The Select Committee met to deliberate on the Electoral Amendment Bill.
It considered a new amendment to the Bill, namely that a panel be established to investigate, consult and make recommendations in respect of potential electoral reforms. It came in the wake of civil society groups pushing for broader electoral reform. According to the proposal, a panel of nine election and constitutional law experts will have to be appointed within four months of the Electoral Amendment Bill becoming law. While there would not be enough time for the panel to make recommendations that could lead to changes in the country’s electoral system before the 2024 elections, the research should already have started. However, any reforms proposed will only be considered by a new Parliament after the 2024 elections, once the new provisions for the participation of independent candidates have been tested. Senior Counsel – representing the Department - advised Members that the inclusion of a statutory reform committee would “send a strong message to the public” that Parliament was committed to considering further reforms. The proposed clause stipulated that the panel would be afforded 12 months to consult and investigate reform proposals before taking recommendations to Parliament. The Minister stressed that the work of the panel would be very new as neither the Van Zyl Slabbert report nor the Motlanthe high-level report which recommended a constituency-based electoral system, made provision for independent candidates. Upon receipt of the report of the panel, the Minister must immediately table the report in Parliament for its consideration and make the report available to the public.
The IEC explained that the proposed amendments to clause 6 seek to strengthen the Bill as far as it dealt with what was considered to be unequal treatment between Independent candidates and parties who had not proven their “popularity” through being elected to provincial legislatures or the National Assembly. In a case where an Independent Candidate wanted to contest in more than one region for a seat in the National Assembly, the IEC no longer advised that the IC meet a quota in each of the regions. Rather, if the IC contests multiple regions, the IEC would accept the highest aggregate regional quota as a condition for participation. If an independent submitted their candidature to contest a regional seat in the Northern Cape, Mpumalanga, and Gauteng, then instead of requiring that they must meet 20% of the quota in all those three regions, the IEC was proposing that the IC meets the highest quota, which is a seat in Gauteng at 18 000 votes. If the IC met that, they could contest in all of the other three regions as well.
The Minister agreed with a comment that the provisions related to signature quotas must be explicit so that they could be understood by anyone who read it.
The Chairperson recapped what happened in the previous meeting. The Select Committee (SC) agreed on certain proposed amendments to four aspects of the Electoral Amendment Bill [B1B-2022]. The amendments related to signatures, vacancies of seats, independent candidates (ICs) contesting in more than one region, and the need for broader electoral reform. Following deliberations on the Bill, the Committee asked the legal team, consisting of the Electoral Commission (IEC), the Department of Home Affairs (DHA), the Office of the Chief State Law Advisor (OCSLA), and the Parliamentary Legal Services (PLS) to look into drafting the proposed amendments. The Committee also asked the legal teams to present the proposed amendments in that day’s meeting.
The Committee had received the proposed amendments that morning, including that related to broader electoral reform. The Chairperson was informed that the Senior Counsel for the DHA would need to leave the meeting earlier. She proposed that the Committee receive the presentation on the amendments related to broader electoral reform. Thereafter, the State Law Advisor could take the Committee through the proposed amendments. The IEC, PLS, and the Department could also make inputs as well.
Mr G Michalakis (DA, Free State) asked about the procedure. The Department sent some of the proposals through to the Members late the previous night. He wanted to confirm if today’s meeting would be a briefing on the proposals because Members would also need some time to consider what was before them.
The Chairperson confirmed that it would be a briefing, and if Members wished to engage on the content, they would be welcome to do that.
Electoral Reform - Proposed Insertion (Department of Home Affairs)
Insertion of section 114A in Act 73 of 1998
Adv Steve Budlender, Senior Counsel (SC), presented on behalf of the Department of Home Affairs (DHA). He explained that the section sought to achieve what the Minister of Home Affairs explained in the first briefing that he gave to the Committee.
