Electoral Amendment Bill: consideration

Meeting report

Opening remarks

The Chairperson welcomed the Members and all stakeholders, and said that the meeting was for the Committee to be briefed on the C List of the Electoral Amendment Bill, for the purpose of adoption.

He asked for guidance on whether the State Law Advisor would read through all of the clauses that the Committee had already adopted, or if the Committee would be briefed only on the two recently amended issues. 

Ms Sarah Govender, Senior State Law Advisor, Office of the Chief State Law Advisor (OCSLA), replied that the OCSLA would be in the position to read through the changes that were made during yesterday’s meeting, but if the Committee required the entire C list to be read into record, the OCSLA would also be in the position to do that. However, it was understood that subject to the amendments made at yesterday's meeting, the other clauses that were contained in the list of proposed amendments had been read. The Committee would guide the OCSLA in this regard.

The Chairperson reiterated that the other clauses had already been read into record and adopted. He sought guidance on whether the State Law Advisor should just read through the amended clauses.

Mr A Roos (DA) agreed.

Adv B Bongo (ANC) seconded, on the basis that the State Law Advisors would read through the Bill clause-by-clause on Friday.

Briefing by State Law Advisors on the C List of the Electoral Amendment Bill

Ms Govender referred to the proposed amendments contained in the C list. She read through the provisions which had been amended, particularly on the signature requirement (Clause 3 and Clause 6) and the Electoral Reform Consultation Panel (Clause 23).

(See document attached for details)

She said that the OCSLA had considered the wording proposed by the Committee at yesterday’s meeting, regarding the amendments to Clause 23. The Parliamentary Legal Service would be in a better position to explain the parliamentary prescripts and the legal considerations which had informed the wording in the list of amendments.

Parliamentary Legal Service Input

Ms Telana Halley-Starkey, Parliamentary Legal Advisor, Constitutional and Legal Services Office (CLSO), offered the Committee an explanation as to why Clause 23(9)(b) had been drafted in such a way.

She said that the amendment to Clause 23(9)(b) read that to establish the Panel, the Minister would appoint the nine members to the Panel in consultation with the Independent Electoral Commission (IEC) and “after approval by the National Assembly.” The amendment reflected the resolution that the Committee had made in yesterday’s meeting, that the Minister must establish the Panel, and that all the administrative aspects regarding the Panel should be assigned to the Executive. However, due to the extensive work, the Committee felt that it should be actively involved in appointing the Panel.

She said the amendment had been drafted according to a number of legal and drafting principles. The amendment itself could not provide for “in consultation with Parliament,” due to the constitutionality of such a provision. The Executive and the legislature were two separate entities of government. The “in consultation” part could infringe on the separation of powers. This could further lead to stalemates from both entities. It was therefore proposed that the sentence should read “in consultation with the Commission, and after approval by the National Assembly.”

The amendment could not provide for “after the approval of Parliament,” because Parliament contained two Houses -- the National Assembly and the National Council of Provinces (NCOP) -- so the amendment had to be specific.

The amendment did not state “after approval by the Portfolio Committee,” because the Portfolio Committee did not take decisions per se -- it made recommendations to the National Assembly. The National Assembly would then approve those recommendations. Legal support for this amendment could be found in interpreting Section 53 and Section 57 of the Constitution. The Portfolio Committee was an extension of the House.

Discussion

Mr Roos said that the C list had fairly represented what the Committee had agreed on yesterday. He was happy with the changes.

Mr K Pillay (ANC) said that the C list was a true reflection of what the Committee had deliberated on. All of the amendments, as recorded, were correct.

Ms M Molekwa (ANC) agreed with Mr Pillay.

Mr T Mogale (EFF) said that the views of the EFF remained the same as those he had indicated at yesterday’s meeting.

Ms M Modise (ANC) said that the amendments that had been presented were correct.

Adv Bongo said that the legal team had done a great job aligning what the Committee had decided. He was happy with the way that the amendments had been worded.

Consideration and adoption of the C List of the Electoral Amendment Bill

Adv Bongo moved for the adoption of the C list. Ms Molekwa seconded.

Mr Mogale noted the objection of the EFF.

Mr Roos said that the DA agreed to the amendments that had been presented today, but rejected the C list as a whole.

The Chairperson noted the objections of the EFF and the DA.

Closing remarks

The Chairperson acknowledged the presentation on the C list, which reflected the Committee’s decisions on the amendments. He commended the Members for agreeing on particular issues and also expressing different views. He asked the Committee Secretary to inform the Committee of the process to follow.

Mr Eddy Mathonsi, Committee Secretary, said that the Committee would convene on Friday to adopt the D list and the Committee Report on the Electoral Amendment Bill.

The Chairperson asked the Committee Secretary to schedule a session for tomorrow morning with the legal team of the IEC, the Department of Home Affairs (DHA), the Parliamentary Legal Service and the State Law Advisors, to deal with the matter that the chairperson of the IEC had raised during yesterday’s meeting.

Mr Mosotho Moepya, Chairperson: IEC, appreciated the Chairperson’s request. He felt it would be useful to look into the concerns raised yesterday.

Mr Tommy Makhode, Director-General: DHA, agreed to the Chairperson’s request.

Ms Halley-Starkey agreed. She said that the CLSO was in communication with the IEC and the DHA.

Ms Govender said that the OCSLA would avail itself for the session.

The Chairperson thanked the Members for accepting the request to meet.

The meeting was adjourned.