Electoral Amendment Bill: ConCourt extension & additional public participation on NCOP amendments, with Minister

Meeting report

Opening remarks
The Chairperson recalled that the Committee had made a decision on Wednesday to consider whether it will subject the substantive amendments to the Electoral Amendment Bill to public hearings. The Committee interacted with the Parliamentary Legal Service to get advice.  The State Law Advisors will also brief the Committee on their opinion. Either way, whether or not the Committee proceeds with the decision to subject the proposed amendments to public hearings, the Electoral Commission (IEC) will also be affected by the decision. This was an important matter of national interest and the Committee would have to be cautious in terms of the process. The Committee is already at the tail end of this process.

He asked the Minster to provide a brief presentation on this matter and this will be followed by the Parliamentary Legal Services.

Minister’s Input

Dr Aaron Motsoaledi, Minister of Home Affairs, asked the legal drafters to make a presentation on the Department’s view.

Department of Home Affairs Legal Drafting team Input
Adv Steven Budlender SC, leader of the Bill’s drafting team, said that he was asked to present his and Adv De Beer’s views on two questions. Firstly, is whether the National Assembly should allow for a further brief period of public consultation on the new amendments. Secondly, is whether an application for an extension should be launched to the Constitutional Court in order to achieve this.
The NCOP Select Committee on Security and Justice has introduced two material and substantive amendments to the Bill. First, is the provision about the level of support that is required in respect of political parties, in order to run in elections. This brought parity to the level of support required of independent candidates. Second, is the provision establishing a consultation panel, which will make recommendations on the way forward, in respect of elections after 2024. These issues were not before the National Assembly, it arose from the public participation process and the public domain. In light of that, the question is whether there is a need for the National Assembly to allow further public participation.

Adv Budlender said that there are three relevant cases. The first is the Electronic Media Network Limited and Others v e.tv (Pty) Limited and Others, where the court said that there was no need to allow further consultation when the people commenting would have been able to anticipate what the change might be, and should have commented during the time of public participation. The second case is the Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others, which also held that there was no requirement for public participation to require an ongoing dialogue, and that the legislature is not precluded from changing its mind. Those two cases might suggest that there is no need to engage in further public consultation. But then there is the third case, which is the South African Veterinary Association (SAVA) v Speaker of the National Assembly and Others, that was the case in which a provision was introduced to deal with veterinarians under the Bill, which had not previously been part of the Bill.  The concern was that that was not subject to public participation.

The cases point in different directions, depending on how it is read. Adv Budlender explained that an argument can be made that there is no need for further public consultation, but himself and Adv De Beer thought that it would be prudent to engage in further public participation. The public participation would focus on the two narrow issues, and it can be a shortened period of public participation. The public participation could also just be by means of written submissions, there is no need to have oral hearings, but there does need to be some form of public participation.

The second point he would make, is that it is for the Committee to determine whether the public participation can occur before 10 December, which is in eight days' time. If there is not time to do it before 10 December, then it is himself and Adv De Beer’s view that an application for an extension must be made urgently. The extension should be launched by Monday, at the very latest, and it should be for a very limited period, perhaps for a month or two months.

In conclusion, Adv Budlender said that the view is that there does need to be further public participation. The extent of the public participation is for the Committee to determine. Under the circumstances, it would be permissible for the Committee to say that the public participation is going to be for a shortened period and that it would only be written and not oral submissions. Once the Committee determined this, then that will dictate whether an extension would be necessary. However, if the Committee is not going to apply for an extension, it must be clear that the Bill is not just passed by the Committee, but that it is also signed by the President into law, by the relevant deadline, which is 10 December.

Parliamentary Legal Service Input
Adv Siviwe Njikela, Senior Parliamentary Legal Advisor, Constitutional and Legal Services Office (CLSO), said that the deadline of 10 December is looming. It seems that it is already apparent that there may need to be an application for an extension. There can be a discussion on how much time is needed, the Parliamentary Legal Service thought that it could possibly be up to February.

Adv Njikela said that if there is going to be further public participation, then the Committee must be mindful of the fact that we are already in December, and that ordinarily has an impact on the quality of public participation. The courts have previously said that it is not reasonable to make this extension over a period when people may be otherwise engaged. The first consideration is that it is December, and by mid-December many people would be going on holiday and doing other sorts of things. This would have an impact on the amount of time that the Committee would want to give the members of the public. The second consideration is that when people leave in December for holidays, then they normally come back mid-January. The decision for an extension would have to be realistic and fair to each other, and to the members of the public who have an interest in this matter.