There were two separate questions that needed to be considered in his submission. The first was the question of ICs, which arose from the New Nation judgement – that was the need to include ICs in the elections, and to allow for them to run in elections. That would be achieved by the existing Bill before the Committee, subject to the additional IEC amendment, which was an excellent proposal in his view. The second question was: did the South African electoral system need broader electoral reform? That was not required by the New Nation judgement of the Constitutional Court (ConCourt). For the purpose of 2024, the focus was on making sure that ICs could run, and thereafter, there could be a consideration of broader electoral reform. It was important for the court, political parties, and the public to make clear that reform was the intention of Parliament. It was not so much what Parliament’s decision was going to be (that would be a decision in due course), but to make clear that Parliament was seriously considering the question of long-term electoral reform. The provision presented would make that clear. It enabled Parliament to say to civil society organisations, the public, and political parties that it knew how many were clamouring for broader electoral reform. Parliament would also be saying that it thought that that was an important and legitimate debate that should happen. But it could not be done prior to the 2024 election, because there was no time to do it. But Parliament was committed to reform.
The insertion began with the following: “114A Electoral Reform Consultation Panel”, and covered the objects of the Panel, what matters the Panel should investigate, consider and report on, and what it needed to do before and after the 2024 elections (among other matters).
Subsection 5 noted that: “Upon receipt of the report of the Panel, the Minister must forthwith table the report in Parliament for its consideration and make the report available to the public.” Adv Budlender added that that demonstrated to the public that it was a serious, public-driven process, and the public would immediately have access to the report.
After presenting the provision, Adv Budlender added that it sent a signal that Parliament was serious about considering broader electoral reform, but that there needed to be a detailed and independent investigation into that. That investigation would take place by means of the Panel. Secondly, the provision would ensure that the next Parliament, within a year of its being elected, would have before it a comprehensive report from an independent, well-qualified panel, so Parliament could decide whether to engage in further electoral reform or not and to do so in a way that allowed time for that to be implemented prior to the 2029 elections.
In his view, that was a very welcome and important development that made clear the appropriateness of the Bill and would assist the Bill in passing constitutional scrutiny. He respectfully submitted that the National Council of Provinces (NCOP) should give serious consideration to adopting that amendment.
The Chairperson pointed out that PLS may not have had the necessary time to internalise what was presented.
Mr Michalakis made a “political comment” (which was not directed at the Senior Counsel) and said that he did not buy the argument that Parliament, the Department, or the Government showed that they were serious about public participation by including that specific clause. If that was a serious point of concern, then the DA’s argument from the previous week that the public participation process this time around was flawed would have been taken. Having looked through the proposals, he did not find anything that stipulated the composition of such a panel – should that not be included in the proposal? That could include how many people, what kind of people, what expertise and so on one wished to have on that panel. Was such a panel not the purpose of the first point of the Van Zyl Slabbert report and panel? Had that process not already been concluded many years ago? The process would just have to be considered and given a serious thought.
Mr T Dodovu (ANC, North West) felt that the proposal was quite innovative. But at the same time, he felt that Members must applaud the work that the Committee was doing in respect of the interventions that it was making. When the Bill came to the Committee, it was not the case that the NCOP would just “rubber stamp” the work of the National Assembly (NA). The Committee had made serious interventions to an extent that the Bill will have to go back to the NA. He wanted to reinforce that particular point because that was quite important: The submission made by Adv Budlender was very important, and he felt that the Committee needed to support it, especially when it clearly spelt out what needed to happen. The point on how the nine members of the panel must be acquainted with all the expertise and qualifications was important to him. What was also encapsulated in the proposal was the fact that going forward, the panel that was going to be appointed by the Minister was “going to do a thorough job”. It was going to research and do comparative studies. It would also be willing to do some desktop analysis of the current situation, but importantly, not only engage political parties and affected parties but also ensure that there was a laborious process of community and public consultation. For him, those were the underpinnings that were in the proposal, and the Committee needed to support that. He proposed that once the Committee was finished with the Bill, it needed to get into the next stage. He wanted to emphasise the fact that the Committee had dealt with this particular Bill quite extensively, to an extent that it had made the proposed interventions, which needed to be taken forward.
