The Select Committee on Security and Justice, National Council of Provinces, received responses from the Department of Home Affairs, the Electoral Commission, and Parliamentary Legal Advisors on written submissions received on the Electoral Amendment Bill [B1B-2022].
The Bill would allow independent candidates to run in national and provincial elections. In considering another round of public views on the contentious bill, the Department of Home Affairs obtained an independent legal opinion on how to treat the concerns. The Minister consequently recommended that a political party that was not represented in a legislature, obtain the same number of supporter signatures as an independent candidate. The threshold would be at least 20% of the quota required for a seat in the previous election. An elected independent candidate would be exempt from that requirement in a subsequent election.
The Minister also asked the Members to consider including in the Bill a provision for the establishment of a panel of independent experts to investigate the reform of South Africa’s electoral system, which will include a constituency-based system. That would only happen after the 2024 national elections. The Minister’s opinion was based on the legal opinion which the Department had received. The legal opinion was of the firm view that the new system proposed in the bill should be adopted only for the 2024 elections, and that the Bill should specify the creation of a body of experts – broadly representative of society – to undertake a more thorough and long-term investigation into the electoral system, and propose more long-term and larger reforms to the system should they be appropriate.
The Minister told the Select Committee that it was extremely unlikely that the electoral system would be totally reformed before the elections. He also said it was very unlikely that the Constitutional Court would agree to a postponement of the elections, but noted that it was up to the Select Committee to decide whether to request an extension or not.
A Parliamentary Legal Advisor highlighted that the deadline for the Bill was less than a month away. Any amendment that the Select Committee proposed at that stage would have to be considered by the NCOP. If such an amendment was adopted, then it had to be referred back to the Portfolio Committee on Home Affairs. That was the concern in terms of the timeframes. Once such amendments were before the Portfolio Committee, it would have to put out a call for public comment. All of that, cumulatively, would have an impact on the ability of Parliament to meet the deadline. There was the risk of some of those amendments impacting a number of Acts. That would have to be considered.
The Chairperson said there was an issue with equalising the signature requirement to ensure fairness. There was also the issue of vacancies and seats. It addressed comments related to an error in the methods to award a seat left vacant by an independent who had been elected to more than one legislative assembly. There was a proposed amendment by the IEC to Schedule 1A to address that matter. The third issue was about ICs contesting more than one region. With that issue, the Department proposed the possible inclusion of a rule where seats would be allocated to an IC in the event that the IC received a seat in more than one region. There were also submissions on broader electoral reform post-2024 elections. Those were matters for further discussion by the Committee. The issue of procedural matters was also raised. Tagging had been discussed in a previous meeting, but if Members still wanted to discuss it, it was not a problem. On public participation, this was not the first Bill that was contentious in the public domain that the Committee was dealing with. With the timeline to process the Bill, there were sentiments that the Committee could deal with expeditiously.
The Chairperson observed that in the previous meeting, the Committee (SC) received a briefing from the Content Advisor on the public comments received on the Electoral Amendment Bill [B1B-2022], and from a legal advisor on the tagging of the Bill as a section 75 (S75) Bill.
Department of Home Affairs Presentation
Dr Aaron Motsoaledi, Minister of Home Affairs, observed that the Department of Home Affairs (DHA) gave the questions on the Bill to its Senior Counsel. A number of questions were about the legality of what the Department was doing, and the Senior Counsel had written a memorandum (memo) in response. The Senior Counsel was not available to attend the meeting, so the Director-General (DG) would take the SC through the memo, which explained each question and answer.
Mr Tommy Makhode, DG, DHA, presented.
The Department had clustered responses into seven thematic areas. There were also comments that were of a general nature, and the Department was willing to respond to those issues, even if it was in writing.
The themes were as follows:
- The reserving of the 200 seats in the National Assembly (NA) for political parties;
- Discarded (or “wasted” votes) and proportional representation for independent candidates (ICs);
- Long-term and broader electoral reform;
- The allocation of seats in the NA versus the provincial legislatures;
- ICs contesting more than one region;
- The signature requirement.
The memo detailed the comments that related to each theme, and the Senior Counsel’s responses to those themes. The Senior Counsel referred to the relevant sections of the Constitution, the Local Government: Municipal Structures Act, and the Electoral Commission Act.
(See DHA Memorandum Document)
The Minister added that there were two issues that he felt that the National Council of Provinces (NCOP) “must take very seriously”. The issues that he was going to mention were what he felt was the key to the complaints that the Bill was unfair and unconstitutional.
