The Select Committee had deliberations on the Electoral Amendment Bill [B1B-2022] (section 75). The Bill was currently before the National Council of Provinces (NCOP) after Members of Parliament in the National Assembly voted in favour of passing the legislation last month.
The Select Committee indicated that it would propose amendments to the Bill after considering the public submissions it received on 9 November. The Select Committee would send the legislation back to the Portfolio Committee on Home Affairs, which was tasked to amend the Electoral Act No 73 of 1998 to allow independent candidates to contest elections. The Select Committee was likely to propose amendments on the Electoral Amendment Bill. That would mean that when the Bill was returned by the NCOP on 29 November, the Portfolio Committee would have to meet again either to agree or disagree with the proposed amendments.
The Bill – which has to be signed into law by 10 December 2022 as per the June ruling of the Constitutional Court – would also have to be voted on and adopted by the National Assembly again after dealing with the NCOP amendments.
The Committee deliberated on several matters that had come out of its previous engagements. The Members began by discussing procedural matters related to public participation. There were views that the Committee had done sufficient public participation, and differing views that the Committee should do more public participation, including oral submissions and ask the Constitutional Court for a further extension. The Committee as a whole agreed that as it was a Section 75 Bill that it had canvassed sufficient public participation
The Committee also discussed substantive matters about the Bill. On signatures requirement, the proposal was to equalise the requirement for independent candidates and political parties at 20% of the seat quota. There was also the point that independent candidates, like represented parties, if elected should be exempted from the requirement in a subsequent election.
On vacancies left by independent candidates, the Electoral Commission proposed a redraft of items 7 and 12 of Schedule 1A. Item 7 dealt with the forfeiture of National Assembly seats and item 12, which dealt with seat forfeiture in a provincial legislature. In its current formulation, when one recalculated seats by excluding independent candidates, one safeguarded an independent candidate who had won a seat “cheaply” in the provincial or national legislature. The current drafting did not accord the same protection to a candidate on a party list. The rephrasing would bring parity in how Schedule 1A dealt with independent candidates. The IEC felt that the Bill would be infinitely improved by that technical adjustment.
Committee members had questions on independent candidates being allowed to contest in more than one region, especially the rule that governed a seat that would be allocated to an independent candidate in the event that they received a seat in more than one region. That had to do with the current Bill, which was based on the largest number of votes. The proposal was that the seat should be allocated based on the largest proportion of votes.
Members also commented on the matter of broader electoral reforms after the 2024 elections, and there was a proposal that there be a provision in the Bill about this electoral reform.
The Chairperson noted that in the previous meeting, the Committee received briefings from the Electoral Commission (IEC), Department of Home Affairs (DHA) and the Constitutional and Legal Services Office (CLSO) and it was decided that this meeting would focus on specific procedural and legal matters. The CLSO wanted to table a strategic approach. There were at least four other issues that were brought out from the IEC and DHA presentations. The Committee would start with the procedural matters.
Ms C Visser (DA, North West) asked about independent candidates (independent candidates).
The Chairperson reminded the Committee that it was dealing with procedural matters such as tagging. It was not yet dealing with the substance of the Bill.
Ms Visser asked about public participation. There were recommendations, uncertainties and clarifications from the first public participation session that were considered by the Portfolio Committee. However, after the Bill was passed in the National Assembly, those changes did not reflect clearly to voters, i.e. they could not see clearly what had happened to their recommendations. Community organisations were not satisfied when informed of the changes made to the Bill based on the recommendations that they had made. The public participation process needed improvement in light of that. What would the Committee do about that?
Mr M Dangor (ANC, Gauteng) felt that Members were now going into the substance of the Bill.
The Chairperson observed that Ms Visser was talking about a process in a different House. If Ms Visser wanted to speak about the process within the National Council of Provinces (NCOP), then the Chairperson suggested discussing that matter. She encouraged Members to separate the two issues (i.e. procedure and substance of the Bill) and deal with the Select Committee's own procedures.
Mr G Michalakis (DA, Free State) said he had previously raised the tagging of the Bill and public participation. With tagging, he felt that the Committee could proceed on the basis of a section 75 Bill. He had done some reading on the requirements of a section 75 Bill. He submitted that simply because something had an effect on the provinces, did not mean that it fell in the ambit of Schedules 4 and 5. He was satisfied about that.
On public participation, there were two ways to look at it. The first was to take the approach that the Chairperson just mentioned, namely that the procedure in another House was irrelevant to the Committee’s own procedure. He heard what the Chairperson said. However, he felt that Members had a duty, in an instance where there was suspicion that the other House did not do public participation in a satisfactory manner, the NCOP had an obligation to ensure that it filled those gaps, and did proper participation on its side. However, if the Committee looked at only the public participation in the NCOP, it had called for public participation. It had done so through the normal means of advertisements and people making submissions. But he did think that the Bill was one where the impact of it was so far-reaching that it impacted all people. He was not quite satisfied that the public participation process followed had reached all citizens affected by the Bill.
