Electoral Matters A/B: DHA, IEC, DCDT & Parliamentary Legal Advisors response to public submissions (with Minister)

Meeting report

Co-Chairperson Chabane welcomed all those present in the meeting. Thereafter, he explained that the Committee had received a summary of all the written submissions to the Bill, and listened to all the oral submissions made by various organisations and individuals.

Mr Eddie Mathonsi (Committee Secretary) indicated that the Committee would be briefed by PLS, which shared its presentation on the previous day, the IEC and the department, which both sent their presentations earlier in the day, and the DoDCT but it had not yet submitted its presentation.

Co-Chairperson Chabane asked if the department was prepared to make its presentation to the Committee.

Mr Mathonsi confirmed that it was.

Co-Chairperson Chabane proposed that the Committee allow all the presenters to make their presentations, except the outstanding DCDT one, and then Members can reconvene on Tuesday for deliberations. He asked the Committee Secretariat what the implications of Members adopting the Motion of Desirability (MOD) without the presentation of the DCDT.

Mr Mathonsi explained that ordinarily the Committee only has to adopt the MOD when it wants to begin with the deliberations on the content of the Bill.

Co-Chairperson Shaikh suggested that the Committee be taken through the responses by each of the presenters on the public comments made on the Bill, but allow for the DCDT to make its presentation at another time.

Mr Alfred Mmoto (Chief Director at DCDT) said that the input of the DCDT was not substantive and did not need to be deferred to another date.

Mr A Roos (DA) presumed that the DCDT’s submission most likely would not be substantive, and agreed with the Co-Chairperson’s proposed way forward.

Ms L van Der Merwe (IFP) also supported the Co-Chairperson’s proposed way forward, however, she noted that the National Assembly would be sitting from 10:00 until 18:00 on Tuesday.

Mr Mathonsi recommended that the Committee shift its proposed meeting to Monday.

Co-Chairperson Chabane indicated that a final decision on the meeting date would be taken later in the meeting.

Mr Aaron Motsaledi (Minister of Home Affairs) tendered an apology to the Committee and indicated that he would have to leave the meeting by 17:30.

Co-Chairperson noted the apology and then requested that the PLS make its presentation to the Committee.

PLS response to EMAB submissions

Ms Tellana Halley (Parliamentary Legal Advisor at the Constitutional and Legal Service Office) stated that the public participation was insufficient, with the processing of the Bill being rushed. Furthermore, her office believed that the inclusion of unnecessary and controversial changes invalidated the public consultation process and may open the legislation to legal opposition.

• Submissions: Pointed out that the terms ‘independent candidate’ and ‘independent representative’ were unevenly applied in the Bill:
• That the two terms are not included in a number of sections of the Political Party Funding Act (PPFA), namely in the definition of donation and donation in kind, Sections 10, 14, 19 (3) (4) and 23 (2)
  • PLS Response: Argued that the DHA provide clarity if the intention is that a donation in kind will apply to all independent candidates regardless of whether they receive a seat in the NA similar to political parties
• Submissions: Opposition to the calls for allocation to be calculated per seat as it would disadvantage smaller parties and benefit larger ones
  • PLS Response: Substantive amendment as it amends the formula used to allocate funds. Advised that the DHA to provide an explanation for this amendment as this is a policy decision
• Submissions: Clause 26, concerns raised around the powers of the President in determining the upper limits, disclosure limits of donations and the President’s powers to make regulations
  • PLS Response: Viewed it as a substantive amendment that will have to be looked into as its implications may affect the principles of democracy enshrined by the Constitution

(See Presentation)

Following the presentation Co-Chairperson Chabane handed over to the IEC.

Mr Mosotho Moepya (Chairperson of the IEC) highlighted that the IEC and the PLS would have to spend time together to align on certain clauses within the Bill. Afterward, he handed over to the Chief Executive Officer (CEO) of the IEC to make the presentation to the Committee.

IEC response to EMAB submissions

Mr Sy Mamabolo (CEO of the IEC), Mr George Mahlangu (Chief Executive: Political Party Funding) and Masego Sheburi (Deputy CEO: Electoral Operations) took the Committee through the presentation.