He addressed the issue of the signature requirement. He wanted to explain the background of that requirement. The Counsel said that the 1996 Electoral Commission Act founded the Electoral Commission of South Africa (IEC). In the regulations of that Act, the issue of 1 000 signatures was mentioned. The Counsel mentioned that in relation to the deed of foundation. I.e. a political party, in its deed of foundation (or “founding document”), must show that it has support in the population, so that there would not be a situation of political parties with one, two, or even ten people being registered. For that reason, the figure was put in part 45.3, (i) (ii) and (iii) of the memo that the Senior Counsel presented. Namely, if the person wanted to have a national footprint, they would need 1 000 signatures. If the person believed that they would confine themselves to a region, then they must get 500 signatures. A person would need 300 signatures for an application in respect of a
particular district or metropolitan municipality. For obvious reasons, nothing could be said of ICs previously, because there were no ICs in the national and provincial legislatures. ICs were found in local government only. That was how the electoral system had been operating since 1996. In 2020, the Department was compelled by the Constitutional Court (Constitutional court) to include ICs in the provincial and national legislature. A problem now arose – if the deed of foundation for a political party needed a certain number of signatures, then what about an IC? ICs were not required to have a deed of foundation, nor to register as an IC. Even in local government from 1996, South Africa had not been doing so; ICs were not required to register. However, qualifying criteria for ICs were needed; one would not wake up one day to find particular ICs on the ballot. ICs needed to have certain numbers to show that they had some kind of support. Parliament was therefore compelled to put something to that effect in the Act, so that ICs could appear on the ballot paper, while also avoiding having “a million names” on the ballot paper. The qualifying criteria consisted of money deposited, and signatures garnered. There did not seem to be a lot of discussion and criticism about the deposit. The issue was signatures, and people were going back to compare with how things were in 1996. In the Electoral Amendment Bill, Parliament said that for an IC to appear on the ballot, the signatures must come from 50% of the votes required to win a seat in the previous election. That was what Parliament decided. After a long time, Parliament said that 50% was too high, and it was taken down to 30%. Eventually, it was taken down to 20%. That meant that for an IC to appear on the ballot, the person required a number of signatures that were equivalent to the number of votes that were needed to win one seat in the previous elections. The 20% threshold was confusing people – some were taking it as 20 000 votes, when it was actually 20%. Regarding what happened in the previous elections, 20% was equivalent to about 8 000 votes. 20% of the votes needed for one seat in the previous election referred to the elections that took place in 2019. ICs would therefore need to acquire 8 000 signatures in order to appear on the ballot. People were comparing that to the 1996 deed of foundation for a political party, which required a maximum of 1 000 signatures. People were saying that it was unequal. The Department agreed that it was unequal, and it thought that the NCOP must “cure” that inequality. That was why the Bill needed to have something that did not exist inserted into it from the NA. The NCOP needed to insert provisions for new political parties wherein new parties that wanted to appear on the ballot needed to present the same number of signatures, as required from ICs. The Bill needed to say that for both the ICs and the new political parties, once they produced those signatures, and won a seat in the NA or provincial legislature, then those signatures were not needed, because such newcomers had already proven themselves. That was to make sure that the new candidates were equalised with the current political parties. Even in the Bill from the NA, the signature requirement was not required from the political parties that were already in Parliament. The reason was that such parties had already proven that they had support. The fact that such parties had a seat, even if it was just one seat, showed that there was a certain number of South Africans who appreciated and supported that party. Thus, in the Bill from the NA, the Department was asking the NCOP to insert a provision that the number of signatures required for a new political party or independent to appear on the ballot must be the same. The second aspect that needed to be added was that once new candidates won a seat in the subsequent election, signatures would no longer be required from them.
