Electoral A/B: briefing on written submissions received & tagging; Drugs and Drug Trafficking Amendment Bill: adoption
NCOP Security and Justice
11 November 2022
Chairperson: Ms S Shaikh (ANC, Limpopo)
Tracking the Electoral Reform Legislation in Parliament
The Select Committee convened in a virtual meeting to consider and adopt the Drugs and Drug Trafficking Amendment Bill, and to be briefed on the 25 public submissions received on the Electoral Amendment Bill.
The Drugs and Drug Trafficking Amendment Bill had arisen due to the Constitutional Court judgment which had declared section 63 of the Act unconstitutional and invalid. The Court had given Parliament 24 months to resolve the flaw. The Committee recommended that the National Council of Provinces (NCOP) pass the Bill, tagged as Section 75.
The Committee's content advisor presented the written submissions received on the Electoral Amendment Bill, which had been advertised for public comment in the print media and on social media platforms from 26 October to 9 November. The 25 submissions raised a wide range of concerns over the proposed amendments, with many asserting that it would be premature to introduce the changes ahead of the 2024 elections.
The Committee Chairperson said that the tagging of the legislation as a section 75 or 76 Bill was a concern for the NCOP, due to the limited powers of the Committee. The parliamentary legal adviser briefed the Committee on the tagging procedures, as set out in section 75 and section 76 of the Constitution, and satisfied Members that it was appropriate for the Electoral Amendment Bill to be classified as a section 75 bill.
The Chairperson said there were three items on the agenda for discussion.
Consideration and adoption of the Drugs and Drug Trafficking Amendment Bill;
Content Adviser on the written submissions received on the Electoral Amendment Bill;
Parliamentary Legal Adviser on tagging of the Electoral Amendment Bill.
Drugs and Drug Trafficking Amendment Bill
The Chairperson said that the Drugs and Drug Trafficking Amendment Bill had arisen due to the Constitutional Court judgment, which declared section 63 of the Drugs Act unconstitutional and invalid. The Court suspended the section, and gave Parliament 24 months to resolve the flaw.
She provided context to the Bill, and advised that the Committee had received a briefing and engaged with the Department of Justice and Constitutional Development (DJCD) on the content of the Bill. The Bill had been advertised for public comment from 18 October to 4 November, and there had been one submission. The Department provided responses to the Committee on 9 November. There were no objections to the report. The Chairperson proceeded to propose adoption of the Bill.
Ms M Bartlett (ANC, Northern Cape) moved for adoption, and Mr G Michalakis (DA, Free State) seconded.
The Chairperson advised that the Committee had received a further report and response from the DJCD on the written submission. She covered the public participation process, the summary of the submissions, consideration and consensus of the Bill.
The Committee considered the Drugs and Drug Trafficking Amendment Bill (B19 -2022), tagged as Section 75, and recommended the National Council of Provinces (NCOP) pass the Bill without proposed amendments.
Mr I Sileku (DA, Western Cape) moved for adoption, and Ms A Maleka (ANC, Mpumalanga) seconded.
The Members were satisfied with the Bill as tabled, and adopted it without proposed amendments.
Electoral Amendment Bill
The Chairperson thanked Mr Adam Salmon, Committee Content Advisor, for collating and integrating 25 submissions received on the Electoral Amendment Bill, which had been comprised of 200 pages and had taken two days to reduce to 20 pages.
Mr Salmon said the Electoral Amendment Bill had been advertised for public comment in the print media and social media platforms from 26 October to 9 November. He briefed the Committee on the submissions received from 25 organisations, and said that some of them included inputs from 36 non-profit organisations (NPOs). The general comments did not relate to any clause in the Bill.
Written submissions have been received from a wide range of organisations and individuals. These had argued that the time allocated for the Amendment of the Electoral Act was short, and the period should be extended to at least 2025 for consultation with the traditional authorities to ensure a meaningful and participative discussion. The NCOP had been asked to reject the draft Bill and refer it to the National Assembly for reconsideration. There had been failed attempts to engage with the Portfolio Committee. They had proposed a completely different electoral system -- a service delivery-oriented government which was inclusive of citizens in decision making. The voting procedure and the method of counting the votes must not be complex, to ensure a higher voter turnout. It was asserted that the Bill was not correctly followed and was incorrectly tagged.
Summary of submissions
The Committee was presented with an extensive list of submissions. These included:
General concerns, such as definitions;
Regions, with particular reference to demarcation challenges;
Requirements for independent candidates;
Inspection of party lists;
Electoral Court appeal decisions;
The system of representation in the National Assembly and Provincial legislatures;
Alleged bias in favour of political parties
Insufficient time to amend the electoral system before the 2024 elections;
Drawbacks in the system of discarding surplus seats;
The risk of litigation where aggrieved parties claim 2024 elections are not free and fair;
Lack of provision for a by-election when an independent candidate vacates their seat; and
The proposal of a "running mate" system for independents, to fill a future vacancy.