Mr Michalakis understood that the Committee had limited time, but it could also apply the argument that the delay on the National Assembly side should not deter the Committee from doing a proper job. He felt there might be citizens affected by the outcome of the Bill who did not have the opportunity with technology and access to know what the Bill is about, and to be able to raise their concerns. He suggested that the Committee follow a proper public participation process, as is followed in the NA. For example soliciting inputs from the public, instead of just using electronic methods of submitting by email, and through advertisements in newspapers. He was concerned that there might have been people who were excluded. When the Committee considered a Bill, it was important that the public knew about it, and that people felt that they had an opportunity to make an input. He did not feel that was the case. It might mean that the Committee needed to ask for extension – the Minister said that was in the Committee’s powers to do so. He felt that the Committee needed to consider if everyone affected by the Bill had a reasonable opportunity, not just to be aware of it, but also to be able to raise their concerns if there were any.
[Mr Michalakis wrote in the chat box: If this was a section 76 Bill, it would have gone to the public in a proper way. It is a section 75 Bill and in my opinion correctly so. Based on that, I think that electronic submissions cannot be adequate.]
The Chairperson observed that what Mr Michalakis raised was on public participation within the Committee’s processes, and in light of the fact that the Bill was a section 75 Bill.
Mr T Dodovu (ANC, North West) said there was no question that the Bill attracted a lot of attention and interest from the South African population in general. One could see a lot of discussion and debates in the media on the Bill. That Bill spoke to the heart of each South African because each South African who qualified to vote had the right to exercise their vote.
The Committee was sitting with a serious difficulty. The difficulty was the prescription made by the ConCourt which required Parliament to finalise the Bill within two years. Already, a six-month extension was granted. He did not see how the ConCourt would accede to the Committee’s request for an extension if it were to ask for one. With the work the Committee had done on the submissions it had received, finalising the process was within reach. His view was that the submissions the Committee had received now was sufficient in terms of written submissions. Inevitably, the Committee could not ignore the fact that by the 10 December 2022 deadline, it needed to finalise the Bill process. Due to time limitations, he did not see the Committee making any headway to convince the ConCourt to give an extension. In the past, with other Bills that it had received, the Committee had encouraged both written and oral submissions. A lot of people had appeared before the Committee and made oral submissions. The Committee had incorporated their views into the Bills that it had crafted and ultimately promulgated. While sympathetic to what Mr Michalakis was saying, Mr Dodovu wished that the Committee could finalise the Bill, taking into account the deadline that it had. He felt that the Committee should err on the side of caution. In that sense, he thought that the Committee needed to proceed to finalise the Bill. In an ideal democracy, one would listen to every view, because every view mattered. For now, he felt that the Committee needed to proceed and finalise the Bill without getting those oral submissions, or whatever additional ways it would use to encourage public participation.
Ms A Maleka (ANC, Mpumalanga) supported Mr Dodovu that the Committee needed to support the Bill and continue in such a way that it could meet the stipulated timeframe.
The Chairperson reminded the Committee that it was processing a section 75 Bill. In terms of its processes, it had always looked at public participation as either written or oral submissions. Based on the issues in front of it, the Committee would take a decision as to what approach it should take going forward. Members should consider where the Committee was in that process. If it had sufficient time, and it felt that it needed to have clarity based on the written submissions, it could call people to come and make oral submissions. But if the Committee was in a position where it was comfortable with what had been submitted to it, it was able to deal with the matters and to process them without the need for any more clarity.
The Committee could go to the process of requesting oral submissions. Members needed to give an indication as to whether they felt that what was currently on the table – what it had received, and what it had been engaging on from the first day – needed clarification. If Members felt that they were not clear on certain matters, and they would want verbal submissions, that was something that it could discuss. But perhaps it was “not necessary”. The Chairperson gave examples. When it dealt with the Civil Union Amendment Bill, there was also pressure from certain sectors of society, where they felt the Committee needed to hear them, and that their written submissions were not necessarily sufficient. However, because the Committee understood the content of what it was dealing with, and being public representatives, at the end of the day, the making of laws rested on its shoulders. It would consider the multitude of factors. There was also the Cybercrimes Bill, where the inputs were very technical, and the Members needed that kind of clarity, so that they could continue with processing the Bill and getting to a point where it could take the inputs forward. At some point, the Committee received a legal opinion as well on public participation. The fact that the Committee called for written submissions was part of the process. If the Bill was a section 76 Bill, then perhaps the suggestion of additional public hearings, etc. could be something that each province in the country would actually entertain and embark on that process.