The Minister also addressed the issue of constituencies. The “clamour” for constituencies had “pervaded the whole debate”, and “destroyed” the essence of the debate. People said that they wanted constituencies; without constituencies, Government would be “running away from responsibility”. There was a belief that political parties currently participating in Parliament wanted to be gatekeepers, and did not want to be voted out, and that was why the parties were uniting in keeping out ICs in constituencies. People who believed that narrative also believed that once there were constituencies, which were contested by ICs, all political parties presently in Parliament would be “wiped out completely”. The Minister was not there to debate whether that was true or not. People believed that constituencies would be a game-changer in the present system, which was broadly represented by political parties. The Department was not, in principle, fighting against the issue of constituencies. It never took a decision that there would never be constituencies. The Department did not answer that particular question because, in the Constitutional court ruling, constituencies had not been provided for, nor was it an issue. Justice Mbuyiseli Madlanga, in paragraph 15 of the judgement, clearly said that the issue of constituencies was the purview of Parliament, and was not part of the judgement. Parliament had to make a decision on whether it would look into the issue of constituencies. The Department preferred not to answer that question because there was “no time” for the issue of constituencies. The Ministerial Advisory Committee (MAC) had said that the Department needed to choose between two options. Option two said that the Department must divide the country into 200 constituencies, where ICs and political parties would contest, and the other 200 seats would be contested in the way that they were previously, i.e. by way of compensatory seats, which came directly from political parties. If the Department took that option of dividing the country into 200 constituencies, then it meant that Parliament would have had to pause and start a new legislation. This new legislation would provide for a demarcation board. The present board that demarcated municipalities, districts, and wards was under the Municipal Board Demarcation Act. The name “Municipal” indicated that such an Act was not meant for national elections. The 200 constituencies mentioned by the MAC did not exist; there were not 200 geographic areas in South Africa to which one could point and say that one could use those areas. It meant a completely new demarcation altogether. In turn, that meant that one must have an Act that allowed one to make that new demarcation. Some people were saying that the Municipal Demarcation Board Act needed to be amended in order to make it applicable at a national level. The Minister would leave the legality of that to lawyers. Even if that was to happen, it would need a lot of time. Even if the Department were to take the Municipal Demarcation Board Act and say that it was amending it to make national demarcations, then there was “no way under the sun” that that would happen within a period of 24 months. That was why people were saying that there was not enough time for the present Bill. The Department realised that that was not the way to go. Some people in civil society believed that the Department needed to go that way and move the 2024 elections further away. The Constitutional court would never agree to move elections. The Constitutional court had never agreed with local government on moving elections, even during the Covid-19 pandemic. It did not agree that Covid-19 was a good enough reason to move elections away from what the Constitution was prescribing. The time periods within which elections needed to take place were prescribed within the Constitution. It could not be changed randomly by the Department or by the Electoral Commission of South Africa (IEC). One would have to go to the Constitutional court, and it had already rejected that, meaning that there was no chance that it would agree to move the 2024 elections. If the elections took place, there was no mechanism with which the Department could immediately put up a new Act, or amend the Municipal Demarcation Board Act, put up a demarcation board, and from there start dividing the country into constituencies. The Minister wanted people to be honest, both politically and practically. Even with municipal demarcation boards, there could be a scenario where communities become restive, and did not just accept the demarcation. Such communities would need a lot of time for consultations. All were aware of what happened in Vuwani, in Limpopo. This was just when the board was demarcating one part of the country into a municipality; one was not talking about the whole country. Fifteen schools were burnt down, and “all hell broke loose”. It was not that there should not be constituencies; it was just that the Department needed a lot of time in order to convince communities to not “burn the country” in order for them to accept what was coming, and for them to understand it. There were political parties that were formed from the demarcation of provinces. There was a political party in Parliament that had been formed around the issue of Matatiele. Matatiele had been in the Eastern Cape for a long time. There was still a debate saying that it must be re-demarcated into KwaZulu-Natal (KZN). If the Department went that way, as was the “clamour” from civil society, it would need time to do so. In that Bill, the Department realised that it did not have time to attend to that matter, and it steered away from that. Unfortunately, that was a serious point of contention. The NCOP needed to find a process, as was being advised by the Senior Counsel, of satisfying South Africa that the Department had not made any ruling against constituencies. It was just saying that there was no time with the present Bill to deal with that matter in time for the 2024 elections. Time was also needed to satisfy people that after 2024, Parliament and South Africans as a whole still had the right to start that debate on whether the country needed to get into constituencies or not. That was why the Senior Counsel was proposing that perhaps the NCOP needed to rule that a special committee of experts be appointed to decide whether the constituency system was good for the country. If it was good for the country, then in what manner must it be done? The Senior Counsel believed that Parliament was not the right structure to do so, because it was incumbent. There were already positions on that issue, so there might be greater focus on how it would affect Parliament’s parties. The issue of constituencies was debated at the Convention for a Democratic South Africa (CODESA); it was not something new. The Minister observed that the constituency system was debated, and South Africa chose the present system. If the system were to be changed, another thorough debate would be needed. He urged the NCOP to show people who believed that political parties wanted to lock out constituencies to protect themselves that that was not the case. The NCOP could do that by putting something in the Act to say that the matter of constituencies would be looked into after 2024.
The Chairperson observed that the presentation also made reference to individual comments. She felt that that document needed to be provided to the Committee for its records. She thanked the Minister for providing context on the two points that he had elaborated on.
Responses by the Electoral Commission of South Africa (IEC) on written submissions received on the Electoral Amendment Bill [B1B-2022] (S75)
Mr Mosotho Moepya, Commissioner, IEC, introduced the presentation. He was grateful that the policy issues and questions had been dealt with by the Minister and the DG. The IEC would deal with technical questions around the Bill. It had done so with the view that the questions would hopefully be clarified in simplistic terms.
