Proposed amendments to Electoral Act, Electoral Commission Act & PPFA (with Ministry)

Meeting report

Opening remarks

The Chairperson said that the Committee had rescheduled and postponed several of its meetings due to the Budget Vote engagements in Parliament, particularly for the Justice, Crime Prevention and Security (JCPS) Cluster.

On 09 May 2023, the Minister presented the Department’s approach to the Political Party Funding Act (PPFA) consequential amendments. The Committee agreed to have further deliberations on the consequential amendments.

Apologies

Mr Eddie Mathonsi, Committee Secretary, noted an apology from Ms A Khanyile (DA) who was attending another committee meeting.

Adoption of minutes

Mr Mathonsi read through the minutes of 18 April 2023, which was a briefing by the Minister on Thabo Bester’s identity.

Mr A Roos (DA) proposed a few corrections to the comments he had made on 18 April, which were included in the minutes. He had further proposed a few changes to the paragraphs detailing the Minister’s response.

The Chairperson said that the minutes should accurately reflect what was said on the record.

Mr Roos said that his corrections were to clarify the interpretation of what the Minister had said.

Adv B Bongo (ANC) suggested that the Committee Secretary should check the record before amending the minutes. He was doubtful of the proposed amendments to the minutes.

The Chairperson said that the minutes of 18 April had previously been presented, but there were certain issues that the Members did not agree on. The Committee Secretary had referred to the recording to ensure that the minutes was accurately captured. The proposed corrections pertained to the comments made by Mr Roos and the Minister’s response.

Mr Roos moved for the adoption of the minutes, with amendments; Ms L van der Merwe (IFP) seconded.

The minutes of 18 April was adopted.

Policy document on proposed consequential amendments to the PPFA to include independent candidates

Mr Adam Salmon, Content Advisor, referred to the policy document on the approach to the PPFA consequential amendments, which the Minister had presented on 09 May 2023. The policy document focused on the PPFA and highlighted the following points:

Overarching principles

• The commitment to transparency in party funding.

• The belief that all parties and independents should get their fair share of public funding.

• Maintaining a link between public representatives and the people.

• International support must be declared and monitored.

• South Africans and global supporters should be encouraged to donate to the Multi-Party Democracy Fund.

• Fixing the legislative environment for independent candidates and political party funding must help to make funding easy, fair, transparent and democratic.

• The amounts should be prescribed in regulations (instead of legislation), to avoid unnecessary changes to the Act.

The policy document detailed the limitations for reporting domestic and international donations. It further highlighted the changes to the formula for the allocation of funds to parties and independent candidates.

The Chairperson said that the Committee ought to consider the policy document as a framework for the consequential amendments.

Comments by Parliamentary Legal Services on the other Acts that required amendments to include independent candidates

Ms Telana Halley-Starkey, Parliamentary Legal Adviser, Constitutional and Legal Services Office (CLSO), said that the Minister’s policy document primarily deals with the PPFA. However, there are other consequential amendments that would need to be made, emanating from the signing into law of the Electoral Amendment Bill.  She pointed out the following consequential amendments:

• Section 5(1)(g) of the Electoral Commission Act 51 of 1996, which deals with party liaisons. This would need to be amended to include independent candidates.

• Sections 1, 52, 56, 57, 58 and 59 of the Electronic Communications Act 36 of 2005. This Act provides a regulatory framework regarding electronic communications and networks and provides equitable treatment of political parties for broadcasting during elections. There is a lack of inclusivity regarding independent candidates. It would therefore need to be amended to bring parity.

• Section 34 of the Financial Management of Parliament and Provincial Legislatures Act 10 of 2009 provides for the support of Members of Parliament and political parties, but it does not include independent candidates. Section 34 of this Act would need to be amended.

Ms Halley-Starkey said that the Electoral Act 73 of 1998 would also need to be amended. The Independent Electoral Commission (IEC) has indicated that there seems to be a problem with how voters would vote from overseas or if they are voting in a region where they are not registered, especially because of the fact that there are two ballot papers for the National Assembly (i.e., a regional ballot paper for political parties and independent candidates; and a national ballot paper for political parties). The IEC will propose an amendment that will address this problem.