Mr Michalakis made a second contribution. With regards to what he said in the chat box: He indicated that if this was a section 76 Bill, the provinces would have taken it for oral submissions as well in the proper way. He thought that since the Bill was a section 75 Bill; the Committee needed to fill that void, and it needed to ensure that public participation took place. In his opinion, that would be adequate public participation. He appreciated that public participation is important, and that it was a cornerstone of participatory democracy. He felt that the Committee needed to take it seriously. The only argument against further public participation that he had heard – with respect – was the deadline. He felt it was “terribly unfair” towards the NCOP. Whereas in the two-year timeframe that the Constitutional Court gave, the NCOP only got a month of those two years to not even consider this Bill, but instead it was starting to feel like the Committee had to “push it through”. That was not very fair towards the NCOP. The Committee had a duty to push back on that. One could not properly consider a Bill of that scale of magnitude, and the effect that it will have on the country, within a month's time. He believed that if the Committee needed to approach the Constitutional Court for an extension, then it needed to do so. What would have happened if the National Assembly decided that it was going to take another two weeks, then the Committee would have had two weeks to process the Bill? Would the Committee have kept quiet with that time as well? He felt that the Committee needed to say that it needed more time for its public participation process, even if it was just including oral submissions. That there were no oral submissions was lacking in that instance. Even if it was just to include that, the Committee needed to have a few extra weeks so that it could properly consider the Bill. The delay was due to no fault of the NCOP. Of the two years, the Committee only got one month. That was not too much to ask and the Constitutional Court would think the Committee was unreasonable in that. The Committee had not had adequate public participation. Just receiving written submissions, and not at least hearing out the people who submitted, if not members of the public who the advertisements could not reach. Including such people, at least the ones who had made submissions, in oral arguments would at least go a bit further. It was not adequate, but it was a step in the right direction. That would probably take a day to three days. The National Assembly did its public participation in a few days, which was also “not necessarily adequate”. The Committee could not be expected to rush a Bill through in one month if the National Assembly took almost all the two years given to Parliament. With the time frame being the only argument against public participation, the Committee owed the public and the Constitution the duty to ensure that the Committee covered the public participation requirements as set out in the Constitution.
Mr I Sileku (DA, Western Cape) felt that he had “pre-empted” that a particular debate would come up in the meeting, where someone would state a view, and someone would say that they second that view, without any substantive comments or contributions.
The Chairperson proposed that Mr Sileku focus on his input. She encouraged Members not to “dictate” how other Members should contribute.
Mr Sileku strongly denied that he was doing that. The Chairperson should not “prescribe” how he should contribute.
The Chairperson denied that she was prescribing how Mr Sileku should contribute; she was asking him to make his point.
Mr Sileku stated that the Chairperson could not “dictate” to him, because he had a right to say whatever he wanted to say.
The Chairperson replied that in the same way Mr Sileku was asking her not to prescribe to him how to contribute, he should not prescribe to her.
Mr Sileku said the Chairperson was the chairperson, she should chair the meeting.
The Chairperson started to say that she was chairing the meeting when Mr Sileku interjected to say “Chair the meeting; and keep quiet and let us talk”.
The Chairperson stated that she would not be told to keep quiet.
Mr Dangor urged the Chairperson and Mr Sileku to end that dialogue. He asked Mr Sileku to put his point across so that Members could understand what he was saying.
Mr Sileku was not saying that the Committee did not need to go out for public participation but the only impediment was the fact that there was a deadline. Surely as a House of Parliament, the Committee could not be dictated to by another House, due to the fact that the NA “took too long” with the Bill? The Committee would then say that the process was sufficient [IsiXhosa 53:26-53:29]; the Committee needed to continue because it had a deadline. That could not be an argument. The Bill would impact South Africans who had a right to vote. There were leaders that were going to make laws within the next five years. If there was a route to go to public participation, so that the Committee could satisfy itself to say that regardless of what had happened in the other House, the Committee, as legislators of this particular House, saw fit to say it also wanted an opportunity for people to raise their views on what had been recommended, and how people viewed the Bill. There were a lot of people who did not understand the Bill. He had a conversation with someone about the 20% signature requirement. The person did not understand what it meant and how it was applied. Even Members might not be able to explain the requirement and how it was calculated [IsiXhosa 54:55-55:00]. He suggested getting views on the deadline, to see if there was any way possible for the Committee to go the route of public participation. If not, then how could one remedy the situation?
Ms M Barlett (ANC, Northern Cape) said that it was not about rushing through the Bill, and it was not about seconding. It was about following procedure, and now the Bill needed to come to an end. It was not a competition for the Committee. Mr Sileku must not “dictate” to Members what they must say. She also supported what Mr Dodovu and Ms Maleka said. The Members could not be “dictated” to. Let the Committee just follow procedure.
Ms Visser observed that after listening to all the inputs that morning, she felt that the Committee must compare what it was doing with what the Constitution expected it to do in terms of public participation. Out in the communities, people were terribly confused about what was transpiring. It was the duty of the NCOP to facilitate public participation in the conduct of public affairs (the Bill was a public affair that affected everybody's life) by ensuring that citizens had the necessary information, and effective opportunity to exercise the right to political participation. Can the NCOP really say today that it complied with public participation, because if people went to the Constitutional Court, that would be one of the questions that would be asked. For example, was the Committee with people out there? The Committee was standing in between the National Assembly and the members of the public. The Committee could not just be used as a “rubber stamp” because of a timeline. She respectfully requested that the Committee think about that matter carefully, and that the Committee make the right decision not just to rush the Bill through because it was the end of the year. She encouraged the Committee to take its time with the Bill.
Mr Dodovu addressed the behaviour of Mr Sileku. There was one chairperson on the platform. If all Members were going to behave in the way that he was behaving, then the meeting was going to get out of order. A Member of Parliament could not argue with the Chairperson no matter how one felt about the issues at hand, and behave in a way that was not only condescending, but also did not respect the protocols of Parliament. It was wrong and it was uncalled for. Members needed to respect the processes of the meeting. He understood that the Committee was dealing with a very contentious issue, and that that issue was at the heart of what the Committee stood for, and what South Africa represented. But Members needed to be mature at all times. The second point was that Mr Sileku must not undermine the intelligence of MPs. He had said that some MPs even did not understand the calculations, they did not understand the Bill, and they did not understand what the Committee was talking about. Who were those MPs who did not understand? It was as if Mr Sileku had the monopoly of intelligence and thinking, over and above other MPs. Other MPs “waffled” and “prevaricated”; he talked sense, and that sense must be listened to by other MPs. He did not think that was the spirit in which the Committee should approach the debate. It was wrong, and in his view, it was really unacceptable.