Mr Sy Mamabolo, Chief Electoral Officer, (CEO) IEC, presented. He noted that a substantial portion of issues raised in the public comments were of a technical nature, which had, unavoidably, required a technical response. There were annexures that went with the IEC’s submission. He did not propose to deal with the annexures, since they involved mathematical calculations. The annexures had been submitted for the record, and should there be a need on another occasion for the SC to go through those annexures, the IEC would stand ready to participate. The IEC would deal with the logic arising from the analysis in the model that was created.
The IEC wanted to reiterate that its understanding was that the Constitutional court ordered Parliament to ensure that ICs participated within the current constitutional scheme, which resulted in general proportional representation. The Constitutional court did not order any specific electoral system; it ordered that whatever system Parliament may come up with, must subscribe to the general proportional representation standard. The proportional representation system was subject to distortions with the introduction of elements such as the participation of independents.
The document addressed the following themes:
-Conception of Proportionality;
-The Present System;
-Implementation of the Electoral Amendment Bill;
-Alternative Models (Single-Member Constituencies, Proportionality Determined by Party Ballot Only_
Responses by the Parliamentary Legal Services on legal issues on written submissions received on the Electoral Amendment Bill [B1B-2022] (S75)
Ms Talana Halley-Starkey, Parliamentary Legal Advisor, Constitutional and Legal Services Office (CLSO), presented. The delegation included Ms Daksha Kassan, Parliamentary Legal Adviser, and Adv Siviwe Njikela, Senior Parliamentary Legal Advisor.
• The CLSO considered the written submissions received and extracted the legal and constitutional issues therein.
• CLSO divided the contents of the submissions into overarching themes and summarised the legal and constitutional issues raised by submitters under the said themes.
• The submissions raised many technical issues, for example the effect of recalculations, how seats are allocated, why there is only one ballot for the provincial legislature etc. which have been addressed by the IEC and the Department.
• The purpose of this presentation is therefore limited to addressing certain legal issues.
The presentation addressed submissions on various aspects of the Bill, with CLSO’s responses to the submissions included. There were submissions on the following: Definitions; ICs contesting multiple regions and non-aggregation of votes; deposits; signature requirement; regional seats versus compensatory seats; discarding excess votes; vacancies; and recall of members/public representatives.
Adv Njikela expanded on the last point of the presentation, which was that the Constitutional Court deadline by which the Bill must be passed is 10 December 2022. There were proposals made by the IEC. It would appear to the CLSO that such an approach was likely to have an impact on the ability of Parliament to meet the deadline. It was saying that without commenting on the merits of what had been proposed. It was not a reflection on the merits of what was being proposed, but CLSO was trying to find a reasonable way to accommodate everybody in terms of the deadline. He observed that CLSO had to request an extension, which took it to the end of December. The deadline for the Bill was less than a month away. On top of that, any amendment that the SC proposed at that stage would have to be considered by the NCOP. If such an amendment was adopted, then it had to be referred back to the Portfolio Committee on Home Affairs. That was the concern in terms of the timeframes. Once such amendments were before the Portfolio Committee, it would have to put out a call for public comment. All of that, cumulatively, would have an impact on the ability of Parliament to meet the deadline. There was the risk of some of those amendments impacting a number of Acts. That would have to be considered. CLSO had some strategic suggestions for the SC. One proposal was around the Acts that could be impacted. It referred to the Political Party Funding Act, the Financial Management of Parliament and Provincial Legislature Act, Electronic Communication Act, and the Electoral Commission Act.
A Member highlighted that it was hard to follow Adv Njikela.
The Chairperson said that the SC was having difficulty hearing what his proposals and strategic suggestions to the SC were. She asked if there was another way this can be submitted to the Committee.
Adv Njikela advised that his colleague take over.
Ms Kassan said that CLSO would discuss things with Adv Njikela, and then provide options to the SC in writing regarding the strategic options available to the SC.
The Chairperson replied that that would be fine since the SC would have a meeting on Wednesday. CLSO could submit before the meeting, and expand on its points in the next meeting.
Mr M Dangor (ANC, Gauteng) addressed the fairness in the allocation of seats in the NA and provincial legislatures. He also addressed the matter of fairness in the allocation of seats for ICs in the NA and provincial legislatures. The idea of reserving 200 seats for political parties in the NA excluded ICs. Constitutionally, South Africa’s electoral system was based on proportionality and was designed in its architecture to accommodate that. The entry of ICs in such a system, therefore, had to be accompanied by a manner of balancing proportional representation with ICs. Therefore, it was a consideration of reserving 200 seats in the NA for political parties allocated proportionally. In that way, there could be a combination of party lists and ICs. The outcome in terms of the Constitution must result in a proportional representation of ICs and parties. The danger that emerged with ICs was that their nature could skew proportionally the will of the electorate. In the NA, the 200 seats for parties and for the ICs that allowed for an equitable formulation could be skewed.