Mr M Dangor (ANC, Gauteng) felt that the proposed amendment was an important intervention. It was an important intervention to show the country and the population at large that Parliament was serious about electoral reform. What the nature and the content of the electoral reform may or may not be would be determined by the recommendations made by the panel appointed by the Minister. Those recommendations would come back to Parliament. Parliament would then consider its own positions on the matter, and the matter of bringing together unity and harmony within the South African system. Such harmony was envisaged in 1994 by President Mandela, President de Klerk, and those who designed that system.
Adv Budlender responded to Mr Michalakis’s question asking if the Bill should make provision for how the panel was to be comprised. He pointed out that subsection 7 made it clear that that had been dealt with. Subsection 7 said that in order to establish and constitute the panel, the Minister must call for nominations from the public and interested parties. It was a public nomination process. Then it said that the persons to be appointed must be duly qualified and independent, with expertise in the administration and running of elections or constitutional law or electoral systems. Those were the three criteria: Either the expertise in administering and running elections, or constitutional law, or electoral systems. It provided that the Minister must make the appointment in consultation with the Electoral Commission. That language of “in consultation” required the concurrence of the Electoral Commission. It made clear that the Electoral Commission had to agree that there were nine members who had to be appointed and that one of the panel members had to be the chairperson.
On the question about the Van Zyl Slabbert report: Adv Budlender said that it was not for him to speak about whether the Van Zyl Slabbert report should or should not have been adopted. What was clear was that years had passed since the Van Zyl Slabbert report. Now there had been a substantial change, which was that for the first time, ICs were being allowed in. That seemed a very opportune moment to have an independent body like the panel express a view on whether electoral form was necessary or not. He had no doubt that the panel would have regard to the work done by the Van Zyl Slabbert committee. But of course, the panel would not be considering it in the current context.
Dr Aaron Motsoaledi, Minister of Home Affairs, responded to Members. Mr Michalakis said that he was not convinced that Parliament was determined to make sure that there were electoral reforms. The Department had repeated that issue many times. If Mr Michalakis “did not want to be convinced”, then there was nothing the Department could do. The Department told him that in answering that question from the ConCourt, it was only dealing with the issue of ICs for the simple reason that there was “absolutely no time” to deal with broader electoral reform. The Department made it clear that it was not that it did not want electoral reform; there was no chance of that happening within the period that was given.
The second question was whether the work on electoral reform was already done by the Van Zyl Slabbert report. The answer was no, it was not done, specifically the type of work that the Department was looking for. The Van Zyl Slabbert report was looking at the constituency system within the current system of political parties. If one read that report, it was a 72-page document. In those 72 pages, the word “independent” did not even appear once. It was not even considered. Nobody ever thought South Africa could have elections in the National Assembly, in provincial legislatures, where independents were taking part. There was a high-level panel report headed by former President Kgalema Motlanthe in 2017. The panel did the same thing that Van Zyl Slabbert did, and it also never mentioned the word “independent” even once. The two reports were saying that people must be chosen through constituencies, but the people who were going to fight for those constituencies were political parties. In conclusion: Even if the Van Zyl Slabbert report or the Kgalema Motlanthe report were implemented, the case by the New Nation Movement would still have happened in court, because there still would have been a Parliament where people were coming through constituencies, but it was political parties who were vying for seats. The Bill was completely different. Even when one read the document from Senior Counsel that the people to be consulted would be Parliament, alongside independents and political parties both giving their views. It would be a combination of political parties and independents who would be talking about what was the most appropriate electoral system. That type of work had not been done.
The Chairperson commented on the discussions with regard to the Van Zyl Slabbert report. The report was mentioned at the beginning of the Committee’s engagement with the Department on the Bill. She recalled that the Committee had dealt with the matter of public participation in a previous meeting.
Draft proposals as submitted to the SC for consideration
Ms Suraya Williams, Principal State Law Advisor, Office of the Chief State Law Advisor (OCSLA), presented. She was accompanied by Ms Sarah Govender, Senior State Law Advisor, OCSLA, and Ms Ayesha Johar, State Law Advisor, OCSLA. As per the instructions from a previous meeting, the OCSLA considered proposals from the Committee and drafted amendments together with PLS, the IEC, and the Department.
