Electoral Amendment Bill: deliberations; DHA & Parliament Legal Services on legislative processes to introduce an Executive & Committee Bill; with Deputy Minister
07 February 2023
Chairperson: Mr M Chabane (ANC)
Tracking the Electoral Reform Legislation in Parliament
ATC221125: Report of the Select Committee on Security and Justice on the Electoral Amendment Bill [B1B-2022] (National Assembly – sec 75), dated 25 November 2022
In a virtual meeting, the Portfolio Committee convened to deliberate and finalise its decisions on the Electoral Amendment Bill.
Following the deliberations during the previous meeting, the Committee resolved to lower the signature requirement quota to 15%. The Economic Freedom Fighters (EFF) did not support the lowering of threshold, as its view was that it should be high enough to discourage any chance-takers from participating as independent candidates.
The Committee had further resolved that the Minister would establish the Electoral Reform Consultation Panel, in consultation with the Independent Electoral Commission (IEC) and Parliament. The EFF and Inkatha Freedom Party (IFP) wanted the responsibility for the establishment of the panel to be vested in Parliament, in consultation with the IEC.
Later in the meeting, the Committee was briefed on the process and estimated timeframes to develop a Committee Bill and an Executive Bill, respectively. The Committee would decide on a process so that consequential amendments could be made to other pieces of legislation, to fully accommodate independent candidates.
The Members were of the view that the Committee Bill might be a better option, particularly considering the limited time, as the IEC would be under pressure in preparation for the 2024 elections.
The Chairperson said the meeting was for the Committee to deliberate and finalise its decisions on the Electoral Amendment Bill. The Department of Home Affairs (DHA) and the Independent Electoral Commission (IEC) made presentations in response to public comments. The Committee had endorsed issues that arose from those public comments. The Content Advisor would provide a recap on the issues that the Committee would deliberate on and finalise.
The Committee would also receive presentations from the Parliamentary Legal Services and DHA on the legislative process to introduce a Committee Bill and an Executive Bill.
The Chairperson noted the apologies from Ms A Khanyile (DA) and Ms T Legwase (ANC). He also noted an apology from the Minister of Home Affairs, who had to attend a Justice, Crime Prevention and Security (JCPS) Cabinet meeting.
Electoral Amendment Bill: Recap on deliberations and responses
Mr Adam Salmon, Committee Content Advisor, provided a recap on some of the issues raised in the submissions, particularly with regard to the signature requirement and the Electoral Reform Consultation Panel. The main issues raised were:
Clauses 3 and 6 on the signature requirement
Should the 20% signature requirement for independent candidates and unrepresented political parties be lowered to ensure fairness compared to incumbent political parties? If so, what percentage should it be lowered?
Clause 23 on the Electoral Reform Consultation Panel
Should the legal authority to establish and control the panel be vested in Parliament, and the Minister provide only administrative and operational support? This would involve calling for nominations, the panel reporting directly to Parliament, monitoring and supervising the panel, remunerating panel members, logistical arrangements of the panel etc.
Should Parliament be involved -- consulted with, similar to the IEC, as provided for in clause 23(9)(b) -- in the appointment of the panel?
Should the panel decide on its functions independently?
Should the panel be established within four months of passing the Act, as provided for in the Bill, or within three months, as proposed?
Should the panel complete its report within 12 months after the 2024 elections, as provided for in the Bill, or within four to six months, as proposed?
Should the panel be required to substantially engage and educate the public through all media forms?
Should the panel be composed of seven, rather than nine, members in order to save costs?
Should the panel include International experts, constitutional legal drafting experts, democracy experts and civil society organisations?
The Chairperson asked the Parliamentary Legal Services if any other issues had arisen.
Ms Daksha Kassan, Parliamentary Legal Advisor, Constitutional and Legal Services Office (CLSO), said that another question that arose in the submissions was whether independent candidates should provide a lesser percentage of the quota, compared to parties.
There was also an issue about how Clause 23 was currently drafted -- whether the word “section” in Clause 23 should be an amendment to the word “Act”.
Mr K Pillay (ANC) said that the ANC had considered the submissions and consultations. The party would like to propose that the 20% signature requirement be reduced to 15%.
He strongly recommended that the Electoral Reform Consultation Panel reside with the Minister, for various reasons. The Electoral Amendment Bill and the discussion of electoral reform was the responsibility of the DHA, hence it should be the Minister that was the legal authority to establish and control the panel. He noted that there would also be broad consultation on electoral reform.