On the filling of vacancies, Mr Dangor said that it was indeed important to fill vacancies if they arose, both for ICs and political parties. It was easier for political parties, given that any voter that voted for a political party could vote for the party at that particular point in time which allowed the party to provide a list of candidates for Parliament. That was the practice currently, and therefore there were no reservations regarding that. The challenge arose with ICs given that ICs contested as individuals, and voters had voted for that specific individual. The transferring of votes between ICs would not be consistent with the desire of the voter. The voter voted for that specific individual and not a group. It made sense to apply a recalculation method to determine the next candidate to secure a seat. It was also logical to disregard the votes for the candidate that created the vacancy in the recalculation. That would give lower-ranking candidates a greater chance of securing a seat resulting from a recalculation. The call for a by-election would put the country into a perpetual election mode. Thus, the recalculation would become easier and more convenient for filling a vacancy.
Mr E Mthethwa (ANC, KZN) said that when the Minister was presenting the Bill to the SC, he listened to the Minister very carefully. The Minister used the example of a bottle store owner and somebody from the community, where the bottle store owner won the election. Now and then, Mr Mthethwa put that Bill into that example. He was convinced that with the issue of a signature, nobody was responding to it adequately because people could manufacture signatures. Secondly, rich people were the only ones who could succeed in “doing whatever they want”, and not on the basis of being a popular candidate. Thirdly, he was not convinced of why the SC was not going back to the Constitutional Court. He was aware that during the height of the Covid-19 pandemic, there were various issues. The SC was not opposed to what the Constitutional Court said. But due to the fact that the SC was not given enough time to study the Bill and ensure that everyone out there came up with the right choice, the Bill would “divide the country into pieces”. It was difficult for Members to understand the content of the presentations. Members still got more questions than answers. He felt that the NCOP had never had enough time to look at the Bill. He pleaded for the Constitutional Court to be “considerate” to the SC to ensure that it had enough time. For the 2024 election, the Bill would not be ready.
Mr T Dodovu (ANC, North West) said that the NCOP had the responsibility to save the country from “an eminent constitutional crisis” if it did not ensure that by 10 December, it adopted the Bill and the President signed the Bill into law. Therefore, the NCOP could not afford that situation. The comments presented demonstrated the fact that South Africans had presented a number of proposals. Some of the proposals formed part of what the Constitutional Court ordered Parliament to do. Some of the comments fell outside the scope that was determined by the Constitutional Court. The SC needed to do precisely what the Constitutional Court requested Parliament to do. The Constitutional Court said that Parliament must amend the Electoral Act to accommodate ICs. The Constitutional Court had not directed Parliament to amend electoral law. If the SC could stick to that, it would help Parliament to meet the deadline. The SC needed to consider all of the necessary aspects, which would be geared towards accommodating the ICs, as directed by the Constitutional Court. As to what would happen in the future, the SC must then propose to look at South Africa’s electoral system in totality. That could happen after the process of adopting the Bill in line with what the Constitutional Court had requested Parliament to do. The “temptation” was there to go beyond the scope of the Constitutional Court judgement. His view was to avoid doing that because it would not help the SC, or Parliament, to meet the deadline; it would put Parliament into a “constitutional quagmire” which it needed to avoid.
Those who proposed the constituency-based model were saying that they wanted to enforce accountability. Who said that the current system, with all its checks and balances, did not afford accountability? In all the experiences globally, one could not say that a constituency-based model was the best to the extent it enforced accountability at the expense of other electoral systems. That argument was neither here nor there. Mr Dodovu’s appeal was to do as the Constitutional Court requested. The seven points presented that day, whether it was on vacancies, the “200 model” of complementary seats and regional seats, fairly accommodated what Constitutional Court required. That also included the fact that Parliament would ensure that ICs contested in more than one region. Initially, it was proposed that ICs could only contest in one region. For now, the Bill accommodated ICs in all the regions. For him, it went a long way in addressing that issue. On the issue of signature requirements, he thought that the proposal that was on the table was that the 20% requirement must apply to both new political parties and ICs. That way, it was fair to the ICs. In general, it was inevitable that the Bill as it stood required certain amendments that the SC needed to recommend to the House. The SC had identified those particular areas, and that was what it needed to do. Going forward, the SC needed to insert a provision (as proposed in a submission) that there was a need for a committee of experts. That committee could look at the whole electoral system, and make the necessary recommendations to the House, to Parliament, to Government and the IEC. Such a committee needed to encourage civil society to participate in that regard. With all the limitations that the SC currently had, Mr Dodovu felt that the SC must support the proposals as they were. Additionally, the SC needed to fast-track that process. Inevitably, the Bill would have to go back to the NA so that it could look at the amendments that the SC had inserted. Thus, the SC would move the process as expeditiously as possible to ensure that it met the deadline. For him, that was doable as long as the SC stuck to what the Constitutional Court requested Parliament to do, namely to include ICs. The Constitutional court had not directed Parliament to come up with a new electoral system.
