Briefing by IEC on readiness for National and Provincial Elections 2024; Briefing by Minister on Marriage Bill

Meeting report

The Chairperson welcomed everyone and went through the agenda for the meeting. He asked Mr Eddie Mathonsi, Secretary, Portfolio Committee of Home Affairs, to proceed with the apologies, and asked the Minister of Home Affairs, Dr Aaron Motsoaledi, to provide opening remarks.

Mr Mathonsi noted one apology.

Minister Motsoaledi advised that the Deputy Minister of Home Affairs, Mr Njabulo Nzuza, may not be present in the meeting as he was presented before another Portfolio Committee at 10:00. He handed over to Mr Livhuwani Makhode, Director-General (DG), Department of Home Affairs (DHA) to welcome his team and note any further apologies.

The members of Mr Makhode’s team who were present in the meeting were introduced, as were the representatives from Parliamentary Legal Services and the Independent Electoral Commission (IEC).

Briefing by Independent Electoral Commission

Mr Masego Sheburi, Deputy Chief Executive Officer (CEO): Electoral Operations, IEC, briefed the Committee. He provided an update on the preparations for elections. He stated that the Electoral Matters Amendment Bill [B42-2023] (the Bill) was currently before the National Council of Provinces (NCOP). The Bill was the last parliamentary hurdle in preparation for independent candidates to stand in the May polls. It made provision for these independent candidates to declare their funding sources just as political parties were required to do. The recruitment of approximately 200 000 voting staff was underway. The training of presiding officers, deputy presiding officers and voters’ roll officers would commence this month. 

Face-to-face voter education in various communities would incorporate visuals, such as poster-size depictions of what the ballot paper would look like. They were focused on a double-column ballot paper, which was the first of its kind in the country. During the voter education, the real political parties contesting would not be displayed on the ballot paper. In previous years, a sample ballot paper had had the actual political parties contesting, and the sample ballot had ended up being misused.

The procurement process for electoral materials had been finalised and ballot paper printing capacity was in place and awaited the finalisation of the candidate nomination process. Printing would happen between 10 April and 8 May 2024. The ballet paper flowed in alphabetical order. Independent candidates would be joined in the ballot among the political parties alphabetically. This would be the case for both regional and provincial ballots. The national compensatory ballot would have political parties, but in the order that had been indicated. There would be a secondary draw in the order of the ballot to separate those political parties with similar logos, acronyms, and even colour schemes. This would be explained during the draw. They would use all social media and digital platforms on the ballot, as well as print, television, and radio.

(See attached presentation for further details)

Discussion

Mr K Pillay (ANC) congratulated the IEC on the work they had done. He reiterated that the Members had full confidence in the IEC to run free and fair elections. He appreciated the presentation, its timelines, timetable, and all the processes being followed. He asked if the IEC had any indication of how many independent candidates may have registered for this coming election. He wished the IEC well in the election.

Ms L van der Merwe (IFP) thanked the IEC for their presentation and congratulated them on the work that they were doing. She expressed her full confidence in the IEC as they were approaching elections. After visiting many voting stations during the voter registration weekend with the leadership of her party, for the most part, operations were going smoothly except for one or two stations where the IEC staff were unhelpful and rude. This encounter has been highlighted and brought to the attention of the IEC. There was a need for well-trained and fit-for-purpose electoral staff who were apolitical when there were elections.

She referred to the code of conduct in slide seven of the presentation, and stated that serious threats of violence were being made against the IEC which had emerged from a new political party. She asked what the IEC was planning to do, as threats against the IEC were against the code of conduct. Was the IEC planning to take any action against the new political party? Political parties that breached the code could either face legal action or they could be fined. Regarding voter education, it was important in these elections to intensify voter education given the new voting regime with three ballots. Would the face-to-face community interaction be largely focused in rural areas, because those areas should not be ignored?

Regarding the credibility of the IEC, the Committee had been following the issue of the staff member who had been dismissed for leaking information. This issue went to the very heart of the credibility of the IEC. What internal control mechanisms was the IEC putting in place to ensure this did not happen again? On the topic of the Bill, some parties had indicated that they might consider taking legal action and there was a press conference this morning on the issue. Did the possible legal action worry the IEC at all in terms of their preparation for the elections?

