Electoral Amendment Bill: deliberations, with Minister

NCOP Security and Justice

23 November 2022
Chairperson: Ms S Shaikh (ANC, Limpopo)
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Meeting Summary

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Tracking the Electoral Reform Legislation in Parliament

The Select Committee on Security and Justice sat to deliberate on the refinements made by the Parliamentary Legal Advisors (PLA), at the request of Members, on certain aspects of the proposed amendments to the Electoral Amendment Bill (EAB), particularly those pertaining to clauses three and six of the Bill.

Members voiced their satisfaction with Clause 23 (3) (c), which refers to the Electoral Reform Consultation Panel, as it required that the Panel submit quarterly progress reports to the Minister. Furthermore, they felt that the clause correctly set out the processes that the panel needed to follow, such as having to submit a report within twelve months and in the event it is unable to do so on time, request an extension three months prior to the due date, from the Minister, of a period no longer than six months; and allowing a member of the panel the opportunity to make written representations, which the Minister consider when contemplating their removal.

However, there was disagreement regarding a proposal made to add a subsection C to Clause 23 (16) which would specify that once a panel member has ceased from their duties, he or she cannot make public comments unrelated to the contents of the report the panel would have submitted to Parliament or the Minister unless required to do so by either one. Certain Members argued against the proposal on the basis that this would be denying panel members of their right to freedom of speech.

Those in favour of the proposal, including the Minister of Home Affairs, countered that allowing the panel members to speak freely on the reports would not only breach the principle of confidentiality but also cause confusion within the public on the resolutions taken by the panel.

Following the debate, the Chairperson resolved that the Committee would obtain a legal opinion from PLA to clarify the matter, before the end of the day.

The Chairperson said that the Committee did all it could to process the matters as swiftly as possible. They have reached a point where there are proposed amendments on the table. The intention is to deal with the adoption of these at the next meeting. After its adoption on Friday, the bill would be tabled in the National Council of Provinces on 29 December.

Meeting report

The Chairperson explained that during the meeting held on 21 November 2022, the Committee considered the proposed amendments to the Electoral Amendment Bill (EAB). Subsequent to those deliberations, it requested the Parliamentary Legal Advisors (PLAs) to refine some aspects of the amendments, particularly those pertaining to clauses three and six of the Bill.

Once the State Law Advisor presented the corrections made to the proposed amendments, Members would be given the opportunity to consider and deliberate on them. Although, their adoption, along with the Committee report, would be deferred to Friday 25 November 2022.

Adv Suraya Williams, Principal State Law Advisor, Office of the Chief Law State Advisor (OCSLA), stated that the OCSLA, together with CLSO, the department and the Electoral Commission of South Africa (IEC) re-drafted clauses three and six of the EAB, to make them more understandable. In addition, a new clause was added, which spoke to the Electoral Reform Consultation Panel. Thereafter, she asked if PLA should only take the Committee through the refinements made or the entire draft Bill.

The Chairperson said it would be better for her to take the Committee only through the refinements made.

Briefing on the amendments made to clauses three and six of the EAB

Adv Adhikarie and Ms Sarah Govender, Senior State Law Advisor, OCSLA, took the Committee through the amendments made to clauses three and six of the EAB.

Read: Proposed Amendments: [B1B-2022] Electoral A/B

The Chairperson opened the floor for discussion.

Discussion

Mr G Michalakis (DA, Free State) highlighted that the additions made by Members were a result of the questions posed by him and the Chairperson on the Bill. Nonetheless, he thanked all of those involved for their efforts in making the clauses clearer.

Ms M Bartlett (ANC, Northern Cape) explained that clauses three and six address issues related to the equality of independent and party candidates. Afterwards, she noted that the 20% threshold required for regional elections had been made clearer.

She was pleased that Clause 23 (3) (c), which refers to the Electoral Reform Consultation Panel, requires that the Panel submit quarterly progress reports to the Minister. Furthermore, she felt that the clause correctly set out the processes that the panel needed to follow, such as having to submit a report within twelve months and in the event it is unable to do so on time, to request an extension of three months prior to the due date, from the Minister, of a period no longer than six months; and allowing a member of the panel the opportunity to make written representations, which the Minister must consider when contemplating their removal.

Mr C Dodovu (ANC, North West), referring to Clause 23 (16) (b) of the Bill – which states that the Minister must dissolve the Panel once he/she and Parliament no longer require the panel to perform its functions – proposed the addition of a further subsection (subsection C) which would specify that once a panel member has ceased from their duties, he or she cannot make public comments unrelated to the contents of a report the panel would have submitted to Parliament or the Minister unless required to do so by either one.

Mr Michalakis contested the proposal and argued that the panel members should not be prevented from expressing their personal views relating to the report, as this would be denying them their right to freedom of speech. Similar to Parliamentary Committee reports, the panel should allow for minority views to be expressed. Doing so would also serve the public interest in understanding the inner workings of the panel.

Ms C Visser (DA, North West) supported Mr Michalakis’ view and stressed that the Committee had to make proposals that were in line with the Constitution.

Mr K Motsamai (EFF, Gauteng) requested that the proposal be addressed by the National Assembly.