He wanted to remind the meeting that the IEC had requested 18 months to prepare for the next elections. The 18 months included the fact that the IEC had to find a way of integrating the independent candidates within the system itself. For 26 years, South Africa was using a different electoral model that excluded the independent candidates. He did not think that the IEC was asking too much when it said that it needed 18 months to prepare for the elections. He urged Members to be practical and be realistic. Asking ConCourt to extend the deadline was a process on its own. It did not mean that the ConCourt would sit the following week, or next month to consider the Committee’s submission for an extension. The Committee had to prepare a submission, then submit its request. If it took months to process, that was going to be really counterproductive. He was saying that because of the 18 months needed to prepare for the elections. It was not automatic that the court would agree with the Committee. Last year there was an approach to the ConCourt in the wake of the COVID-19 pandemic, which was ravaging the whole country, and which was taking the lives of people. In the interests of South Africa’s democracy and protecting its Constitution, the ConCourt refused to postpone local government elections. It observed that the Constitution stated 'five years' and at the most within 90 days of that, the elections must have been held. The ConCourt did not grant permission to postpone the elections. What would the Committee say to the ConCourt when it asked for a postponement — that the NA had delayed the process, that the NA had taken two years, and it was only giving the Committee one month? Those were matters that needed to be resolved, in his view, between the NCOP and the NA about processes. Especially where there was a directive from the ConCourt, it was a matter between the two Houses that needed to be dealt with accordingly; it was not a matter for the ConCourt. He did not see how the ConCourt, in its wisdom, would agree to that. The systems that were put in place had taken all the factors into consideration. He felt that all agreed with public participation, specifically bringing people closer to Parliament, and ensuring that people did contribute to the running of the affairs of their country. It was actually at the heart of what the ANC represented, to ensure that the people must participate. The Committee was sitting with a practical problem. That practical problem needed to be addressed between the two Houses. The fact of the matter was that the dictates of the law spelt out that the Committee must finalise the process by 10 December. Under the circumstances, the Committee needed to ensure that it achieved that particular objective. It was not rushing anybody. The Committee wished that it could have had more time, even a year or two years, to consider all the factors.
The Committee must congratulate the Chairperson for steering the Bill process. A day or two after the Bill was sent to the NCOP, the Chairperson issued a notice to invite people to make written submissions. People had done so in a very diverse way, but they had contributed to the Bill that the Committee now had. Those matters were on the table and the Committee had to discuss them. The Committee had to see how it would incorporate all those suggestions that were made by the people of this country. With public participation, there was “nothing wrong whatsoever” with what the Committee had done. It was just that Members were concerned about the fact that they wished that they had more time to incorporate everything and listen to everybody. Everybody needed to make a contribution, so that as the representatives of the people, Parliament could incorporate those particular ideas into what it would do.
Mr Dodovu thought that as important as this point about the time frame was, it was not going to help the Committee given the considerations and the factors that he had alluded to. That point would also not help the Committee to open a space for public participation in respect of oral submissions. What the Committee had as written submissions was good, and it had received the necessary legal advice, including from the relevant institutions that were dealing with this particular matter. The Committee needed to proceed along those particular lines, so that it could complete the task at hand. He wanted to sincerely implore those who wanted to “frustrate” the process, and “drag it perpetually in a bottomless way” to desist from doing so, and allow the Committee to move the process forward within the remaining time period. But coming out of this process, he recommended that there needed to be a discussion between the two Houses of Parliament, the NA and NCOP, so that the Houses ironed out that problem.
Mr K Motsamai (EFF, Gauteng) said that the EFF supported the Bill. Mr Dodovu had covered what he wanted to say.
Ms M Dlamini (EFF, Mpumalanga) felt that it was important to “rubber stamp” the position of the EFF on the Electoral Amendment Bill, as tabled. The EFF confirmed that the process was followed in the amendment of the Bill. It was transparent, fair and straightforward. All the people of South Africa, including civil society organisations, were given adequate opportunity and space to make inputs and comments on the Bill. After consultation, the Bill was what the Portfolio Committee had produced, being tabled in Parliament consistent with the Constitutional Court ruling. The amendments provided an equal platform for all those who sought to contest elections to do so in a transparent and open platform. It was a choice of those who sought to contest elections as to whether they intended to do so within an organisation or as individuals. No one was forced to join a political party, and no one was forced to be a so-called independent candidate. The Bill as proposed was therefore correct and legitimate in stating that the minimum requirements of entry for political parties must be the same as those of so-called independent candidates. The Bill was further correct that if independent candidates received votes that exceeded the minimum number of votes for election into Parliament [audio cut out 1:09:19].
Mr Michalakis wanted to make a point of order.
Mr E Mthethwa (ANC, KZN) pointed out that Ms Dlamini was not finished speaking.