Mr I Sileku (DA, Western Cape) did not want to dwell on particular issues without having read what the Senior Legal Advisor from Parliament had suggested about “bypassing” the issue of the Constitutional Court deadline. But something that was consistent since the Committee started deliberating on the Bill was the issue of the deadline. One had to wonder if it was fair for the NCOP to be put under so much pressure. In relation to public participation, how long had the NA dealt with the Bill? He was asking the Department of Home Affairs (DHA) to tell the SC and the country as a whole how long the NA had to solicit views in the public participation process, and then to make amendments and reconsider particular aspects. He appreciated what the Minister had told Members about the electoral system since 1996. In 1996, no one thought about ICs wanting to contest provincial and local elections when it came to the terms on signatures. He was grateful that the percentage of signatures went down from 50% to 30%, and was now at 20%. But his questions were always about fairness – why did the Bill stick to 20%? Why not 5% of the signatures for ICs? He still felt that that requirement was unfair. As much as political parties were required to get 1 000 signatures, if one went to the IEC website, one would find that there were political parties that did not even get 1 000 votes in the last election. In the issue of fairness, one had to look at both sides, and consider history and election results.
There was no guarantee that one would get so many signatures in order to be regarded as someone who could stand for public office. One would appreciate that new parties, in terms of the proposed amendment, were also going to comply with the percentage that the SC would agree on. The issue that he was more concerned with was public participation and the pressure that had been put on the Members to make decisions. He felt that Members had been “dealt a blow” by not being given enough time to process the Bill.
Ms M Bartlett (ANC, Northern Cape) said that with the 200 regional seats, was it possible to get clarity on that? The seats were allocated across the nine provinces and regions on a proportional basis, and that was taking into account the number of registered voters in each province. With the signature requirement, the ANC believed that there should be a remedy to equalise the signature requirements for both new political parties and ICs registering to participate in elections. That would ensure fairness, and therefore, the ICs and unrepresented parties should prove a certain percentage of the quota for one seat in the province or region that they were contesting. She also wanted to appreciate the informative presentations. The views were becoming clearer, and all Members understood what they needed to do. She supported what was presented by the various entities in the meeting. She also appreciated the Chairperson’s role in steering the Bill process.
Mr G Michalakis (DA, Free State) observed that the fact that he had heard more than once in the meeting that a panel would have to be put together at a later stage to reconsider the Bill the SC was currently considering was proof that the process was a “rush job”. He further observed that he and the Chairperson signed and took an oath binding them to the Constitution, and to serving South Africa to the best of their abilities. It was not serving the country or the people by rushing a bill through Parliament in that way. He would not be rushed in doing his job of doing his duty to South Africa, not by any department, any minister, or by anyone at all. Members had a duty to make sure that the Bill that went through the SC was well-thought through. He felt that the Members who were saying that the SC could not afford to miss a deadline did not quite realise that the SC could not afford to have a “half-baked Bill” dictating to the country what their democratically-elected government should look like for the next five years. It was “absolutely ludicrous” to rush through something that would determine what South Africa’s democratically-elected Parliament would look like for the next five years, and then to try and then say that the SC would come back and fix what it could not fix because of a deadline. If it was necessary for the SC to try to extend the deadline, and what needed to be done, then the SC needed to start doing that. He observed that if the SC was going to make amendments to the Bill, it would still need to go to the NA as well.
He made a request to the Chairperson that when the SC started the deliberations, he wanted the SC to deal with two important procedural issues before it started looking at the content of the Bill itself. The first procedural issue that he thought the SC needed to discuss was the public participation around the Bill in the NCOP process. There also needed to be a discussion about the tagging of the Bill. The SC had received a presentation on that, but he felt that those two issues needed to be clarified before the SC started looking at the substance of the Bill.
Mr K Motsamai (EFF, Gauteng) made remarks [not in English review video 3:32:46-3:33:28].
Mr Dangor felt that the SC should consider carefully what Mr Dodovu said. The SC did not want to plunge the country into a constitutional quagmire or challenges. The SC needed to look at the passing of the Bill with amendments that it would consider, and send it back to the NA to consider. On the larger question of electoral reform and the question of constituencies, perhaps after the Bill process, the SC could recommend that a committee of experts and parliamentarians be established to discuss the entire electoral system, as was done in 1994. Such a committee was needed, and possibly the convening of a conference or anything else to discuss that matter. The SC was compelled by the court to undertake a task in relation to the electoral amendment Bill. He suggested that the SC recommend that such a committee be established to look into electoral reforms.
