Electoral Matters A/B: further DHA response to public submissions & deliberations (with Minister)

Meeting report

Co-Chairperson Chabane welcomed all those who were present in the meeting.

Thereafter, he explained that the Committee had to reschedule the meeting from Monday to today to allow the DHA to prepare its presentation document. Following the presentation, Members would be permitted to pose questions on the presentation.

He then asked if any apologies were recorded.

Mr Eddie Mathonsi (Portfolio Committee Secretary) indicated that the Committee had received apologies from the Deputy Minister and Ms Legwase, who said she had to leave the meeting at 11:00.

Mr Gurshwyn Dixon (Select Committee Secretary) mentioned that the Committee received apologies from Mr Dangor and Mr Badenhorst.

Ms Janet Love (Commissioner at the IEC) tendered an apology from the Chairperson of the Commission, Mr Mosotho Moepya.

Mr Aaron Motsoaledi (Minister of Home Affairs) confirmed that the Deputy Minister would not be present at the meeting as he was attending to a special matter.

Final DoHA responses to the public submissions on the EMAB

Adv Phelelani Khumalo (Head of Legal Services at DHA) took the Committee through the presentation.

• Clause 3: The DHA agreed with My Vote Counts (MVC) that the definitions of a donation in kind should be amended to include independent candidates and representatives
• Clause 14: The Department agreed with MVC that independent candidates and representatives must be included
• Clause 18: It also agreed with MVC that both independent candidates and independent representatives must be required to keep a separate account and to account for their income
• Clauses 26 and 29 (g) (determination of upper limit) 29 (h) (determination of disclosure limit): Multiple stakeholders, including the Inclusive Society Institute and MVC, argued that the President should not be allowed to have extensive and/or significant powers to change the core provisions of the PPFA in the absence of rigorous independent oversight. There is a conflict of interest in that the President, as a member of a political party, would be like an employee determining their own salary and given a blank cheque. Instead, they proposed that Parliament should retain its power to determine when the regulations should be amended, and the different thresholds
  • To address these concerns the department proposed returning to the original formulation which states that the President must act on a resolution by the National Assembly when making the regulations, and must consider the amount of money previously appropriated by acts of Parliament for political representatives within the previous 5 financial years, the effects of inflation on the value of money over time and the costs associated with participating as a political party or independent in elections and democratic process in the country
• Clause 29 (b): The department disagreed with MVC that the reconfiguration of the allocation formula is not a consequential amendment and therefore should not be included in the Bill. Moreover, it argued that the model had to be changed from the two-thirds and one-third split because of the introduction of independents to a 90/10 split, so as to ensure the proportional and equitable allocation of funds, as required by Section 236 of the Constitution

Minister Motsoaledi explained that the Electoral Amendment Act (EAA) and the Bill were drafted by senior counsel Adv Steven Budlender. During discussions with the Minister, Adv Budlender questioned what the purpose of Clause 10 of the PPFA was, with subsection 1 stating ‘No person or entity may deliver a donation to a member of a political party other than for party political purposes’, and subsection 2 ‘A member of a political party may only receive a donation contemplated in subsection 1, on behalf of the party’. To him, it seemed that it would only criminalise Members of Parliament.

Moreover, both Adv Budlender and the Minister wondered what type of donation was being referred to by the Clause as members of political parties do receive donations, which they are required to declare by law. In addition, they considered whether donations in kind are covered. After the deliberations, they concluded that Section 10 of the PPFA did not serve any legitimate purpose and proposed its deletion.

Whilst drafting the legislation the department looked into whether other jurisdictions forbade members of political parties from receiving donations.

Another matter considered by both the Minister and Adv Budlender was the inclusion of the recommendations from the Zondo Commission Report to prevent instances where individuals or entities pay donations to members of political parties with the view of receiving a tender. He asked the Committee if this were to be included, whether it would preclude a legal entity or individual from working with the government due to them donating to a member of a political party.

Afterwards, he reminded Members that the department was taken to court because certain individuals believed that the EAA was unconstitutional as it did not set out how independent candidates could compete in elections. In its legal papers, the department quoted Sections 46 (d) and 105 (d) which state that the allocation of parliamentary seats should end up as proportional representation. However, the judgement indicated that complete proportionality was not possible and as such, something close to it would be sufficient.