Clause 3: Commission agreed with My Vote Counts’ suggestions for the definitions of ‘donation in kind’ and ‘donation in kind’ include independent candidates and representatives

Clause 18: Agreed that the insertion of Section 12A should be amended to ensure that the personal account of an independent be separate from the account used for donations to the independent. Moreover, that Section 12A should be amended to include both independents, who as recipients of donations would both need to account for their income

Clause 26: concerns raised around the powers of the President in determining the upper limits, disclosure limits of donations, and the President’s powers to make regulations. Commission believes this is a substantive amendment and requires further deliberation by the Committee

Section 31B: Unequal signature thresholds. The issue relates to parties who are contesting for the first time will have to fulfill the 15% signature requirement while independents only require 1000 signatures. The Commission has no position on the matter because it is before the Constitutional Court

Clause 29: proposed amendment looks to make sure that party funding is distributed on an equal and proportional basis, in line with Section 236 of the Constitution

• ANC and the Congress of South African Trade Unions (COSATU) view the amendment as consequential in that the current ⅔ and ⅓ formula benefits independents at the expense of parties with proportionally higher representation
• The Commission views the amendment as substantive and recommended that the Committee deliberate further on it

(See Presentation)

Co-Chairperson then handed over to the DoCDT.

DCDT response to EMAB submissions

Mr Tshegofatso Kgarabjang (Acting Chief Director: Legal Services at DCDT) mentioned that the response would focus solely on the implications of the amendments on the Electronic Communications Act (ECA) 36 of 2005.

The department noted that the Bill intends to amend the ECA, to make consequential amendments resulting from the introduction of independent candidates to contest elections of the National Assembly (NA) and provincial legislatures. However, it did not view the amendments as consequential and supported them.

(See Presentation)

Co-Chairperson Shaikh then handed over to the Minister for the presentation.

Minister Motsoaledi indicated that the Bill passed in Parliament was drafted by Adv Steven Budlender because the work was too complex for the department officials there at the time. When the matter was taken to court, Adv Budlender had to ask for permission from the Legal Services Council to allow him to appear in court to defend the Bill – he has since done so. Since he was retiring from his profession he assigned the department with a junior counsel.

All the recordings of the public submissions made on the Bill were provided to the junior counsel for him to assist the department in drawing up a response that would be presented in today’s meeting. However, he was unable to go through the inputs due to other commitments, requiring the department to draft a brief response to the submissions. It anticipated that it would provide a comprehensive response to the Committee next week once the advocate has gone through the submissions.

DHA response to EMAB submissions

Minister Motsoaledi took the Committee through the presentation.

• Clause 29: proposed amendment looks to make sure that party funding is distributed on an equal and proportional basis, in line with Section 236 of the Constitution
  • Argues that with the inclusion of independents, the split should be changed from ⅔ and ⅓ to 90/10
•  Clause 26: Concerns about the powers of the President in determining the upper limits, disclosure limits of donations, and the President’s powers to make regulations
  • Argues that the provisions have been in place for the past five years and have not yet been abused by the President. Also, that he or she can only do so after consultation with political parties

(See Presentation)

Co-Chairperson Chabane noted the Minister’s earlier comments that the department would present a comprehensive summary to the Committee on Monday. As such, he proposed that the Minister not touch on certain aspects of the presentation.

Co-Chairperson Shaikh asked that the department provide detailed responses in due time so that Members would be able to engage on the presentation.

Minister Motsoaledi accepted the proposed way forward. He explained that he believed was supposed to respond because the PLS had sought for the department to respond to the content. Nonetheless, he assured the Committee that the department would take it through a clause-by-clause presentation the following week.

Co-Chairperson Shaikh thanked the presenters for the input they shared with Members and handed the proceedings back to the Co-Chairperson.

Co-Chairperson Chabane asked if Members had any further input on the matter.

Ms van Der Merwe highlighted that some of the clauses in the Bill relating to party funding and the powers of the President, which she viewed as substantive and not consequential, the IFP would not deem it as desirable. She asked if it would not be preferable to defer the MOD until Monday.

Ms M Modise (ANC) supported Ms van Der Merwe’s proposal and added that Members first had to deliberate on the responses to the submissions given by the department, IEC, and PLS.

Adv S Swart (ACDP) asked if Members would be able to pose questions of clarity during the deliberations on Monday.

Co-Chairperson Chabane asked if there were any other outstanding matters.

Mr Mathonsi indicated that there were none.

Co-Chairperson Chabane asked if the department could forward its presentation by the end of the following day.

Mr Moepya asked if the IEC would still be expected to make its presentation on the voter registration weekend that recently took place.

Co-Chairperson Chabane said that the Committee would reschedule the presentation.

Minister Motsoaledi asked if the department would be allowed to submit the presentation document on Sunday.

Co-Chairperson Chabane granted his request.

The meeting was adjourned.