Mr Dodovu read out questions from Ms A Maleka (ANC, Mpumalanga). Ms Maleka observed that it was inevitable that there would be discarded votes (or “wasted votes”) in the elections. With any elections in the world, in any electoral system, one found that situation. Given that a threshold was required for a seat, it meant some parties or ICs, at some point, would either have lower votes to secure a seat, or have more votes for one seat, but fewer for more than one seat. The ANC agreed that there was little that could be done if independent candidate A was required to have (for example) 40 000 votes to get a seat, and the candidate only had 35 000 votes. The vote did not reach the required threshold, and therefore nothing could be done with such votes. In the same vein, if a political party had secured 100 000 votes, and the seat required 40 000 votes, the political party could only secure two seats. The remaining 20 000 of the 100 000 votes would have to be discarded. That was a practice the world over. It had been part of South Africa’s electoral system since 1994. A further example was the case of ward councillors. The votes for a ward councillor who lost a ward in the elections were discarded. There was nothing that could be done with such votes.
Mr Dodovu made two reflections. There was no rush with the Bill. The SC was acting on the basis of the Constitutional court. The Constitutional Court was clear.
Mr Sileku interjected with a point of order.
The Chairperson replied that she did not understand Mr Sileku’s request because the SC was having deliberations. If he wanted to raise a point of order, then he needed to raise his hand and make a point.
Mr Sileku said it was not fair for Members to respond to other Members regarding their views. He had allowed Mr Dangor to respond, and then Mr Dodovu was responding to what Mr Michalakis had said. He felt that that was unfair.
Mr Dodovu replied that he was not responding to anything; he was making a contribution based on the three presentations that the SC heard. Based on that, there were cross-cutting issues. He observed that the Constitutional Court gave Parliament two years to finalise the Bill. Bills or matters of that magnitude did not require two years – it was about South Africa, which adopted a particular electoral system in 1994. The imperatives of that judgement said that Parliament must correct the situation within two years. To the extent that the magnitude of that particular matter was great, Parliament had to request an extension of six months. The SC was given the responsibility as representatives of the people to sort out the matter of electoral reform. The SC could not undermine the Constitutional Court judgement. The deadline was 10 December 2022. He believed that it was within the SC’s means to achieve that. Within the last three weeks, the SC received several presentations about that particular matter. It had internalised what the DHA and the legal advisors had said about the important amendments that the SC had to consider. The ball was in the SC’s court, and it needed to do as it was instructed, and not undermine the electorate. Mr Dodovu felt that the SC was on course, and needed to continue along those particular lines until it concluded that particular work. What was evident was that South Africa needed to revisit its electoral system, and that was what the SC was doing, within a limited time, and with the constraints that it was facing. He felt that that (finalising the Bill) was a good fundamental point of departure that it needed to follow to ensure that at the end of the day, the SC did not jeopardise the future of the country, did not put the country into disrepute, and the elections were held in line with the imperatives of the Constitution. After listening to the three presentations, he felt that the presenters were trying their level best to ensure that the SC realised that objective. That was what Members of Parliament (MPs) needed to do to ensure that they took the Bill process forward.
The Chairperson said that it was not correct if certain views were being distorted in the meeting. In the SC’s next meeting, it would go into more detail on certain matters. She felt that it was important to clarify what Mr Michalakis said. The engagement on electoral reform was something that South Africans should continue to engage in, and it may be a policy proposal for the coming Parliament. Nowhere did it say that the current system is flawed. With the current system, the SC was dealing with addressing issues of equality, amongst other issues. She encouraged the SC not to “distort” some of the information that came forth in the presentations. Regarding a question on the NA process and the timelines for public participation, she did not think it was a matter for the Minister to respond to. She felt that the context of how the SC dealt with the Bill was in terms of it being tagged as a section 75 Bill.
Mr Moepya responded to comments on what issues the Constitutional Court had raised. The IEC understood that to mean the insertion of ICs in the elections of the NA and the provincial legislature. On the allocation of seats, and the fairness in the reservation of the compensatory portion of that: The IEC understood that to be a balancing of the practical choices versus the requirements of the Constitution. The introduction of ICs would induce an imbalance in proportionality. It rendered the system, to an extent, not proportional. The IEC believed that what was before it was to fix that, as far as possible, in terms of the constitutional requirement, which said that the IEC needed to seek proportionality in general.
The transferring of votes was a policy issue. But the IEC understood that that policy was something the SC was dealing with. It was unfortunate that the IEC would deal with the strategies to deal with the issue [unclear which issue is referred to 3:46:39] beyond that point. That was indeed a relevant question that was before the SC. The IEC was “anxious” for those matters to be addressed.