Mr Michalakis made a point of order that what the previous Member said sounded like they were substantive issues and went into why the Bill was supported, and which sections were good, and which were not. The Committee was dealing with procedural issues, specifically on public participation.
Ms Dlamini pointed out that she had been interrupted as she was trying to finish her point earlier.
The Chairperson reminded Members that the Committee was dealing with public participation. It was not yet dealing with the substantive issues of the Bill.
Ms Dlamini reiterated that the public had been given an opportunity to participate in commenting on the Bill. She suggested moving on from that matter, as there were “other matters of national importance” that the Committee needed to attend to. That process had been exhausted.
Mr Sileku wanted to respond to what Mr Dodovu said [isiXhosa 1:14:27-1:15:11].
The Chairperson said that it was “not good” that Mr Sileku addressed other Members, and that he was persisting in doing that. He was out of order, and the Chairperson heard other Members on the platform saying that Mr Sileku was out of order.
Mr Mthethwa felt that all were agreed on the point of public participation. He wanted to second Mr Dodovu’s point that both Houses have a joint meeting, to conclude the Bill as a matter of urgency.
Mr Dangor said that it was not for the NCOP to criticise what the other House was doing; the NCOP was part of one Parliament with two houses. The Committee was faced with the prospect of dealing with this Bill. By and large, it had dealt with the Bill, and so had the NA. Both Houses had complied with the court order from the ConCourt. If there was a process beyond that – such as people wanted to talk about constitutional reform, Electoral Act reform, and reform of the electoral process – then that was another process that needed to be initiated at another time. At this point in time, the Committee had a court order, and it had a date. If the Committee did not conclude by that date, it could put the country in a conundrum. It was irresponsible for the Committee to do so.
The Chairperson said that the Bill had a context. That context included how it was tagged in terms of constitutional provisions, and the circumstances the Committee found itself in. It was not the first contentious Bill that the Committee had dealt with, and that also had a ConCourt deadline. With the public participation issue, that itself also had a context. The Committee received written comments. It had considered the written comments, and it had reached a point where it felt it could move forward with the Bill. If the Committee had more time, it would perhaps consider doing things in other ways as well. Given the timeline, Members needed to consider the circumstances, and the fact that the Bill was a section 75 Bill. Members also needed to consider the fact that the Committee had done adequate public participation on the Bill. The general sentiment was that the Committee should continue with the process.
Mr Michalakis wanted it to be recorded in the minutes that the DA Members did not agree that adequate public participation was done. The DA Members opposed the current decision of moving forward based on the opinion that the public participation process had been followed; they were against that opinion. The DA was of the opinion that more public participation should have happened.
Mr Dangor wanted to qualify what Mr Michalakis said, specifically that public participation from the DA constituencies was not sufficient.
The Chairperson said that Mr Dangor was out of order.
Another Member interjected to say that what Mr Dangor said was true, and the Chairperson called for order in the meeting.
Constitutional and Legal Services Office (CLSO) proposal
Ms Daksha Kassan, CLSO Legal Advisor, said that there was no longer a proposal on the table. The CLSO had discussed that proposal after it had heard the Department and IEC presentations. It had reconsidered what it wanted to propose, as it realised that the proposal was no longer feasible.
A completed prescribed form confirming that the independent candidate has submitted, in the prescribed manner, the names, identity numbers and signatures of voters whose names appear on the segment of the voters’ roll for that region or province in which the independent candidate is standing for election and who support his or her candidature, totalling at least 20 percent of the quota for a seat that was required for a seat in the previous comparable election;
The Chairperson recalled that in previous engagements, one of the issues was signatures, especially equalising the 20% signature requirement between independent candidates and political parties. There was also the point that independent candidates, like represented parties, if elected should be exempted from the requirement in a subsequent election. The Chairperson asked the Department and the IEC to speak to that if they had anything to add.
Mr Mosotho Moepya, IEC Commissioner, said that he was accompanied by Commissioners and the IEC executive team, which was led by Mr Masego Sheburi, Deputy Chief Electoral Officer.
Mr Moepya said that the IEC had made a small adjustment to the IEC response to submissions presented on 14 November. The adjustment related to the annexures. The IEC had submitted seven annexures, but in error, it referenced eight in its notes. That was the part it had corrected, but the rest remained the same. He asked the Chairperson if there was a specific issue that she wanted the IEC to address.
The Chairperson said that the Committee was isolating issues that came out of the previous discussion. The Committee was currently discussing signatures. It was a matter that had been discussed in all of the Committee’s meetings. There were two issues on the table – one was the 20% signature requirement for independent candidates or political parties to register for elections. The second issue was on how those political parties who had gained representation in a preceding election would be exempt from that requirement going forward.
Mr Moepya said that the IEC had made its input on signatures, and it was satisfied with that.
Mr Sibongakonke Ngwenya, DHA Legal Services, replied that DHA did not have any inputs on signatures.
Mr Dodovu said that in the Bill as passed by the NA, it required 20% for independent candidates, and 1 000 signatures of registered voters for political parties. The amendment the Committee proposed was that that must be applicable to both the independent candidates and parties not already represented in either the provincial legislature or the NA. Those who wished to register needed to acquire 20% of the current NA quota (currently 40 000 votes per seat), thus 20% of 40 000 was 8 000 signatures to register for the elections. In that sense, there was equality and balance. There was equal representation between political parties not currently represented in Parliament and independent candidates. Those independent candidates who acquired a seat in the election would not need signatures to contest in subsequent elections.