The Committee has not yet made a decision regarding whether it will proceed with an Executive Bill or a Committee Bill. The Parliamentary Legal Services are available to provide assistance to the Committee following whatever choice the Committee decides to proceed with.

Discussion

Mr K Pillay (ANC) proposed that the Committee opt for an Executive Bill, especially considering the time. The Minister should be requested to include all consequential amendments. If the Committee were to consider a Committee Bill, it would mean that it would have to do everything from scratch.

He believed that the presentation on the approach to the PPFA consequential amendments was correctly covered.

Mr Roos said that he was struggling to follow the process 100% clearly, because the Committee had a meeting in February, when it was briefed on the options to develop a Committee Bill and an Executive Bill, respectively. The Committee was told that the Executive Bill was estimated to take 18 months, which was way too long. He understood that the Committee Bill was deemed as the better option and that Parliamentary Legal Services would develop a policy document for the Committee to proceed with a Committee Bill.

He asked that Parliamentary Legal Services provide clarity on the process and timelines for a Committee Bill and an Executive Bill, respectively. He questioned whether the Bill would need to be in the form of a General Laws Amendment Bill. He asked about the process of amending Sections 57, 116 and 236 of the Constitution.

The Chairperson told Mr Roos that the Committee had not yet decided whether it would follow the process of a Committee Bill or an Executive Bill. The briefing by Parliamentary Legal Services in February was to provide the Committee with the estimated timeframe and process to develop a Committee Bill and an Executive Bill, respectively.

Adv Bongo said that it appeared as if the process of an Executive Bill was a more advanced option. He believed that the Committee Bill would be a cumbersome process, because of the administration and financial implications.

He supported Mr Pillay’s proposal, that the Committee should opt for an Executive Bill.

He did not think that the Constitution needed to be amended at this point, because the Committee ought to focus on the consequential amendments that were presented by Parliamentary Legal Services.

Ms L van der Merwe (IFP) agreed with Mr Roos. The Committee was advised that the process of a Committee Bill would be the quicker option for dealing with the consequential amendments. However, if Parliamentary Legal Services has not started working on the draft for the Committee Bill, then she agreed that the Executive Bill might be the better option. She would have also been in favour of a General Laws Amendment Bill, as a quicker way of considering all the consequential amendments in one Bill.

She agreed that the Committee did not need to amend the Constitution at this point and that it can be dealt with after the 2024 elections.

She noted that the NA Speaker and the House Chairperson had taken great pride in announcing the success of the Electoral Amendment Bill. The Committee cannot drop the ball now.

She added that she would have engagements within her Caucus about the policy document on the approach to the PPFA consequential amendments. Her Caucus also had engagements about the court action by My Vote Counts, particularly on their proposed changes to the PPFA for more transparency in private funding of political parties.

Ms M Modise (ANC) agreed that the Committee should consider the process of an Executive Bill and that it should be in the form of a General Laws Amendment Bill. She added that the Committee needed to be briefed on the way forward, with clear timeframes.

Minister’s comments

Dr Aaron Motsoaledi, Minister of Home Affairs, said that in the meeting of 09 May 2023, he had presented two documents to the Committee. The first document was a step-by-step guide of the consequential amendments to the sections in the PPFA which were mostly technical amendments. At that point, the drafters continued on the basis that the only consequential amendments were for the PPFA. The Department indicated that it would be amenable to any other consequential amendments emanating from the Electoral Amendment Act.

The second document he presented was the policy approach to the PPFA consequential amendments, which highlighted the overarching principles of what needs to be done. These matters are rather substantive, like the issue of the limits of reporting domestic and international donations. More importantly, the document indicated the changes to the formula for the allocation of funds to parties and independent candidates in Parliament. The policy document proposed that everyone who wins a seat gets 0.25% per seat. In that way, every party or independent candidate will receive their fair share of funds.