If indeed there has to be an extension, then the question is to what extent. The Parliamentary Legal Service is of the view that if there are changes that have been affected by the NCOP, then those amendments have to be advertised. This is influenced by the materiality of those changes, and it my assist in determining the amount of time that may be needed.

Ms Daksha Kassan, Parliamentary Legal Advisor, CLSO, said that Adv Njikela had fairly covered everything that their Office has spoken about. She reiterated that guidance was taken from the SAVA judgement. This Committee would need to be guided by the fact that any material changes made to the Bill and that have not been in the public domain, would need to be further consulted upon. The Parliamentary Legal Service therefore agree with Adv Budlender’s conclusion that the proposed amendments made by the Select Committee on Security and Justice is considered to be of a material nature and would need to be advertised, and there should therefore be a call for further comment.

State Law Advisor Input
Adv Suraya Williams, Principal State Law Advisor, Office of the Chief State Law Advisor (OCSLA), said that the OCSLA has listened carefully to the views expressed by the Department and Parliament. The OCSLA is in agreement with the views expressed by the Department on the applicable case law, with regard to the public consultation.

Discussion
Ms M Modise (ANC) thanked the officials for the guidance and the legal advice. She suggested that the Committee accept the guidance and follow the proper process to seek an extension. The amendments should be taken to the public for comment. She further suggested that the public participation should not be through oral comment, because that would take too much time. She felt that it should be through written submissions, as it would take about 14 days.

She said that the Committee would have to be mindful that it might not be able to advertise for public comment on the amendments during the festive season; the Committee should consider a more convenient time in January. The Committee should take cognisance of this, because it would not want to find itself on the wrong side of the legal processes of Parliament. The Committee also has a responsibility to the members of the public, who have shown extensive interest during the past few months of dealing with this Bill. The Electoral Amendment Bill really does speak to the heart of South Africans.

Ms L van der Merwe (IFP) welcomed the legal opinion. She fully agreed that the changes are of a substantial nature and the Committee would have to further consult with the public on these substantive and material changes. It is very clear that the Committee would not make it for the Constitutional Court deadline of 10 December. She agreed with Adv Budlender’s view, that the Committee would urgently have to approach the Constitutional Court for an extension, and the period of the extension should be kept short.

She said that if the Constitutional Court grants the extension, then the Committee could immediately start advertising and ask the public for written submissions. There are concerns that it is December and people may be on holiday, but the period for written submissions can be extended into January. She suggested that if the Committee does see that there is a lot of written submissions, then the Committee could consider having one or two days of virtual oral hearings towards the end of January. Thereafter, the Bill can be speedily finalised in the beginning of February, and be passed by the National Assembly just after the opening of Parliament in mid-February. She felt that the Committee should ask the Constitutional Court to grant the extension until the end of February, as this will allow the Committee to do justice to the process.

Ms M Molekwa (ANC) agreed with Ms Modise and Ms van der Merwe’s comments. She asked if the Committee could be advised on whether the extension would have any legal implications.

Ms A Khanyile (DA) agreed that the Committee would have to approach the Constitutional Court to request an extension, to allow for further public participation. The Committee would need to agree on a timeframe to advertise and to allow the participation, so that it can inform the extension that the Committee needs to request.

Ms A Ramolobeng (ANC) agreed with the legal advice that the Committee do need to seek an extension, and that it should be requested by Monday, latest. She concurred with Ms Molekwa’s question, that the legal team should inform the Committee if there would be any legal implications.

Mr F Mulder (FF+) agreed that the Committee should approach the Constitutional Court for an extension, as soon as possible. He said that it was very important for the Committee to decide on exactly what would be asked from the Constitutional Court. It is unfortunate that the Committee is faced with this situation at this time of the year, but it is what it is, and it is the responsible thing to allow for further public participation.

Mr A Roos (DA) said that the legal advice certainly added weight to the argument that the Committee should request the extension, to allow for further public participation. He felt that three months would be a reasonable extension to request, this should allow the Committee to complete this process by the end of February.

Mr K Pillay (ANC) said that at all times, the Members of the Committee have ensured that whatever is done is within the prescripts of the law. At all times, the Committee has put the citizens of the country first. All South Africans are patiently waiting for this Committee to finalise the Bill. The Committee does not want to leave any loopholes and would want to finalise this process in the right way. In light of that, he supported the proposal that the Committee request an extension from the Constitutional Court, and that the Committee call for public comment on the substantive amendments to the Bill.