(Please see attached document for details)
Mr Sileku raised concern at the “delay tactics” and lack of support by one of the architects of the Constitution, Mr Valli Moosa, in finalising the process of the amendment before the deadline of 10 December.
Mr M Dangor (ANC, Gauteng) said that the matter had been raised previously by one of the Committee Members, who had asked for sufficient time to be allocated for Parliament to look at the law and take it forward.
Mr N Hadebe (IFP, KZN) asked for clarity on the distribution of the documents.
The Chairperson replied that the documents had been distributed to the Members, and acknowledged an error where the contribution by a person whose name was not reflected at the bottom of the contribution. There had been a correction by Mr Salmon.
The Chairperson proposed that the final document presented to the Members should be forwarded electronically. The report was for noting. She confirmed that the concerns of Mr Sileku and Mr Dangor would be addressed at the 14 November meeting by the Department of Home Affairs.
She said the tagging of the Bill was a concern for the National Council of Provinces (NCOP), due to the Committee having limited powers.
Tagging of the Electoral Amendment Bill
Ms Daksha Kassan, Parliamentary Legal Advisor, introduced Ms Telana Halley-Starkey, who had assisted on the Bill, and apologised for the absence of Adv Siviwe Njikela, Senior Parliamentary Legal Adviser, due to him being sick.
Ms Kassan briefed the Committee on the two tagging procedures as set out in section 75 and section 76 of the Constitution. She acknowledged that various submissions were received and questions regarding the two sections, and explained why the Joint Tagging Mechanism (JTM) had tagged the Bill as section 75. Premiers proclaimed the provincial elections, therefore provincial elections were squarely a provincial function. The Bill would materially impact the composition of provincial legislatures and the provincial elections, and therefore affect the provinces.
The Chairperson acknowledged that the tagging was aligned with the contents of the Constitution, and wished Adv Njikela a speedy recovery.
Mr Sileku asked if there were instances when the tagging by the JTM was contested, and if the people contesting the Bill had been successful.
Mr Dangor asked the legal advisors, if the matter was referred to the courts, in which direction did they think the Court would rule?
Mr T Dodovu (ANC, North West ) pointed out that in 2019, the amendment to the Municipal Systems Act had been declared unlawful, based on the tagging of the legislation, and it had taken three years to be rectified. He raised a concern with the reasons advanced for it not being classified under section 76. He asked if the 1998 version of the Electoral Amendment Bill was tagged as a section 75 or section 76 Bill. Were there any amendments to the Electoral Act, and if so, had a process been followed for section 75 tagging of the legislation?
The Chairperson replied that the Electoral Act had been passed in 1998, and in 2000 it had been amended and tagged as a section 75 Bill. She asked the legal advisor to comment.
Legal adviser's response
Ms Kassan replied that in 2017, tagging by the JTM had been contested. The Municipal Systems Act was incorrectly tagged as section 75, and the Court had concluded that the Bill should have been tagged as section 76. The reasons for it being tagged section 76 Bill were due to provisions that triggered section 76 3 D of the Constitution, which dealt with legislation envisaged in sections 195 3, 4, and 197. It had to do with the public administration and the public service.
She said the tagging of the Bill would stand up in Court in view of the Tongoane judgment and the constitutional provisions, as it was correctly classified as a section 75 Bill. In 2013, an Electoral Amendment Bill was introduced to Parliament for the casting of special votes in an election for provincial legislators. It was also introduced as a proposed section 76 tagging. The JTM had to classify it as a section 75 Bill, and there had been no challenges to date. In 2020, an Electoral Amendment Bill [B22 -2020] was introduced to Parliament, where a provision of that particular Bill dealt with determining the number of seats in a provincial legislature. She said that it did not affect provinces, as it was proposed as section 76, and Parliament had reclassified the Bill as 75. To date, there had been no challenges. She explained that the Electoral Act of 1998 was also processed as a section 75, although the test for tagging was different, based on the "pith and substance" test. Currently, the test for tagging is based on a substantial measure, and electoral amendment bills have been processed in Parliament as section 75 Bills.
The Chairperson said that Ms Kassan had responded to all the questions.
Mr Dodovu said that it was interesting to note that there are currently concerns with the tagging of the Bill compared to the past, and he was satisfied with the explanation from Ms Kassan.
The Chairperson acknowledged the presence of the legal services and their presentation, which had clarified the tagging of the Bill for the Committee.
The meeting was adjourned
Shaikh, Ms S
Bartlett, Ms M
Dangor, Mr M
Dodovu, Mr TSC
Hadebe, Mr N
Maleka, Ms AD
Michalakis, Mr G
Motsamai, Mr K
Mthethwa, Mr EM
Ndongeni, Ms N
Sileku, Mr IM
Visser, Ms C
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