Ms Williams presented amendments to clause 3 (where the proposed paragraph (cB) would be inserted after paragraph (cA). With clause 6, the OCSLA met with the IEC, which had made some proposals. Those proposals had not been presented to the Committee before. The OCSLA requested the IEC to present its proposals, and the IEC had prepared a presentation on that matter. At the previous meeting, the Committee discussed the proviso that would come after paragraph (a), but the IEC proposed some changes to paragraph (a).
Mr Mosotho Moepya, Commissioner, Electoral Commission (IEC), presented the proposed amendments to clause 6. He was joined by Ms Janet Love, Commissioner, IEC, Mr Sy Mamabolo, Chief Electoral Officer, (CEO), IEC, and Mr Masego Sheburi, Deputy Chief Electoral Officer (CEO): Electoral Operations, IEC.
Mr Moepya observed that the proposal sought to strengthen the Bill as far as it dealt with what was considered to be unequal treatment between ICs and parties who had not proven their “popularity” through being elected to provincial legislatures or the National Assembly (NA).
Mr Sheburi presented the clause. He observed that the overriding consideration in presenting the proposal was to obtain clarity and equity in the manner that the Bill treated contestants, whether they were independent or party candidates. Secondly, from public participation processes, significant submissions were that there were onerous requirements placed on the nomination of independent candidates when there were no such requirements for candidates who appeared on party lists. The phrasing was intended to obtain parity in the manner that the Bill treated parties as well as independent candidates. He then read out clause 6 for the record.
Mr Sheburi added that in a case where an IC wanted to contest in more than one region for a seat in the National Assembly, the IEC no longer advised that it should require that the IC meet a quota in each of the regions. Rather, if the IC contests multiple regions, the IEC would accept the highest aggregate regional quota as a condition for participation. If an independent submitted their candidature to contest a regional seat in the Northern Cape, Mpumalanga, and Gauteng, then instead of requiring that they must meet 20% of the quota in all those three regions, the IEC was proposing that the IC meets the highest quota, which is a seat in Gauteng at 18 000 votes. If the IC met that, they could contest in all of the other three regions as well. On why the IEC proposed taking an aggregate of the highest quota and not a quota in each region: ICs would be contesting for a seat in the NA, and for contesting in the NA, everyone who was entitled to vote for an NA was entitled to stand for that election. That was why the IEC was not locking the demonstration of support into a specific quota. But that was only true as it related to the NA elections.
Sub-paragraph 2 dealt with an instance where an independent contested a seat in the provincial legislature. In that instance, the IEC required the candidate to meet a quota of 20% of a previous election in that region. An IC could not use regional support from another province to demonstrate support. E.g. If a candidate was contesting a provincial legislature seat in the legislature of Gauteng, that candidate must meet the quota of a seat in the legislature in the previous election for the province of Gauteng. A candidate could not use or demonstrate support by voters from outside of that province. The provincial elections were nine unique elections, with multi-member constituencies, which were the nine provinces. Mr Sheburi then read sub-paragraph 2 into the record.
The IEC thought that the phrasing in clause 6 and the phrasing in clause 3 brought parity in how the Bill impacted on independents. The biggest change was that for election in the NA, a candidate would only demonstrate support by submitting signatures in respect of the highest quota for the regions that he or she wishes to contest. However, for an election to the provincial legislature, independents could only contest in the legislature in a province in which they are registered. To demonstrate support the 20% of voters must be in respect of the voters roll for that specific province. The clause applied to both independents and candidates who are on a party list.
Ms Govender presented. She read the clause into the record.
The new clause would be on the electoral reform advisory committee, which had already been presented by the Senior Counsel.
Ms Daksha Kassan, Parliamentary Legal Advisor, Constitutional and Legal Services Office (CLSO), said that the CLSO had only looked at the Department’s proposals that morning. If there was anything it wished to add, it would do so after the meeting, in consultation with the OCSLA and the IEC.