Minister Motsoaledi said that he had subsequently learned that there are other consequential amendments.

The amendments to the Electoral Act 73 of 1998, would address the issue of the two ballot papers for people who vote outside of their province. The amendments to the Electoral Commission Act 51 of 1996 is to include independent candidates because independent candidates would also participate in party liaison committees. The amendments to the Electronic Communications Act 36 of 2005, are to ensure that independent candidates will also have media coverage in the same way as political parties when they run their campaigns.

He noted that Mr Roos had pointed out the other potential amendments to Sections 57, 116 and 236 of the Constitution.

Minister Motsoaledi told the Committee that he had called for the amendment of Section 236 of the Constitution two years ago, but lawyers have said that the Constitutional Court judgement did not demand any amendments to the Constitution. He then tried to seek clarity, because Section 236 says “To enhance multi-party democracy, national legislation must provide for the funding of political parties participating in national and provincial legislatures on an equitable and proportional basis”. He said that the lawyers argued that Section 236 of the Constitution did not exclude independent candidates.

He reminded Mr Roos that the Department had written a letter to the Committee prior to its meeting on 09 May 2023 to withdraw a document titled “draft policy document, with IEC comments”, because it was sent to the Committee without the approval from the Ministry. It was specifically withdrawn because the general agreement was that the Constitution did not need to be amended. The only area where the lawyers had a difference in opinion was on Section 236 of the Constitution. The majority of the lawyers said that Section 236 did not need to be amended because it does not specially exclude independent candidates. Some lawyers believed that Section 236 should be amended to clearly include independent candidates, so as to avoid potential litigation.

He said that the parts of the PPFA that need the insertion of “independent candidates” and “independent representatives” have been finalised. The parts that still need to be finalised are the substantive matters that are detailed in the policy document that was presented on 09 May 2023. He informed the Committee that the Department will immediately affect the other consequential amendments to the other pieces of legislation if the Committee agreed.

 Response by Parliamentary Legal Services

Ms Halley-Starkey referred to the question about what Parliamentary Legal Services has done regarding the Committee Bill process. She explained that the Committee has not made a decision on whether to do a Committee Bill or an Executive Bill. In terms of NA Rules 268 and 273(1), the Committee would first have to request permission from the House to draft a Committee Bill. So far, the work of Parliamentary Legal Services was to assist the Committee Secretary and the Content Advisor with the memorandum requesting permission. However, the memorandum would have only been submitted to the Committee if it took the decision to draft a Committee Bill.

She referred to the question of whether the Committee Bill was a quicker process. She replied that if the Committee had made the decision to proceed with a Committee Bill, and been granted permission to draft it, it would have taken Parliamentary Legal Services six weeks to draft the Committee Bill. However, if the Executive has a Bill that is already gazetted earlier than six weeks, then the Executive Bill would be much quicker.

Parliamentary Legal Services was not instructed to provide an opinion on whether the Constitutional amendments were necessary. If the Committee decided that there should be amendments to the Constitution, that would be done in a separate Bill (according to Section 74 of the Constitution).

She said that there is precedent for a General Laws Amendment Bill across departments, as seen with the Anti-Money Laundering and Combating Terrorism Financing Amendment Bill.

Comments by IEC

Mr Mosotho Moepya, Chairperson, IEC, said that he had taken note of the discussion. The IEC agreed on the issues that have been raised. There will be further engagements on the issues at the appropriate time.

Chairperson’s comments

The Chairperson said that it was clear that the process of an Executive Bill was already underway. He was pleased that Parliamentary Legal Services had reaffirmed that the process of an Executive Bill might take less time than drafting a Committee Bill. He accepted the Committee’s view that it must proceed with the process of an Executive Bill.

All stakeholders must assist to ensure that the process is concluded timeously. He cautioned that the process must be mindful of the work of the IEC.

The IEC will address the Committee in the next meeting to point out the consequential amendments that the Committee must attend to.

He noted Ms van der Merwe’s comment, that the Members were still engaging on the policy document on the approach to the PPFA consequential amendments within their Caucuses.