Ms L van der Merwe (IFP) said she had been raising the same points since last year. The IFP held that the 50%, 40%, 30% and 20% signature thresholds remained too high. The IFP proposed that it should be a 15% or 10% signature threshold. Therefore, she happily supported the proposal from Mr Pillay that the signature requirement be reduced to 15%. This would only be fair, because the Committee had asked South Africans to comment on the signature threshold. The public comments had extensively suggested that the 20% signature requirement was too high -- that it was a form of disenfranchisement and a barrier to entry.
She recalled that the Ministerial Advisory Committee (MAC) had advised the Committee on the process of the Electoral Amendment Bill. The Minister had exercised his prerogative and came under criticism because of the option he had picked. She made it clear that this was not to debate on a specific Minister -- it was an issue of the Constitution and the responsibilities of Members of Parliament (MPs). She said that electoral reform was not the responsibility of the Executive, and that responsibility resided with Parliament.
She further recalled that at the start of this process on the Electoral Amendment Bill, there was a discussion in the Chief Whips' Forum which suggested that the best way to deal with this was to establish an ad hoc committee. At that stage, there were also discussions about an advisory panel that would report back to an ad hoc committee. She believed that the appointment of the Electoral Reform Consultation Panel should be an inclusive process involving all stakeholders, and that the authority should not be vested solely in the Minister. Parliament's constitutional obligation was to lead the electoral reform process. She maintained the view that the Electoral Reform Consultation Panel should be an independent panel appointed by Parliament, in conjunction with the IEC and the Minister.
She referred to the provisions on the Electoral Reform Consultation Panel, in terms of its work. Once the panel was constituted, it should be able to give Parliament a programme of what it wanted to do. It should not be given a narrow mandate.
Mr A Roos (DA) supported Mr Pillay’s proposal to reduce the signature threshold to 15%. He said that 15% was the lowest threshold presented by the IEC. He hoped that the agreement on lowering the threshold would resolve the issue of the signature requirement. He assumed that the decision to lower the signature threshold would not require re-advertisement for public comment, as the Committee had sought clarity on this.
He believed that there was a general feeling of a little dissatisfaction with the Bill as it currently stood, particularly following the MAC process. He recalled that the chairperson of the MAC had questioned how this process had ended up with a complex system that was not even part of the proposals, especially the calculation of seats, which was extremely confusing to everybody.
He said that the Committee should be involved in appointing the Electoral Reform Consultation Panel, to ensure that it was truly representative. He concurred with Ms van der Merwe’s view that the panel should ultimately be the responsibility of Parliament. He supported the proposal that the panel be established within four months of passing the Act, and that the word “section” in Clause 23 should be an amendment to the word “Act”. This would give certainty that Parliament would receive a report 12 months after the 2024 elections, so it could then develop a Bill that truly reflected the will and inputs of people on the electoral reform process.
Ms M Molekwa (ANC) said that her comments had been covered by Mr Pillay.
Mr T Mogale (EFF) said that lowering the signature threshold would not satisfy those who had been against a threshold being there. He believed that civil society organisations would still argue that the 15% signature threshold was too high, and that it was unfair to independent candidates.
The view of the EFF was that the threshold should be there, and that it should be high enough to discourage any chance-takers from participating as independent candidates. The EFF has expressed its reasons for this. Independent candidates should prove that they could garner 20% of the votes required for a seat. The EFF did not support the lowering of the threshold to 15%.
The EFF were of the view that the Electoral Reform Consultation Panel should be the prerogative of Parliament. Parliament should appoint the panel, not the Minister.
Mr J Mulder (FF+) said that the FF+ agreed on lowering the signature threshold to 15%. The decision to lower the threshold was considerate to the public participation process, and would ensure that the process was fair.
He agreed that Parliament should have oversight on the Electoral Reform Consultation Panel, and that the quest for electoral reform should happen as soon as possible after the 2024 elections.
Ms M Modise (ANC) concurred with the views expressed by Mr Pillay. She was also of the view that lowering the 20% signature threshold would really be giving in to civil society organisations threatening to take this process of amending the Bill to court. She felt that the Committee was conceding too much.
She argued that political parties had membership support they had garnered throughout the years, proving that they had a chance at participating in elections. This was unlike independent candidates, who would be new entrances in the elections. Lowering the threshold too much would make the entrance for independent candidates too easy. She noted that the public comments had largely indicated that people felt that the 20% signature requirement remained too high. She agreed with Mr Mogale’s comment that civil society organisations might not be completely satisfied. However, she supported lowering the 20% signature threshold to 15%.
She agreed that the Electoral Reform Consultation Panel must be established four months after the passing of the Act, and that the panel should provide its report 12 months after the 2024 elections. She was of the view that the authority to establish the panel should be vested in the Minister, in consultation with the Committee. She said the Committee had been seized with this process for the past two years, and felt that the Committee should also have an opportunity to have a say in establishing the panel.