Ms A Maleka (ANC, Mpumalanga) commented on clause 21. Clause 21 made provision for the technical insertion relating to the calculation for a seat. That was in line with the Droop method that would be used to calculate a seat, and the subsequent calculation for further seat allocation, excluding the votes and seats already calculated. The determination of a quota through the calculation is very important in the allocation of seats, and that was consistent with the proportional representation approach of South Africa’s electoral system.
Mr Michalakis asked about the wording of clause 6. The wording seems to be 20% of the highest of the regional quotas although he understood the intention to be that it was 20% of the highest of the regional quotas of those regions where that independent was standing. As it currently read, he felt that it was open to a bit of confusion or even the interpretation that it meant the highest of all the regions in the country. He felt that if the intention was to make it 20% of the highest of the region or quotas where that independent was standing specifically, then it should be made a bit more explicit, just to provide clarity with regard to what the intention was. He felt that if the intention was only the regions where the independent was standing, then it would perhaps be better if the wording made that more explicit.
Ms N Ndongeni (ANC, Eastern Cape) observed the proposed insertion in clause 6 was intended to give effect to the need for the equalisation of the requirements for signatures for the purpose of registering a new political party, and the registration of the independent candidate. The ANC believed that the equalisation of the required signatures of 20% of the threshold required for a seat was fair, as both the independent candidate and the political party were required to do that for the signatures. That matter had been raised in the written submissions, and the ANC also supported the view that independent candidates who secured a seat in the election should be exempted from that requirement in the coming election, given that the candidate had already shown that he or she had the support of the electorate.
Ms M Bartlett (ANC, Northern Cape) asked about the clause introducing the panel. As the Chairperson correctly maintained, the amendment of the Electoral Act was the result of the ConCourt judgement, which directed that the Committee should introduce provisions in the Act to allow the participation of independent candidates in elections and that there was a view in society on the need to engage on the reform of South Africa’s electoral system. Secondly, it was important that Parliament created a panel that would give society the opportunity to further engage on the kind of electoral system suitable for South Africa. That panel would be informed by the ConCourt judgement. The reality was that given the time period to affect the court judgement, Parliament may not be in a position to deal with the reform of the electoral system as expressed by society. Lastly, the panel would have enough time to assess the electoral reform beyond the 2024 election, and it would also be provided an opportunity for independent candidates that would be elected in the 2024 election to also participate in the electoral reform of South Africa. The ANC believed that it was reasonable and necessary to create provision for the establishment of such a panel in the Bill.
The Chairperson summarised the issues raised in the comments. Mr Michalakis raised the issue of the 20% of the highest regional quota. In responding to that question, she proposed that the Committee get responses in the following order: The IEC, the Department, the State Law Advisors, and PLS.
The Chairperson proposed that Mr Sheburi take the Committee slowly through the issue of the regional quota.
Mr Sheburi said that Mr Michalakis was correct. Mr Sheburi dealt with what clause 6 said about ICs. The provision was qualified in its last sentence of sub-item 1 by the statement that indicated that it was linked to a region in which the IC intended to contest. The last sentence before (ii) said, “which the independent candidate intends to contest”. The 20% quota was the highest of the regional quota in a region in which the IC intends to contest. E.g. if the IC wished to contest all nine regions, the highest quota was currently in Gauteng. Such a candidate would have to meet the quota in Gauteng. If an IC wished to contest the Northern Cape, the Eastern Cape, and the Western Cape, then they would have to demonstrate support equivalent to the quota in the Western Cape, because the Western Cape had the highest quota in that scenario. The requirement was not for all nine regions. It needed to be linked to the region in which the IC intended to contest.
The Chairperson asked for clarity. If Mr Sheburi was saying that the signature requirement related to the highest regional quota where the IC intended to contest, and Mr Sheburi used the example of all nine regions, then by implication, Gauteng being the highest, the IC must reach that quota in Gauteng (i.e. 20%).