Mr Dangor made a remark on broader electoral reform post-2024.
The Chairperson said that the Committee was dealing with signatures.
Ms Barlett supported Mr Dodovu’s proposal.
Vacancies and independent candidates contesting more than one region
The Chairperson said that there was an input from the IEC, to address a comment related to an error in the method to award a seat left vacant by an independent candidate who had been elected to more than one legislature. There was a proposed amendment to Schedule 1A from the IEC to address that matter.
Mr Masego Sheburi, IEC Deputy Chief Electoral Officer, explained that the IEC was proposing a redraft of items 7 and 12 of Schedule 1A. The motivation was as follows: Item 7 dealt with the forfeiture of NA seats. That was mirrored in item 12, which dealt with the forfeiture of seats in the provincial legislature. The forfeiture of seats was possible in two scenarios. The first scenario was one where a party had received more seats than the names of candidates it had submitted. In that instance, that party stood to forfeit those seats. The second scenario dealt with independent candidates, where an independent candidate stood to be elected to more than one seat, or to more than one legislative assembly. The process of recalculating and then reallocating that seat was dealt with in item 7(3) of Schedule 1A. The IEC proposed to amend item 7(3) in the following way: The IEC had submitted a text with strike-through content in the 14 November presentation. If it did that, it achieved the following: The IEC would achieve equal and fair treatment for all candidates, whether they were independent or appeared on party lists.
In its current formulation, what that provision achieved was that when one recalculated seats by excluding independent candidates, one safeguarded an independent candidate who had won a seat “cheaply” in the provincial or national legislature. The current drafting did not accord the same protection to a candidate on a party list. The rephrasing would bring parity in how Schedule 1A dealt with independent candidates. The IEC felt that the Bill would be “infinitely improved” by that technical adjustment. When the IEC first drafted the Bill, it had disregarded votes cast for independent candidates in the recalculation of forfeiture. It had wanted to avoid a situation where it ended up with “unending seat recalculations”. The IEC had realised that achieved unintended consequences. The matter was raised again as part of the public consultation process. That weakness was raised in the public participation submissions, and that was why the IEC was proposing a redraft. It submitted that the technical adjustment brought parity in how candidates were impacted, and it removed unfairness wherein independent candidates may unintentionally get a seat “cheaply”, while that would not be the case for candidates on a party list. The IEC illustrated that in its presentation on 9 November 2022, to indicate by way of electoral outcomes how if the provision remained unchanged, it would have “upset results”, which was not intended by Schedule 1A. If the Committee agreed with the IEC, there would be consequential drafting to items 23 and 24, which were deletions in the main to remove cross-referencing to items 7 and 12. If that was carried through, the IEC would change the scheme in Schedule 1A to indicate that in the event of an independent candidate being elected to occupy a seat in the NA and a seat in the provincial legislature, if they then chose one seat over the other, the net effect was that that recalculation and reallocation of that seat was no longer done in terms of a forfeiture formulation, but was dealt with in terms of a vacancy. For that purpose, the IEC proposed a new clause 24(3) that would give effect to the recalculation to allocate that seat. Those were technical effects that gave effect to the logic contained in Schedule 1A. If it were left unchanged, it would have “upset consequences”, in that it would treat an impact on candidates in a differentiated way, and in a very unfair way that “could not be justified”. The IEC had shared the draft with Parliament's Legal Services.
Mr Moepya believed that the IEC submission strengthened the Bill. Without that amendment, the Bill may inadvertently be weakened.
Mr Dodovu asked about a situation where an independent candidate was elected to both legislatures. It would mean a choice by the independent candidate whether to go to the NA or the provincial legislature?
Mr Moepya replied that the clause dealt with such a situation. The clause looked at where the candidate had mastered what was proportionally more votes in the seat they had won. In the event that they had been elected to more than one seat, the seat where they had proportionally more votes would be the one that they took.
Mr Sheburi said that there was nuance. Mr Moepya was correct, as his response related to a situation where an independent candidate who had won two seats in two different regions for the NA. Mr Dodovu’s question related to an independent candidate who stood to gain two seats in different legislative assemblies, i.e. one in the NA, and the other in a provincial legislature. In that instance, the same process applies to the party candidate. The independent candidate would be given two days to indicate which seat they elect to go to. Depending on if the independent candidate chose a seat in the NA or provincial legislature, the IEC would then do a recalculation as though it was filling a vacancy. That was the only distinction that the rephrasing introduced.
Mr Dodovu said if one appeared on two regional lists, and one acquired a seat on two regional lists, that proportion in terms of the percentage would apply. One would be compelled to take the seat with the higher proportion of votes. That was his understanding. He was asking in relation to the NA and the provincial legislature, and not on two regional lists. He now understood that the choice would be up to the independent candidate, who was given a specific timeframe in which to choose whether to go to the provincial legislature or the NA.
Ms Visser asked that if independent candidates were allowed to stand in more than one region, for instance in two different provinces, then every time there would be a recalculation necessary on the national proportional representation (PR) for the quotas. How would that affect Parliament? MPs were not allowed to do that. MPs could not stand in two provinces or two legislatures simultaneously.
