Electoral Commission Amendment Bill: Dr Lotriet (DA) Briefing; with Minister

Meeting report

Opening Remarks by the Chairperson

The Chairperson greeted all Members and guests at the Committee meeting. He said that the Committee had postponed the presentation due to the ill health of Dr A Lotriet (DA), who is still in recovery. As such, she requested that her video remain off for the duration of the meeting.

The Chairperson took a moment to acknowledge the current situation unfolding in Palestine and expressed his support of the Presidency’s solidarity with Palestinians.

The Committee Secretary noted that there were no apologies received. He acknowledged the attendance of the Minister, Adv Charmaine van der Merwe from the Parliamentary Legal Services, and the guest delegates from the Independent Electoral Commission (IEC) and the Department of Home Affairs. 

Briefing on the Electoral Commission Amendment Bill [B15 – 2023] – Private Membe’s Bill

Dr Annelie Lotriet (DA) thanked the Committee for the opportunity to present her Private Member’s Bill. She began by noting that the Electoral Commission Amendment Bill was first introduced to the National Assembly on 21 June 2023. The primary objective for its creation is to amend the Electoral Commission Act (1996), to clarify the fact that the President may declare a national referendum.

Additionally, the Bill aims to justify the fact that a Premier of any province holds the power to call a provincial referendum within their relevant province.

Lastly, it also aims to repeal the Referendums Act of 1983.

The Electoral Commission Act, 1996 (“the Act”), currently only allows the President of the Republic to call a national referendum. The Act makes no provision for a Premier of a province to call for a referendum in their respective provinces. The Constitution of South Africa, section 127(2)(f) empowers a Premier to call for a referendum in their province in accordance with national legislation. As mentioned above, there is no national legislation which currently allows for this to occur. The 1996 Act therefore fails to comply with the Constitution by giving effect to the Premier’s powers and functions. The Private Member’s Bill thus simply aims to give effect to what is already prescribed in the Constitution.

The Private Member’s Bill has been introduced to give effect to the provisions of the Constitution which gives effect to the powers and functions of a Premier. Referendums are useful to ascertain the will of the residents of a particular province on key items or decisions. The ability to call a referendum is not a new phenomenon and is already contained within the Constitution. A decision on the desirability of the Bill should be based on the spirit of the Constitution and the original lawmakers who designed our Constitution at the advent of our democracy.

(Refer to presentation attached for the provisions of the Bill).

Discussion

The Chairperson thanked Dr Lotriet for her summary of the Bill and opened the floor for comments and questions. He reminded Members that the Committee will be inviting the IEC and the Parliamentary Legal Services to join a meeting at a later date to comment on the Private Member’s Bill. Only then will the Committee deliberate upon the issues brought forward.

Ms A Khanyile (DA) thanked Dr Lotriet for the presentation and asked which stakeholders were consulted and what feedback was obtained.

Mr K Pillay (ANC) voiced his appreciation for the brief presentation. Upon looking through Government Gazette 8894, he asked whether this Bill would seek to amend the Gazette and the Act. Secondly, he questioned the rationale behind the idea to grant this power to the Premiers. He sought clarity as to why this call was being motivated and asked why this power should not lie solely with the President.

Ms L van der Merwe (IFP) asserted that any legislation that could strengthen the public’s ability to participate in governance processes is of increasing importance. Within the current context of South Africa, there is evidence of voter apathy where the public no longer feels connected to politicians and the trust between the two has deteriorated. Possessing the ability to have access to mechanisms which assist towards engaging with the society is important. She said the proposal is sound and committed to taking it to her caucus, where it will be further discussed. She asked whether there were specific topics identified that could be put to a vote in specific provinces.

Ms T Legwase (ANC) expressed her agreement with the sentiments shared by Ms van der Merwe. She asked why the amendment of this specific Bill is of such importance over the others brought forward that has still not been processed.

Mr A Roos (DA) said that. in accordance with Section 127(2)(f) of the Constitution, the Premier of a province is responsible for calling a referendum in line with national legislation. As such, he does not believe that this amendment is contentious in anyway and believes Members of the Committee should support it.

Mr T Mogale (EFF) questioned the motivation behind this specific Bill and questioned what it is that Dr Lotriet seeks to achieve through its implementation. He spoke on the movement taking place in the Western Cape, which is calling for the province’s independence from the Republic. According to Mr Mogale, he believes that the motivation for this Bill is to assist the DA’s efforts towards allowing the Western Cape to become an independent state.

Adv. B Bongo (ANC) voiced his appreciation for the presentation and argued that the Private Member’s Bill would provide challenges such as financial implications for provinces. He argued that, if these matters are left to the executive level of government, then these challenges will not exist.

The Chairperson noted that these referendums must be facilitated by the IEC. He asked about their financial situation due to the current complications they are facing.

Responses from Dr Lotriet

Responding to the queries on feedback, she explained that, upon consultation with members of the public, they did not receive any significant feedback that could impact the Bill. Further consultations will be in the hands of the Committee and its Members.

On the matter of the rationale behind the Bill, she explained that it is not to assist with “agendas” for any party but rather to assist with legal challenges government might face. It is necessary for the Bill to support all legislation stipulated within the Constitution. Thus, there are no alternative motives behind its creation. Additionally, the Bill has no financial implications for the state. It simply gives effect to the requirements indicated in Section 127 of the Constitution. Any costs associated with the referendum or as a result of this Bill will need to be considered upon its own facts and circumstances.

She thanked the Members who support the Bill and expressed her hope that the Committee will find the Bill desirable.

The Committee considered and adopted minutes of previous meetings.

The meeting was adjourned.