Adv B Bongo (ANC) supported Mr Pillay’s comments. He agreed that the signature threshold should be lowered to 15%, but that a situation of extensive ballot papers should be avoided. While the technique of decision-making lay in consultation, it should not make things difficult for those who were cast on the ballot paper.
He said that the Electoral Reform Consultation Panel was an administrative matter that Parliament could not perform -- it must be performed by the Executive. He agreed with Ms Modise’s comment that the Minister must exercise this administrative action in consultation with the committee of Parliament responsible for electoral reform, which was this Portfolio Committee. The Minister was responsible for the administrative action predetermined by what the Act states.
Ms L Tito (EFF) agreed with Mr Mogale. She said that the 20% signature requirement should stand as it was, and that the bar should not be lowered. She recalled that the Minister had said that lowering the threshold to 15% might open a can of worms.
She felt Parliament should appoint and establish the Electoral Reform Consultation Panel, not the Minister. This would ensure that the process was fair and that the Minister was not put in a position where he was questioned over his political party stance.
The Chairperson thanked the Members for contributing to the discussion and for considering the issues raised by the public. The Committee had always been cautioned to deliberate on issues in line with what was enshrined in the Constitution. He observed that the Committee had considered lowering the signature threshold from 20% to 15%. He had also noted the view that the Committee should affirm the 20% threshold, or increase it.
Ms Modise moved for the adoption to lower the threshold to 15%. Ms Van der Merwe seconded.
Mr Mogale noted the objection of the EFF.
Clause 23: to provide for the Minister to establish the Electoral Reform Consultation Panel
The Chairperson said that the MAC report had advised the Committee on two options the Executive may consider when drafting the Electoral Amendment Bill. The process had been subjected to public comment. The Committee had affirmed the options adopted, and the process that had taken it this far. He understood that the Minister had been criticised for the option that he had submitted to Parliament for the attention of the Committee. The Committee would not undermine the input that had gone into the Electoral Amendment Bill thus far, which included the authority that Parliament and the Executive had exercised over time. The Committee, the IEC and the Executive had been seized with this process. He believed it was important for the Executive to be assigned the responsibility for establishing a panel that would further consult on the options for electoral reform, in consultation with the Portfolio Committee on Home Affairs and the IEC.
Ms Molekwa moved for the adoption by the Committee that Clause 23 would provide for the Minister to establish the Electoral Reform Consultation Panel.
Ms Modise seconded.
The Chairperson noted the objection of the IFP and EFF.
State Law Advisor input
Ms Sarah Govender, Senior State Law Advisor, Office of the Chief State Law Advisor (OCSLA), wanted to ensure that the OCSLA correctly captured the decisions in today’s meeting.
She understood that the signature requirement would be changed to 15%, and the OCSLA would make this amendment in the C List.
She also understood that Clause 23, on the Electoral Reform Consultation Panel, would remain as it was in the draft Bill. She asked the Members if there were any other changes they foresaw in respect of the Electoral Reform Consultation Panel, or if it would remain exactly as it was.
Mr Roos said that he had proposed that the commencement of the panel should be within four months after the passing of the Act. He asked for clarity on whether his proposal was part of the general agreement on Clause 23.
Mr Pillay agreed that the Electoral Reform Consultation Panel must be established four months after the passing of the Act, as clearly outlined by Ms Modise. It was also for the Committee to endorse that the word “section” be changed to “Act” in Clause 23(1).
The Chairperson agreed with Mr Roos and Mr Pillay, as those decisions had been carried in the Committee’s deliberations.
Ms Govender said that the OCSLA had noted what the Committee had said, and would give effect to the changes in that regard.
Committee Bill process and timeframes
Ms Kassan said that during the processing and deliberations on the Electoral Amendment Bill, the Committee had been informed that to fully accommodate independent candidates, consequential amendments would need to be made to other pieces of legislation. There were two ways in which such amendments could be affected, which was through either an Executive Bill or a Committee Bill.
She briefed the Committee on the process and estimated timeframes regarding a Committee Bill, should this option be followed:
- Before any amendments or Bill could be drafted, a drafter needed a policy document/concept outlining what the Committee hoped to achieve and what the amendments/Bill should entail.
- Once the policy was developed, an average of between six to ten months was required for the development and processing of the Bill in the first House, and then an average of between two to three months was required in the second House. Thus, eight to 13 months was required for the processing of the Bill in Parliament.
(See presentation attached for details)
Executive Bill process and timeframes
Mr Njabulo Nzuza, Deputy Minister of Home Affairs, introduced the presentation of the DHA. He advised the Committee to alert the Speaker of Parliament that there would soon be changes in how Parliament was managed.