Mr Sheburi replied that Ms Visser’s question dealt with the following scenario: What guarantees were there that when one did a seat recalculation to fill a vacancy, or to reallocate a seat that had been forfeited, one would not be removing a seat from a party that had already been allocated a seat. There were safeguards: When the IEC did a seat recalculation to fill a vacancy left by an independent, it had already preserved the seats that had been finally allocated. There would not be a situation where two and a half years into a term of Parliament, for example, an independent lost membership of the NA, and when the IEC did a recalculation, it took a seat from a party that had already been allocated a seat as a result of the election. Once seats were allocated after an election and the results were made known, a recalculation that happened beyond that point would not have an adverse effect on removing seats, and by implication, rights that had already vested in parties and independent candidates who had been designated as elected into legislative assemblies.
Ms Visser asked if independent candidates were allowed to stand in more than one region.
The Chairperson replied that the current Bill allowed for that.
Mr Sheburi said that in the Bill as it stood, an independent candidate may contest for a seat in the NA in multiple regions. In terms of the Constitution, a person who was entitled to vote for the NA, was entitled to be a member of the NA. To lock an independent candidate into one region would be limiting their political rights to participate. The effect of an independent being able to contest multiple regions did not mean or imply that the independent candidate may aggregate seats across the regions in order to have a seat in the NA. The independent candidate would still win a seat in the NA based on the relative quota in each region which they were contesting. The second qualification was that where an independent candidate won more than one seat in multiple regions, that independent candidate would be defaulted to a seat that they had won with the most number of votes. In that scenario, the independent candidate could only choose a seat if they won two seats in two different legislative assemblies (i.e. the NA and the provincial legislature).
Mr N Hadebe (IFP, KZN) thought that the Committee was not discussing substantive matters of the Bill. Initially, the Chairperson said that the Committee was not discussing the substantive matters, but it seemed as if the Committee was “deep into the substantive issues of the Bill”.
The Chairperson confirmed that the Committee was at the point of discussing the substantive matters of the Bill. The Committee was looking at proposals for amendments to the Bill. Initially, the Committee was dealing with procedural matters, but it had exhausted that part of the agenda.
Ms Maleka remarked that with the vacancies in filling seats, the proposal for that amendment was supportive in addressing the error in the method for awarding a seat left vacant by an independent candidate who had been elected to more than one legislative assembly. The proposed amendment would affect Schedule 1A. The IEC was requested to elaborate on the proposed amendment and subsequent consequential amendments to other clauses to correct the error.
Mr Sileku made remarks [IsiXhosa 1:57:40-1:59:41].
The Chairperson noted that the Committee did not have translation available on the meeting platform.
Mr Dodovu proposed to summarise what Mr Sileku said.
The Chairperson replied that it was important that the IEC understood the question.
Mr Sheburi confirmed that the IEC understood Mr Sileku’s question.
Mr Dodovu said that he was “a bit lost” with what Mr Sheburi had explained. Mr Sheburi said that if an independent candidate contested in more than one region, and they got a seat in two or more regions, then that candidate would take up a seat in the region where they obtained the "greatest number of votes". Mr Dodovu’s understanding was that the independent candidate would be placed in the region where they received the highest proportion of votes, and not the greatest number of votes. Could Mr Sheburi please clarify that?
Mr Sheburi replied that the position in the current Bill was that an independent candidate who stood to get more than one seat was defaulted to the region in which they had won by the most votes. However, in one of the previous meetings, DHA senior counsel indicated a preference on the phrasing that the candidate should be defaulted to the region where they received the highest proportion of votes. That matter was now up to the Committee to decide, specifically if it retained the current phrasing in the Bill, or replaced that with the proportion of votes received. The current Bill [B1B-2022] stated that an independent candidate would be defaulted to the region where they received the most votes. The phrase “the most votes” was deliberate, because in both instances, the independent candidate had won representation. It was not a theoretical calculation of proportions such as an independent candidate won a seat in Gauteng, where the quota was 60 000 votes, and won a seat in the Eastern Cape, where the quota was 50 000 votes to win a seat, and got 52 000 votes. In that case, the independent candidate would default to the seat in Gauteng, because the independent candidate had won the seat by a numerically higher number of votes. But there was a new proposal from DHA senior counsel that the IEC use proportion rather than the numeric number of votes.
Mr Sheburi replied to Mr Sileku’s question and said that he wanted to be careful that things “did not get lost in translation”. The example was that a candidate stood in five regions. The candidate won a seat in one region, and the IEC defaulted them to that seat. Mr Sileku’s question was: What happened to the other votes that the candidate received in other regions when the IEC did a recalculation? Those votes would be forfeited; they would be disregarded from the count. The second question was: Who stood to benefit from the way in which the IEC treated those votes? Once the IEC had disregarded those votes, it ran a new recalculation that yielded a new quota. The candidate who met the quota would gain the seat, whether a party candidate or independent candidate was elected into that position, in order to honour the principle of the will of the people, that is, the votes must lead to representation.
Mr Michalakis asked for clarification. He could stand as a party representative or an independent living in the Free State, with a home base in the Free State. As the Bill currently stood, he could also stand in Gauteng as an independent candidate. If he got more votes in Gauteng, he would become the MP from that region, or he would represent Gauteng in the NA, although he had no home base there and was not registered to vote there. He also had no links with Gauteng. Simply by standing in more than one province, he would get elected there, and elected to represent a province to which he had “absolutely no link” at all. Did he understand that correctly?