Mr Mosotho Moepya, Chairperson, IEC, said that the Bill not being ready by 10 December is a reality that the IEC would have to face. This means that the IEC’s preparations would not be as it was thought.

He noted that Adv Budlender spoke of an extension that would be for a period as short as possible. He also heard that Members have made suggestions for about two or three months. He felt that there is a danger in an extended period on the part of the IEC, but accepting that this is a reality, he agreed that the time period must be as short as possible.

He said that another important aspect to consider is whether the Committee would advertise for public comment upfront, or if it would wait for an extension to be granted by the Constitutional Court. This is a material aspect, because it is going to determine how soon public comments will be received and considered. The IEC would have to confront the realities and find ways to deal with it in the best way that it can.

The Chairperson noted that the Committee has made the decision that it will approach the Constitutional Court for an extension. This is informed by the two substantive amendments affected by the NCOP. The Committee considers the proposed amendments by the NCOP as being adopted, and it will seek further consultation with the public. The Committee must approach Parliament to request permission for this decision.

The Committee must be cautious of the period in which it does public consultations. The Committee would opt for written submissions, for the shortest possible time. There are only two specific amendments that the Committee is advertising for written submissions.

The Committee can seek guidance on whether it can convene during the constituency period, to pass the Bill. The Committee should conclude its work in time for the President to also consider the Bill.
He reiterated that the call for written submissions would be for the shortest possible time. He had already informed the staff to prepare an advert to call for written submissions.
He asked the legal advisors to inform the Committee of the recourse in the event that the Committee is not granted an extension from the Constitutional Court.

Mr Roos noted that the Chairperson said that the public participation should only be on the two amendments that were pointed out to be of a material nature. He suggested that the public participation should be on all of the NCOP amendments. He explained that some people might argue that the other amendments might also have a material change to the entire Bill. For instance, some might argue that the amendment about using a vacancy calculation instead of the forfeiture calculation is of a material nature, because it changes the PR allocation. He said that this process of further public participation will be time consuming, and the Committee should rather be safe and open all of the amendments proposed by the NCOP for public comment.

Mr Adam Salmon, Committee Content Advisor, informed the Committee that an advert to call for public comments has been prepared, and it does include all of the proposed amendments by the NCOP. He said that the Committee would have to wait until it gets the approval for an extension from the Constitutional Court, before it posts the advert.  At this stage, it is estimated that public submissions will be allowed during the last two weeks of January, as most people would be back from their festive season break. The Committee would also need two weeks to look at the submissions and for the National Assembly to complete the process, bearing in mind that the presidency would also need at least a month from then to consider the Bill. The Committee could potentially meet during the first or second week of February to expedite the process.

Adv Njikela referred to the question of whether the scope of the advertisement should be limited to the amendments proposed by the NCOP. He said that the Parliamentary Legal Service is of the view that the level of engagement should be broader than just what may have been proposed by the NCOP, rather than it being limited to specific issues. This is predicated on the assumption that an extension is granted, and it should not have an impact on the timeframe of the extension that is sought.

He referred to the Chairperson’s question on what would happen if the Constitutional Court does not grant the extension. This was a difficult question to answer, because whether the Committee is granted the extension or not would depend on the case that it has made. On numerous occasions, the Constitutional Court has expressed that the quality of democracy is influenced by the extent of public participation; it was his preliminary view that the Constitutional Court had said so numerous times and he does not think this instance would be any different. But if it comes to that decision that the Constitutional Court does not grant an extension, then he would suspect that the Constitutional Court would issue specific directions through Parliament, in terms of how to deal with this piece of legislation, in terms of the management of elections. He does not foresee that the Constitutional Court would simply refuse an extension, without providing directions as to how Parliament and the IEC should deal with the matter moving forward.

Ms Kassan said that she wanted to clarify what Adv Njikela meant to say, but might have said incorrectly. She did not think that he meant to say that the entire Bill must be open for public comment, but what he had intended to say was that the Committee should not limit the public participation to only the two issues raised by Adv Budlender. Similar to what Mr Roos had said, the Parliamentary Legal Service is of the view that the Committee should extend the public participation to all the proposed amendments made by the Select Committee on Security and Justice. She concurred with Mr Roos that the amendments proposed to Schedule 1, which is clause 21, could be considered to be of a material nature, because the nature of the calculations is now changing, where the most votes that an independent candidate would get is now changed to the highest proportion of votes.