The Committee Secretary will request permission for the Committee to meet on Tuesdays and Fridays, to urgently conclude this process.

Further Discussion

The Chairperson asked if the Members had any further input on the way forward.

Mr Roos supported the decision of an Executive Bill if there was a commitment that it could be drafted within six weeks. It should be in the form of a General Laws Amendment Bill, that would cover all the consequential amendments.

He requested that Parliamentary Legal Service provide a legal opinion on whether the Constitutional amendments were necessary.

Ms van der Merwe said that it seemed as if the Committee supported the decision of an Executive Bill if the Minister’s team could draft the Bill within six weeks. She asked for clarity on whether the Minister would proceed with a General Laws Amendment Bill to include the amendments to the Electronic Communications Act, or if the Committee would need to refer these amendments to the Portfolio Committee on Communications and Digital Technologies.

The Chairperson noted Mr Roos’s request. He requested Parliamentary Legal Services to provide a legal opinion in the next meeting.

Minister Motsoaledi said that there would be further consultations on the decision of whether the Constitutional amendments were necessary. One of the reasons why he withdrew the document titled “draft policy document, with IEC comments”, was because he did not agree that Section 57 of the Constitution excluded independent candidates.

Section 57(2)(b) says “... the participation in the proceedings of the Assembly and its committees of minority parties represented in the Assembly, in a manner consistent with democracy”. The word “minority” did not necessarily mean that it excluded independent candidates.

Section 57(2)(c) says “... financial and administrative assistance to each party represented in the Assembly in proportion to its representation, to enable the party and its leader to perform their functions in the Assembly effectively”. Minister Motsoaledi said that when people sit together in negotiations it is called a “conference of the parties”, it does not exclusively refer to political parties.

Section 57(2)(d) says “... the recognition of the leader of the largest opposition party in the Assembly as the Leader of the Opposition”. Minister Motsoaledi said that this did not need to be amended because there is no way that an independent candidate would ever be the largest opposition in Parliament.

Minister Motsoaledi reiterated that independent candidates were not excluded from Section 57, because they were not political parties, but they are regarded as “parties”. Independent candidates would be parties to the deliberations in the National Assembly.

He agreed that the Department would need guidance on the consequential amendments to the Electronic Communications Act.

He informed the Committee that two organisations have made court applications regarding this process. My Vote Counts made a court application to challenge the PPFA. The Independent Candidate Association made a court application to challenge the Electoral Amendment Act. He understood that the Independent Candidate Association is requesting an increase of the regional seats to 350 and a corresponding decrease of the compensatory seats to 50.

The Chairperson said that it appeared as if the consequential amendments to the Electronic Communications Act would need engagements with the Independent Communications Authority of South Africa (ICASA).

Mr Moepya said that the IEC has a meeting scheduled with ICASA. The IEC understood that there are regulations that must incorporate independent candidates.

The Chairperson confirmed that the Committee has made the decision to proceed with the Executive Bill. The Committee would be provided with further clarity on whether the amendments to the Constitution would be necessary. The Committee will consider whether it will adopt the policy document on the approach to the consequential amendments in the next meeting.

He requested the Minister to provide the Committee with the timeframe for the process of the Executive Bill.

Minister Motsoaledi replied that Parliamentary Legal Services might have estimated the timeframes, especially considering that the amendments were purely insertions. However, the estimated timeframes for the approach to the PPFA consequential amendments are unclear, because the Members were given time to discuss the policy document within their Caucuses. It is uncertain what the different political parties might say about the principles outlined in the policy document. The timeframes can only be outlined after the political parties have made their input.

Mr Mathonsi said that he received a memorandum from the House Chairperson indicating that he could request permission for the days that the Committee intended to meet during the constituency period. He would need to know when the Bill would be tabled in Parliament to determine the programme for the processing of the Bill.

The Chairperson said that he would have further discussions with the Committee Secretary and Content Advisor regarding administrative matters.

The meeting was adjourned.