Mr Sheburi confirmed that what Mr Michalakis said was true. But there was a rationale to the Bill, because the Constitution said that a person who was eligible to vote in an election of the NA was eligible to stand for that House. Limiting the person to one region may be limiting and restricting their constitutional rights in an unfair manner. That was the rationale behind why a person could contest an election in a region in which they were not ordinarily resident.
Mr Michalakis replied that no one is being limited from standing in the NA completely. The limitation was reasonable if independent candidates were limited to their own province, because that same limitation applied to others. To require a person to be registered to vote in the province where they were standing was not an unreasonable limitation, in his opinion. An unreasonable limitation would be to bar independent candidates completely from standing for the NA. That was not the case. It was a reasonable limit to say that if one stood for the NA, then one must do so where one was registered to vote, and where one’s home base was.
The Chairperson observed that the Committee had discussed that issue in its previous engagement. It was “unfortunate” that those issues were not raised previously.
Mr Sheburi said that the IEC did not have anything further to add.
The Chairperson noted that Ms Maleka proposed the Committee support the amendment on vacancies.
Mr Dodovu seconded Ms Maleka’s proposal.
Mr Michalakis asked if the Committee was considering only the proposed amendments, or would the Committee go through the Bill clause-by-clause in its deliberations?
The Chairperson replied that the Committee was considering the proposed amendments as they came out of the Committee’s engagements in its previous meeting. The Committee had already dealt with various aspects of the Bill.
Mr Michalakis thought it would be helpful for the Committee to see the wording of the proposed amendments on the screen.
The Chairperson then proposed that the Committee get the document showing the new amendments. She observed that there was a broader principle around the amendments to do with vacancies, and there were consequential amendments that came out of that.
Mr Dodovu repeated the question by Mr Michalakis – if there would be an occasion to look at the whole Bill after today’s meeting. He also asked if the amendments were properly inserted.
The Chairperson replied that there would be an opportunity to look at the proposed amendments word for word in the Bill. Following this meeting, the Committee would ask Parliamentary Legal Services (CLSO), DHA legal team and the IEC legal team to deal with the amendments.
Ms Visser asked if the Committee could go through the Electoral Amendment Bill line-by-line, and if Members could have it before the meeting so that Members could prepare.
The Chairperson replied that the process of going through the Bill line-by-line would happen, and the Members would get the document before the next meeting.
Independent candidates contesting more than one region
The Chairperson noted that Mr Dodovu had asked questions on this matter, especially the rule that a seat would be allocated to an independent candidate in the event that they received a seat in more than one region. That had to do with the current version of the Bill, which was based on the largest number of votes. The proposal was that the seat should be allocated based on the largest proportion of votes. That matter was also clarified by Mr Sheburi.
Mr Dodovu supported the provision that an independent candidate could contest in more than one region. In a case where an independent candidate received more than one seat (with a seat in a different region), then the seat that the candidate must occupy would be in the region with the highest proportion of votes the candidate received. It should not be on the basis that it is the greatest number of votes. He wanted Members to agree on that.
Ms Bartlett supported Mr Dodovu’s proposal.
Ms Visser stated that the DA wanted to see what the amendments were clause-by-clause, before it could vote on that matter of independent candidates contesting in more than one region. The DA respectfully requested that it have a clause-by-clause meeting.
Broader electoral reform
The Chairperson observed that there had been various discussions on this matter.
Mr Dangor remarked on broader electoral reform post-2024 elections. The ANC believed that the views expressed by society on the need to review the electoral system was an important debate. There should be an opportunity for South Africans to further discuss that matter, and thus develop consensus on the kind of electoral system that would be suitable for the South Africa situation. The ANC’s view was that whatever electoral system was decided upon, it should be premised on the principle that the people shall govern, and that such an electoral system should be informed by the letter and the spirit of the Constitution. The electoral system for South Africa should be fair, inclusive, transparent, and ensure accountability. It should be inclusive of all stakeholders, and be as representative of South African society as possible.
The Chairperson observed that Mr Dangor was making a proposal that there be a provision in the Bill on electoral reform, and he confirmed that.
Ms Bartlett and Mr Dodovu supported Mr Dangor's proposal.
The Chairperson observed that the Committee had exhausted the matters coming out of its previous meeting.
The Chairperson proposed that with the agreement around the matters discussed, the Committee could get CLSO, DHA and the IEC to deal with the proposals, and provide the Committee with the proposed amendments to further deliberate on.
Adv Siviwe Njikela, Senior Parliamentary Legal Advisor, CLSO, said that he and his CLSO colleagues had been trying hard to follow the proceedings and he had not been able to speak to the State Law Advisor. Thus he proposed that the Committee staff send a list of resolutions that had been taken. CLSO had been making notes but sometimes it was a bit confusing as to what the Committee decisions were. He requested that the staff send the list of resolutions by that afternoon, so the legal team could incorporate those into the draft before the next Committee meeting.
The Chairperson replied that was fair. The Committee staff would send the proposals to the CLSO. The Committee would reconvene the following Monday to look at the proposed amendments.
The meeting was adjourned.
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