Mr Salmon agreed with Ms Kassan’s clarification.

The Chairperson agreed that the Committee would advertise to call for public comments on all the proposed amendments made by the Select Committee on Security and Justice. He asked that the C-list of the Bill be presented.

Briefing by the State Law Advisers on the proposed amendments of the Electoral Amendment Bill
Ms Sarah Govender, Senior State Law Advisor, OCSLA, referred to the C-list of the Bill. She read through the entire list, to place all of the proposed amendments of the Electoral Amendment Bill on record.

Discussion
Mr Roos referred to the wording of the ninth item of clause 21, which states “...minus the votes cast in such province, in favour of independent candidates already allocated one seat”. He pointed out that in other sections the document referred to “region or province”. He asked if the ninth item of clause 21 should not also read “region or province”.

Ms Govender replied that the wording was actually omitted from the Bill. She said that the IEC would be in a better place to explain the reasoning for the wording of “province” and then “region or province”.

Ms van der Merwe referred to the new clause on the Electoral Reform Consultation Panel. She said that it read as though the Minister would solely be responsible for appointing and relieving members of that panel of their responsibilities. She thought that the appointment of the members of this panel should be in consultation with Parliament. She suggested that once the Minister had recommended people to serve on that panel, that Parliament should then be given the opportunity to make inputs on this. She felt that there should be a more consultative process in terms of appointing people to the panel.

The Chairperson said that Ms van der Merwe had raised an important matter that the Committee might note for now and deliberate on after the Committee has received and considers the written submissions.

Ms Melanie du Plessis, Manager: Business Systems, IEC, said that Ms Govender was correct to say that the wording that Mr Roos had pointed out is now omitted from item 7 and item 12, which deals with forfeiture. The reason for combining the regions and provinces in the vacancy calculation is basically just for experience, so that there is no need to duplicate the exact same wording for a “region or province”, because it would work in the same way.

Minister Motsoaledi said that he would not be averse to the Committee having deliberations on the point that Ms van der Merwe had raised. However, he said that clause 23 very carefully explains that the Minister would not just appoint people willy-nilly. The clause outlines the type of people that would be appointed, in terms of their qualifications and attributes. The clause also says that the Minister should consult with the IEC.

He agreed with the Chairperson’s advice that the Committee can have further deliberations on this matter to consider whether or not it would be necessary for appointments to be in consultation with Parliament.

The Chairperson said that the Committee will note the C-list of the Bill, and adopt it after considering the public submissions.

Ms Kassan agreed that the Committee had sufficiently dealt with the matter to allow the process to unfold. The Committee can reconvene on these matters once the public comments are received.

The Chairperson asked Ms Kassan when the Committee would make its application.

Ms Kassan said that the paperwork for the application would be done immediately after this meeting.

Draft advert for public comments
Mr Salmon flighted the draft advert, which invited all stakeholders and interested parties to make written submissions on the proposed amendments from the NCOP on the Electoral Amendment Bill. it indicated that submissions must be received by no later than 12:00 on Tuesday, 31 January 2023, but this date may be subject to when the Constitutional Court grants the possible extension.

The Chairperson asked if it was possible to shorten the period for public comment.

Mr Salmon replied that it could be shortened, but that it should be a minimum of two weeks. He said that there should be consideration that the festive season is until mid-January. So it is likely that public comments would be received from mid-January until the end of January.

The Chairperson asked if Members agreed that once the Constitutional Court has granted the extension, then the Committee can determine the shortest time for public comment.

Closing remarks
The Chairperson thanked the Minister, and the officials from the drafting team, IEC, the Parliamentary Legal Service and OCSLA for assisting the Committee in resolving the issues, and for ensuring that the public are given the opportunity to make further comments on this Bill.

Mr Moepya wished the Members and the Department well. Given the weight of the Electoral Amendment Bill, he was not sure that this would truly be holidays, because work has to happen. The IEC is grateful for all the deliberations that sought to strengthen this piece of legislation, that is crucial for the work that the IEC does.

Minister Motsoaledi agreed that it would not feel like a holiday, considering the amount of work that is awaiting. He was certain that the Committee would be in touch with the officials and the Department over the holidays, especially since it needed to submit an application for extension to the Constitutional Court.

The Members of the Committee, and the officials from the IEC, the Parliamentary Legal Service and OSCLA thanked each other for the hard work and wished each other well for the festive season.

The meeting was adjourned.