The Minister responded on the issue of signatures. Mr Mthethwa had argued that the nature of the signature requirement was not adequately explained. Signatures were needed as qualifying criteria. For political parties, signatures were needed because the Department did not want anyone to “just wake up and form a political party” when there were only one or two people involved. The Department wanted to see a measure of support. That was indicated by signatures. With ICs, the Department did not want someone to “just wake up and say, ‘I’ve heard that independents are allowed in Parliament, and I want to stand’”. Then one could have a scenario where there is a ballot paper with “a million names on it”. The Department needed a form of seriousness and a demonstration of tangible support. Signatures had been needed since 1996. He did not know why signatures would suddenly become a problem. The issue was the equality in the number of signatures needed between ICs and political parties. The Department had given a proposal on how to remedy that. The IEC had also done the same.
There was also a question about going back to the Constitutional Court to extend the deadline: it was up to the NCOP to do so. The NA already went to the Constitutional Court to say that it could not finish its work within the time given, and it was given a six-month extension. It was the right of the NCOP to do so. As to whether the Constitutional court would agree or not, and whether it was a wise move, the Minister was leaving that to the NCOP.
On public participation, the Minister felt that that question should be directed at the NA, and not the Department.
On the number of signatures, Mr Sileku had said that he did not want 20%, and wanted 5%. When it started, the signature requirement was at 50%, then after deliberations, it went down to 30%, and then to 20%. Now Mr Sileku was saying that he wanted it to go down to 5%. Why not 2%, or 1%, or 0.5%? If one “kept on throwing numbers around” without anybody trying to approximate them to a practical instance, then it was a problem. People thought that 20% would be adequate, taking into account the number of votes that were needed to win a seat in the last election. The Department believed that it was reasonable, otherwise one would “keep on playing around with numbers”. The 5% that Mr Sileku was choosing was still higher than what political parties needed to have in order to register a party. The Minister felt that the most important thing was equality between what was required in terms of signatures between a political party and an IC.
The Minister observed that Mr Michalakis said no-one can force the Bill process to be completed within a particular period; neither the Minister, nor others. Mr Michalakis was incorrect. The Constitutional Court had the power to force a particular process. South Africa was a constitutional democracy, where the court had the last say. An MP could be forced by a court of law, and the Constitutional Court had done so. He referred Mr Michalakis to the Hansard, specifically a speech by Mr Mangosuthu Buthelezi when he was the Minister of the Home Affairs. This was when the Immigration Act was debated in 2002. Mr Buthelezi said that that bill was not how he wanted it to be, but the Constitutional Court judgement forced him to pass it at a particular date. Because there was a deadline set by the Constitutional Court judgement, he was forced to finalise that bill. There were numerous cases where the Constitutional Court gave a particular period in which to pass a bill; the court had the power to do that. It was not only about the Electoral Amendment Bill. One could look at court rulings; there were many occasions where ministers were instructed by the court to ask Parliament to finish something within a particular period. In the case of the Bill, Parliament was given 24 months, and the NA went back to the Constitutional Court to ask for an extension. The deadline was extended by six months. Parliament had to work within that time frame.
The Minister addressed the proposal about the panel: Mr Michalakis mentioned a panel to amend the current Bill. Such a panel would not be amending the current Bill. It was about debating the type of electoral system that South Africa must have. The proposal was about an electoral system, and whether the country could continue with the current electoral system, or whether it needed to have a constituency system (or another type of system).
The Chairperson said that there was agreement (in a broad sense) between the three presentations.
Mr Sileku did not say he wanted 5%. The Department gave the history of where it started. When deliberations started, the signature requirement was 50%, it went to 30%, and then 20%. He wanted clarity on how the Department and the NA came up with 20%.
The Chairperson summarised the key issues raised in the meeting. There was the issue of equalising the signature requirement to ensure fairness. There was also the issue of vacancies and seats. It addressed comments related to an error in the methods to award a seat left vacant by an independent who had been elected to more than one legislative assembly. There was a proposed amendment by the IEC to Schedule 1A to address that matter. The third issue was about ICs contesting more than one region. With that issue, the Department proposed the possible inclusion of a rule where seats would be allocated to an IC in the event that the IC received a seat in more than one region. There were also submissions on broader electoral reform post-2024 elections. Those were matters for further discussion by the SC. The issue of procedural matters was also raised. Tagging had been discussed in a previous meeting, but if Members still wanted to discuss it, it was not a problem. On public participation: That was not the first Bill that was contentious in the public domain that the SC was dealing with. With the timeline to process the Bill, there were sentiments that the SC could deal with expeditiously. The legal section was also ready to make a proposal around a strategic approach in relation to the Constitutional Court deadline. The legal section would do that in writing.
The next meeting would be Wednesday 16 November. The Chairperson thanked the Members for their contributions to the discussion.
The meeting was adjourned.
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