Adv Moses Malakate, Legal Advisor, DHA, briefed the Committee on the process and estimated timeframes regarding the development of an Executive Bill, should this option be followed. The presentation outlined the various phases, such as policy development, drafting, stakeholder engagement, and obtaining legal opinion. Depending on its complexity, the process of developing an Executive Bill might take longer for the Minister to introduce the Bill to Parliament.
(See presentation attached for details)
Ms van der Merwe said that the two processes that had been outlined had been made clear. She was familiar with the processes. She thanked the presenters for the presentations.
Mr Roos said that it seemed as if the process of developing an Executive Bill would take considerable time, which would be past the 2024 election date. He asked the IEC if there was a cut-off date by which this process would need to be done to fit into the election schedule. He understood that the latest election date would be 14 August 2024.
Ms Molekwa welcomed the presentations that outlined the two processes.
Mr Pillay said that the Committee had been aware that there would be consequential amendments from the beginning. He supported the view that the Committee Bill might be a better option, particularly considering the estimated timeframes. He recommended that the Committee start the process immediately, given that it had very limited time. He questioned whether the Committee would be able to pursue this process before the 2024 elections, because it would not want to put the IEC under pressure.
Ms Tito agreed that the Committee would not want to put pressure on the IEC, considering that next year was the national elections. She agreed that the Committee should start this process immediately.
Mr Mulder said that his comments had already been addressed.
Ms Modise acknowledged the presentations and the two processes that had been outlined.
Adv Bongo said that he was familiar with the processes. He cautioned that the Committee would need to ensure it met all the necessary deadlines.
The Chairperson asked the IEC to comment on its schedule, in response to the process that the Committee would follow to address the consequential amendments.
Mr Mosotho Moepya, Chairperson, IEC, said that the Commission had noted the timeframes that had been bandied around. He emphasised that the consequential amendments would be very important for the 2024 elections. The estimated timeframes appeared to be very long, and may go beyond the 2024 elections. The IEC was concerned about this. It would reflect on this, and find ways to engage. It would provide the Committee with a response on its position by the end of this week, or early next week.
The Chairperson asked if there were any other outstanding matters.
Ms Govender asked the Chairperson if she could clarify the changes that would be effected, so there was certainty. The C List would be finalised by the close of business today.
The Chairperson agreed.
Ms Govender said that in line with the decisions made by the Committee, the amendments that would need to be given effect to were with regard to the 20% signature requirement, which would now be 15%.
On the new clause regarding the Electoral Reform Consultation Panel, the changes that would be made were that Clause 23(1) would read as: “Within four months after the commencement of the Electoral Amendment Act, 2023.”
On the appointment of panel members, Clause 23(9)(b) would read: “In consultation with the Commission, and Parliament, appoint nine members to the Panel from such nominated persons who satisfy the criteria specified in paragraph (a).”
As a consequence of that, and with regard to the vacancies that may arise, changes would also be made to Clause 23(13)(a), which would now say: “Should a vacancy arise in the Panel, the Minister in consultation with the Commission, and Parliament, must fill the vacancy from the persons already nominated in the process contemplated in subsection (9)(a).”
The Chairperson asked Ms Govender if Clause 23 would indicate that it was in consultation with Parliament, or if it should be emphatic that it was the Portfolio Committee on Home Affairs.
Ms Govender replied that if the Committee wanted Clause 23 to refer to the Portfolio Committee, then the OCSLA would give effect to that.
The Chairperson said that the Members would have a further interaction once the C List was drafted.
The Chairperson proposed that there should be preliminary engagements with all stakeholders on the matter that Mr Moepya had cautioned, particularly on the timeframes of the IEC. The Committee had to satisfy the legislative process to enhance the work of the IEC.
He asked the Committee Secretary to brief the Members on its schedule for the Electoral Amendment Bill.
Mr Eddy Mathonsi, Committee Secretary, said that the Committee was scheduled to meet at 2pm tomorrow to receive a briefing from the State Law Advisors on the C List of the Electoral Amendment Bill. On Friday, 10 February, the Committee would meet at 9am to have clause-by-clause deliberations on the Bill, and to adopt the report on the Bill. In other words, the Committee would finalise the Electoral Amendment Bill on Friday.
The meeting was adjourned.
Chabane, Mr MS
Bongo, Adv BT
Modise, Ms M
Mogale, Mr T
Molekwa, Ms MA
Mulder, Mr FJ
Nzuza, Mr NB
Pillay, Mr KB
Roos, Mr AC
Tito, Ms LF
van der Merwe, Ms LL
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.