Section 236 of the Constitution speaks to the funding of political parties participating in provincial and national legislatures on an equitable and proportional basis, and formulas have been created to do so, he said. However, this has been changed with the inclusion of independents – which the department argues goes against the principle of proportionality and equitability. Hence, in a meeting with the Committee, the Minister stated that the judgement to include independents was impossible without amending the Constitution.

Nevertheless, after some deliberation the department resolved on a 90/10 split for the funding of political parties and independents, moving away from the previous 67/33 as it grossly distorted proportionality and did not provide equity, even though the latter will receive twice the amount of political parties. The proposed formula to provide funds based on a 0.25% allocation of a seat in the legislature meets the proportionality target but not equity.

The department proposed that before the President reaches his decision he must collaborate with Parliament on how much the fiscus must contribute to political parties – the PPFA also focuses on the regulation of private funding of political parties, one is a threshold and the second is the publication of donors who contribute over a certain amount. There would be no need for upper and lower limits if the fiscus provided enough funds, he stressed. Two, what the rate of inflation is at a particular point. Three, how much political parties spend on average to run their affairs in order to enhance multi-party democracy, and during elections, should the parties be required to make a submission to Parliament on how much they require.

Regarding the PLS proposal that Section 27 (2)(c) and (b) be amended to make the requirement of signatures for independents and political parties equitable, he highlighted that as the matter is currently before the courts the department thought there should be no amendment to it for now. Furthermore, it could not provide any comments on it. Both the IEC and the department have provided explanatory affidavits on the issue, he added.

Co-Chairperson Chabane requested that Members study the department’s presentation and save their questions for next week’s deliberations.

Thereafter, he opened the floor for discussion.

Discussion

Mr B Pillay (ANC) mentioned that the presentation gave the Committee a clear understanding of the proposed amendments. All that remained was for Members to resolve on the way forward.

Ms L van Der Merwe (IFP) was pleased that there was agreement on some of the proposed amendments to the Bill.

She cautioned the Committee from amending the funding model before allowing further deliberations, as the one currently being proposed would have a negative impact on smaller political parties, especially if the Minister’s suggestion that parties be funded from the fiscus is implemented. In addition, she felt that the argument advanced for the department to propose the 90/10 funding allocation – due to the introduction of independent candidates – was premature as no one knows how many of them will make it to Parliament.

Furthermore, unlike the Minister, she believed that this amendment was substantive.

Adv S Swart (ACDP) indicated that the ACDP too was deeply concerned by the change in the funding model to a 90/10 allocation. During the deliberations on the PPFA Members advanced the 67/33 model because they believed it to be equitable and proportional, thus strengthening multi-party democracy. Moreover, he reminded the Committee that the Multi-Party Democracy Fund (MPDF) was never considered before 2018, meaning that the formula will have an impact on private funding to political parties.

Parliament approved a R300 million adjustment allocation, and the National Council of Provinces (NCOP) stipulated that the Minister must indicate, by the middle of February, what the rollover would be assigned to.

He too believed that this proposed change was a substantive amendment.

Mr A Roos (DA) asked if and how the definition of an independent representative to mean an independent candidate who is a member of the National Assembly or provincial legislature would apply to local councillors. If it did not apply, he asked if local councillors were covered in another act.

The amendment, he argued, was substantive because it sought to change the numbers involved. It would only be consequential if the amendment referred to how the formula applied to the split between parties and independents.

Regarding Clause 9 of the Bill (the use of funds allocated and prohibition on personal use for litigation costs) the DA argued that the purpose of this clause was to prevent independents from using their allocation of the MPDF to defend their personal legal battles not related to political office. As such, the DA agreed with the proposed amendment to remove ‘political party’ from the Bill.

Touching on Clause 14 (prohibition on donations to members of a political party) he stated that donations to these members could influence their actions, but he also noted the Minister’s concerns about how to regulate gifts.

On the reporting obligations for parties to account, he remarked that the DA supported the recommendation made by the DHA.

Referring to Clause 24, he said the DA agreed that there was no legal justification to exclude independent candidates. This clause makes it a criminal offence for a member of a political party or independent to receive a donation from an individual, but it does not include an entity. He asked why entities were not included in this.