Mr Sheburi replied that the Chairperson was correct. If an IC wished to contest for a seat in the NA by standing in more than one region, then instead of meeting the quota in each region, the IEC was proposing that ICs demonstrated support as it related to the highest quota of the combination of regions they wished to contest. But if an IC stood in only one region, they must meet the quota for that region. If an IC stood in Gauteng, then they must submit 18 000 signatures, which is the quota in Gauteng necessary to demonstrate support. If an IC stood only in the Northern Cape, they needed to meet a quota of about 8 000 signatures. If an IC chose a combination of regions, instead of being required to meet a quota in each region, the IEC was asking that the IC meet only the highest quota within the combination of the regions they wished to contest. The reasoning behind that was because an IC would be contesting for a seat in the NA, and not specifically in the regions. ICs just needed to demonstrate that they had enough support to be able to garner a seat in the NA.
In a provincial legislature, an IC needed to meet the quota in that specific province. There was no similar provision of the highest quota in the regions an IC was contesting.
The Minister observed that Mr Michalakis said those provisions related to signature quotas must be explicit. He understood where Mr Michalakis was coming from. It took Mr Sheburi to explain what was written in the proposed amendments. The Minister’s understanding was that Mr Michalakis said to put the proposals in such a way that if anybody read it, they would not need Mr Sheburi to explain what it meant. The Minister agreed with Mr Michalakis.
The Chairperson said the wording of the proposals was a matter that the legal teams could look at so that it became clearer. She proposed that the proposals be dealt with in that way.
Adv Mitchell de Beer, Legal Counsel, DHA, said that the Minister had given an appropriate comment already. There were no further comments at that stage.
Ms Williams said the OCSLA noted the proposed amendment to item 3 in respect of clause 3. It would re-draft that clause accordingly. Regarding the proposal by the Department on the electoral reform consultation panel: when the OCSLA drafted an amendment to the Act, the proposal on clause 3 was an insertion in section 114A. It would be an amendment to the principal Act. Once the electoral reform consultation panel had completed its work, it would still be part of the principal Act. Thus, it created a place of permanency within the principal Act itself. Another option that the Committee could consider was the following example: When the OCSLA did an amendment bill, it provided for transitional provisions. It would not be an amendment to a clause in the principal Act. The amendment related to the panel could be drafted as a clause in the Bill, so it would not be an amendment to the principal Act, but merely a clause providing for electoral reform before one got to the short title and commencement. That meant that once the panel had completed its work, the principal Act would not need to be amended to omit the provision on the panel. It would have the same effect of law if it was in the Amendment Bill itself. When passed, such a clause would be part of the Amendment Act, but not part of the principal Act. It would not create a place of permanency in the Act, and it would fall away once the panel had completed its work. That was the drafting proposal – the OCSLA had not fully considered the contents of the clause. There were also drafting proposals that the OCSLA would effect after the meeting when it met with the parliamentary legal advisors and the Department.
The Chairperson said that was important, especially if the clause needed to be permanent in a piece of legislation, and whether it should rather be a transitional provision within the Amendment Bill. She proposed that the legal teams deal with that matter, then give a report on that in the Committee’s next meeting.
Adv Siviwe Njikela, Senior Parliamentary Legal Advisor, CLSO, said that PLS was happy with the Chairperson’s last comment, namely that the legal teams needed to have an opportunity before Wednesday to go through the proposed changes that were tabled in the meeting so that they could clean up the documents. The CLSO took note of what was proposed, and it thought that the proposals contributed to the improvement of the Bill. The CLSO would arrange a meeting with the rest of the legal team to touch on issues that had been raised and make sure that all were on the same page.
The Chairperson thanked the Minister, the IEC, the legal teams from the OCLSA, PLS, the Department, and the IEC for their input into the process. Time was of the essence in most of what the Committee was doing, so she thanked the legal teams for trying to keep up with those processes. She also thanked Members for their inputs.
The Committee would meet on Wednesday to look at the amendments, especially with a view to adopting those in the next meeting.
The meeting was adjourned.
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