colleague from a neighbouring country who was also a Minister of Health, and was well-respected internationally, particularly by the World Health Organisation. He recalled that his colleague's country had used constituency-based elections, and the person who challenged him owned a liquor store and distributed free liquor. After those elections, his colleague had phoned him to inform him that he had lost his seat to someone who was a liquor store owner -- meaning that the seat was bought with liquor.

Minister Motsoaledi emphasised that Justice Madlanga had made it clear that the debates about which electoral system was better, which system afforded more accountability, or which system had more pros than cons, were for Parliament to debate. Although those were issues that must be debated, the Department believed there was no chance and time to address them in this particular Bill. There was an opportunity to debate those issues immediately after the 2024 elections.

He noted that Mr Dangor had also raised concerns about tribalism. These were all issues that had been raised in the debates. The reason why the country had chosen a proportional representation system was because of the spatial layout and development of South Africa, bearing in mind that the country came from an era of apartheid. The question was whether there had been enough change after 28 years of democracy to leave that system. He reiterated that the Department felt there were not enough 24 months to enter such debates. These lively debates needed to be entered into after 2024, when there would be time and everyone in South Africa would have an opportunity to make comments.

In response to Mr Sileku’s question on whether the six weeks was a fair deadline for the NCOP, he replied that it was not enough time, but unfortunately, that was what the apex court had said. There was no other option but to do it, because he did not think the Constitutional Court would grant a further extension.

As to why someone who had been given the opportunity to run this process would start challenging the same report, he replied that it also puzzled him, and he did not have an answer to it.

On the question of the fairness of the requirements needed to run as an independent candidate and the signatories needed to register a political party, he said that this had been flagged as one of the controversial issues. The reason why it was so, was because these figures appeared at different times in the country, and in different legislation. The 1 000 signatories needed to register a political party had been determined in 1996, in the regulations of the Electoral Commission Act – the legislation that brought the IEC into being. At that time, independent candidates did not exist. Fast-forward to 2022, and Parliament was now faced with a similar dilemma. Independent candidates did not register, but there needed to be qualifying criteria to exclude them, otherwise the ballot papers would be as big as a telephone book. One of the criteria was to show support. He alluded to the example that Adv Budlender had mentioned in his briefing. The qualifying criterion had been set at 20% of the threshold. He agreed that it was unfair to have different standards for political parties and independent candidates, but there was no way that the amendments to the Electoral Act 73 of 1998 would have dealt with it, because the issue of political parties was dealt with in a different Act. The only structure that could bring fairness was the IEC. The IEC must find a method to ensure that the number of votes that a political party needs to register for elections is not much less than the number of votes it was required for an independent candidate to be on the ballot. In other words, it was being left to the IEC to equalise this.

In response to Mr Mthethwa’s question of how the seats of independent candidates would be replaced, he replied that this was another huge debate. The independent candidates were accommodated in what was presently called the “province to national” list. Some MPs had arrived in Parliament through the province-to-national list, meaning that a political party had sent them as a representative from a province, so it was thought that the best way to accommodate independent candidates was via the province-to-national list. He said it would not be practical for a province to hold by-elections every time a seat of an independent candidate became vacant. The final agreement was that the seats would be replaced, but not through a by-election. It was decided that the IEC would refer back to the previous election, because every election always had a point where a cut-off point happened to a person – there was always a person who could have got in, if the one above had not beaten them by a vote. The IEC would refer back and look at the person next in line, or nearly got in to get that seat, whether that person was from a political party or an independent candidate.

He said that the question about party agents was a good one. The issue of party agents should be left to the IEC. The IEC had always found a way of dealing with this at voting stations. The Department was against stipulating this in the Act, as some parties had insisted, because once it was placed in the Act, it could not be changed according to the practical situation on the ground.

On Mr Mthethwa’s concern about the validity of signatures, he replied that the IEC would have to check the authenticity of the individuals. The Constitutional Court had ordered that the voters' roll should include addresses. The signatories must be people who were on the voters' roll. One could not be supported by people who did not even register for elections. Unfortunately, this would be an administrative nightmare for the IEC, but the IEC had no other option but to check the validity of the signatures.

He agreed that more time was needed to debate the options. Even if the country had gone with the option of the constituency-based electoral system, it would have needed more time. Unfortunately, there was a Constitutional Court deadline to reckon with. The deadline would just need to be met.

He referred to Ms Bartlett’s request for clarity on independent candidates contesting in more regions. He replied that there was a big debate about this issue. At present, political parties had something called “national to national”, meaning that they had a footprint in the whole nation, and in the Bill, this was referred to as compensatory seats. The question was why an independent candidate would be confined to one province. To solve the problem, it was said that the independent candidate should be allowed to contest in whatever province they wished, or in as many as possible, but if elected, the independent candidate would be allocated to the province or region where they got the highest number of votes.

Drafting team's response

Adv Budlender said that the Minister had done extremely well in responding to the various legal issues. He just had two brief points to add.

The first and most important point was to be clear that he did not think that there was any prospect of avoiding deciding on these questions regarding the independent candidates before the 2024 elections. It was quite clear that the Constitutional Court required this to be addressed before the 2024 elections. He understood the pressure it placed on everyone, but it would have to be done.

The second point was on the signatures. It did seem that it would have to wait for the IEC to make their proposals. However, from a constitutional standpoint, he felt that it was important to equalise the signatures that a political party required to contest an election and those that an independent candidate required. Obviously, if a political party already had a seat, or in future, if an independent candidate already had a seat, it would be permissible for Parliament to say that they would not need to go through the signature process again, because the support had already been proved. For a political party without a seat or an independent candidate without a seat, then it was necessary for that to be done.

Chairperson’s comments

The Chairperson thanked the Minister, Adv Budlender and the Members. She said that this had been a very lengthy engagement, but it had also been very important. It was a very fruitful meeting, in terms of the Committee trying to develop an understanding and the context concerning the Bill. While the engagement had clarified the Bill in its current form, there were still areas for further engagement which the Committee would continue with the Department of Home Affairs.

The Committee advertised the Bill for public comment on all relevant platforms. The closing date was 9 November. The Committee called on all stakeholders and the public at large, to make their comments by 9 November.

The Committee would meet with the IEC in its next meeting. Some of the questions were about the technicalities around seat allocation and the issues of signatures, amongst others.

She felt that it was important for the Committee, as an institution, to try its level best to meet the deadline for this Bill. The Committee should remain committed to meeting this deadline, to ensure that the 2024 elections take place.

Report of the Select Committee on Security and Justice on the Interim Critical Infrastructure Protection Regulations in terms of section 27 of the Critical Infrastructure Protection Act, 2019 (Act No. 8 of 2019)

The Committee considered and adopted its report on the Critical Infrastructure Regulations.  

The meeting was adjourned.