The ANC, he pointed out, made a submission to the PPFA hearings in August 2017 where it stated that “Additional resources should be allocated to the smallest parties in order to support political diversity and prevent the system favouring incumbents. Consideration should also be given to means that would provide support for new entrants, the party system and independent candidates not affiliated to a political party.” As such, it was not true that the allocation did not envisage independents. He asked the department what circumstances caused the change in the policy, besides the fact that the ANC feels it should access more money from the MPDF.

To end off, he pleaded with the Chairperson to limit the amount of time the department has to make a presentation in future meetings, as Members are not given enough time to deliberate on matters.

Ms M Modise (ANC) proposed that Members be given enough time next week during the meeting to deliberate on the submissions made on the Bill.

Mr T Dodovu (ANC, North West) pointed out that Parliament had to finalise the process as soon as possible to give the IEC enough time to prepare for the elections.

While he understood the concerns around the change to the funding model from two-thirds to 90/10, he wondered why stakeholders viewed it as disrupting proportionality and equity.

Adv B Bongo (ANC) agreed that the Bill had to be finalised swiftly to ensure that elections could take place between May and August. In addition, he proposed that the funding formula be debated further in next week’s planned meeting. He too echoed the calls for the Bill to be processed swiftly.

Co-Chairperson Chabane felt that Mr Roos’ concern about Members not being given enough time to deliberate on the Bill was misplaced. Having said that, he asked for the PLS, DHA and IEC to provide responses to the questions and comments.

Ms Sueanne Isaac (Parliamentary Legal Advisor) confirmed that councillors are not included in the PPFA.

Co-Chairperson Chabane thought that both the IEC and PLS had responses to the questions posed.

Ms Isaac explained that the two met on Saturday to clarify issues raised in their presentations during the previous meeting.

Co-Chairperson Chabane remarked that the Committee would have to meet with the PLS after the conclusion of the meeting.

Ms Love confirmed that local government is not included in the PPFA. Also, she told Members that the IEC and PLS reached an agreement on many of the issues discussed during the meeting on Saturday relating to the proposed amendments to the Bill.

The Commission, she stressed, could not express a view on what funding formula should be utilised and will abide by the decision taken by Parliament on the matter.

Co-Chairperson Chabane noted the hand of Mr Adam Salmon and asked if he was an official from either the IEC or DCDT.

Mr Adam Salmon (Committee Advisor) stated that he was not an official of either and had only raised his hand to indicate that the DHA had left out certain issues which the Committee had to consider.

Minister Motsoaledi mentioned that he would have to provide responses to the comments made by Members on the presentation.

The formula model used was scientific in its method and considered a number of different permutations, he assured the Committee.

While he acknowledged that the 67/33 split was deliberated and agreed upon by political parties, he reminded Members that this took place before the Constitutional Court judgement to include independents.

In response to the comment that the proposed change in the formula was actually a substantive and not consequential amendment, he said the department believed it to be consequential because the formula was enacted at a time when there were no independents.

On what circumstances caused the change in the policy, he hoped that Mr Roos had not implied that the ANC changed the policy out of its own self-interest. The 67/33 formula was changed, he continued, because it was not in line with proportional representation and equity in terms of Section 236 of the Constitution. He asked those who disagreed with it to provide alternative formulas.

He took issue with the suggestion that the Chairperson reduce the presentation time of the DHA to give Members more time to deliberate during meetings, as he felt that Members are given enough time in each meeting to deliberate on matters.

Nevertheless, he urged Members to consider the department’s presentation thoroughly.

Mr Salmon pointed out that the Committee had not taken a decision on 3 clauses: Clauses, 14, 19 and 31.

Mr Mathonsi informed the Committee that it would have to consider its motion of desirability (MOD) to proceed with the Bill or not.

Co-Chairperson Chabane said that the majority of Members sought to proceed with deliberations on the Bill. Nonetheless, he invited Members to consider the MOD.

Mr Pillay moved to adopt the MOD.

Ms Modise seconded the mover.

As no objections were noted the MOD was duly adopted.

Mr Mathonsi then took the Committee through its draft programme.

Following that Co-Chairperson Chabane thanked all those present for their contribution to the meeting,

The meeting was adjourned.