Mr Dodovu argued that a precedent was created by the Ministerial Advisory Committee (MAC) that made recommendations to the Minister on the EAB, where all deliberations were kept private, even though it was clear that there was disagreement between the members involved. Allowing the members to speak freely on the reports would not only breach the principle of confidentiality – which he viewed as being unacceptable – but also cause confusion within the public on the resolutions taken by the panel, he outlined.

While not supporting the suppression of one’s right to freedom of speech, he highlighted that there were limits to this right. Due to the sensitivity of the issue, he suggested that Committee seek a legal opinion.

The Chairperson agreed that the principle of confidentiality was important, however, it had to be weighed against the Constitution. As such, she asked if the PLA would be open to providing the Committee with a legal opinion on the matter.

Dr Aaron Motsoaledi, Minister of Home Affairs, confirmed that the members of the MAC were not in agreement on the Bill. When the Bill was enacted, it was alleged that the Minister ignored the decision of the majority, which surprised him, because the terms of reference made no reference to a majority/minority view. Rather, the terms of reference stated that more than one proposal should be provided to the Minister for his consideration. Following this, he asked the PLA to explain how such decisions should be taken and whether the principle of majority/minority view applied.

Regarding the concern of the proposal possibly restricting the panel members’ freedom of speech, he highlighted that when a judgement is served by a full bench in the court, none of the judges who held opposing views discredit the majority decision taken. If an individual sought to retain their freedom of speech on all matters concerning the report, then he or she should decline the invitation to form part of the panel. Furthermore, in line with the legal principle of Functus Officio (which refers to an officer or agency whose mandate has expired, due to either the arrival of an expiry or an agency having accomplished the purpose for which it was created) if a member is opposed to the direction taken by the panel, he or she should vacate their position.

The Chairperson summarised that the Minister and Mr Dodovu’s views related to how the panel took decisions and how it communicated them. Thereafter, she asked the PLA if it could advise the Committee on this.

Adv Mitchell De Beer, Legal Counsel, Department of Home Affairs, requested that counsel for the DHA and the PLA be provided with the opportunity to look into the issues before providing any legal advice. The purpose of the panel is to make recommendations that will enable Parliament to take decisions, he highlighted.

The Chairperson asked that the PLA refer back to the Committee before the end of the day so that it could consolidate all of the information for the adoption of the report on Friday.

She felt that there may be a gap in clauses three and six regarding what would happen to an independent candidate that did not meet the 20% requirement for the highest regional quota if they intended to contest all nine regions. To gain clarity, she asked the IEC if this matter was addressed in the Bill.

Mr Glen Mashinini, Chairperson, IEC, indicated that it was implied in the Bill but not specified.

Mr Sy Mamobolo, CEO, IEC, confirmed that it was implied in the Bill but not specified. The IEC believed that the solution to this issue was to include a provision that will assess an independent candidate that did not meet the 20% threshold in a previous election, if it did so in the region with the second-highest quota (that he or she contested) and if that is met, he or she would qualify to contest the other regions. For instance, if a party or independent candidate wants to contest all nine regions and submit all supporting signatures but did not meet the 20% threshold in Gauteng, which has the highest quota (92), then they would be disqualified from that regional ballot, he outlined.

Thereafter, the IEC will have to assess whether either met the 20% threshold in the regional area with the second highest quota. This would be true for the quotas of all the regions. If the Committee accepted this principle, the IEC would refer Section 31 and 27 to the PLA as well as counsel for the department, for the addition of a new clause.  

Adv Siviwe Njikela, Senior Parliamentary Legal Advisor, CLSO, said that in view of the deadline (10 December) and the issues that have come up, there is a real likelihood that the processes of Parliament may not be finalised by this date. There seem to be matters that have to be referred back to the National Assembly. As a result, they were exploring the possibility of seeking an extension as discussed in the last meeting.

He requested his colleagues to add to his submission.

Ms Daksha Kassan, Parliamentary Legal Advisor, CLSO, stated that Adv Njikela had covered everything.

Ms Telana Halley-Starkey, Parliamentary Legal Advisor, CLSO, mentioned that the CC has previously criticised Parliament for submitting extension applications late. The last day for the court roll is 30 November. Both the IEC and counsel for the department supported an extension, within reason.

The Chairperson said that the Committee did all it could to process the matters as swiftly as possible. They have reached a point where there are proposed amendments on the table. The intention is to deal with the adoption of these at the next meeting. After its adoption on Friday, the bill would be tabled in the National Council of Provinces on 29 December. She noted the concern and this is a broader matter for Parliament to address and hopefully, this matter will be elevated within the institution. From its side, the Committee is trying to finalise the bill so that it gets to the NA. It did not want to pre-empt what the Portfolio Committee does with the proposed amendments. She was not certain if the Committee had the powers to instruct that this process (seeking an extension) be initiated. but there is a possibility that the Portfolio committee would accept the Select Committee’s proposals

Following those remarks, she thanked all the officials who have been involved in the process for their tireless work. She reminded the legal team to get back to the Committee on the outstanding matters before the Committee finalises the Bill and accompanying report on Friday.

The meeting was adjourned.

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