Mr A Roos (DA) explained that the IEC website spoke about how observers, both domestic and internationally, played a crucial role in ensuring that the elections were transparent, free, and fair. It was also important that voters, political parties, and candidates accepted the outcome. Ms van der Merwe had pointed out the outright and publicised threats to the elections by certain political parties. Given that the IEC website talked about the importance of observers, how these observers build up public confidence in the honesty of the electoral process and how they gave an electoral management body like the IEC invaluable advice and support, was there not a need to have as many electoral observers as possible?

In the IEC’s criteria for presiding and deputy presiding officers, it provided that in the last five years, the person must not have been elected to office in an organisation that had party affiliations or aims. Given that the Congress of South African Trade Unions (COSATU) was part of the tripartite alliance, did this include labour unions affiliated with COSATU? During the election weekend, there was an inconsistency in the length of time the electoral officials waited to get a signal before they took a registration. Had the IEC set a cut-off time by which an official was supposed to wait for a signal before they continued? In Tshwane, for instance, there was one case where the officials waited for up to twenty minutes for a signal. This kind of situation would bring voting to a standstill on election day.

Regarding redesigning the results process, how would the IEC ensure that presiding officers did not deny party agents the right to take party photos of results slips? What measures would prevent a presiding officer from filing a result slip that was changed after the presiding officer had left the voting station after the count? Members had heard about the impact of misinformation and artificial intelligence (AI) as one of the biggest threats to democracy in the world now. If a candidate or political party asked the IEC to investigate misinformation and the inappropriate use of AI around these elections that went against the code of conduct, what measures did the IEC have to deal with complaints of this nature and what was the response time to the complaints that we can expect once these complaints had been reported? How would the IEC be communicating on these issues?

Mr T Mogale (EFF) commended the IEC on the good work they were doing. He observed that the IEC should not be pressured to seek the assistance of any foreign observers in light of certain political parties requesting foreign assistance for the IEC. On the finalisation of the appointment and training of staff, he asked when the IEC would finalise the appointment of staff. When would the training start and how long would the training process take? It was important that staff had a unified understanding and interpretation of legislation.

He noted that there had been challenges related to access to voting stations, particularly in the rural and farming areas. Many farmers did not allow campaigners to pitch their tents close by to campaign for the coming elections. One farm in particular in the Free State had a racist farmer who refused to allow campaigning staff to do their work. How did the IEC plan to deal with some of these issues? If a person availed their property to become a voting station by extension, they should not have a problem when political parties pitched up their gazebos and tents next to their properties as voters went in and went out.

On the issue of voterturnout, he noted that the presentation indicated that the voter turnout had been consistently declining. The 2021 voter turnout was the lowest there had been. The introduction of section 24A of the Electoral Act 73 of 1998 (the Act) would potentially deny several people the opportunity to vote on voting day. Was section 24A of the Act inadvertently contributing to a lower voter turnout? How many campaigns had the IEC done regarding voter education?

Ms M Modise (ANC) expressed her concerns about the conditions during the voting day. She noted that 29 May would be during the winter season, and the voting on that day would take place during the country’s loadshedding crisis. Had the IEC prepared all stations with capacity to deal with loadshedding so that systems were not interrupted, and voting was not delayed? Since the ballot paper would be long, it was likely that each voter would take a while to cast their vote in the voting booth. Had the IEC considered extending the voting day hours to ensure that voters had sufficient time to cast their vote? Would the process of face-to-face voter education be conducted across all wards in the country so that it reaches a broader population? How long would the face-to-face voter education run for? Was the IEC going to be able to print leaflets that would reach communities at large so that voters would get a feel of how the ballot would look?

The Chairperson stated that on 3 and 4 March 2024, there had been logistical issues in the North West. If these issues had not been remedied, they may jeopardise the IEC’s readiness during the provincial and national elections on 29 May 2024. How was the IEC interacting and collaborating with the security cluster because this was an important area that needed to be dealt with? The Committee should be provided with a list of emerging threats. Another emerging tendency that needed urgent attention had to do with certain political parties inviting foreign observers outside of the framework directed by the IEC. How did IEC feel about this situation?

Ms A Khanyile (DA) expressed that she had full confidence in the work being done by the IEC and noted that having political parties invite observers from other countries was not an abnormal practice. Members of Parliament from South Africa had also been delegated to other countries to observe their elections. She asked how many independent candidates had been registered for the 2024 election. How many new political parties were contesting for elections this year? This would give the Committee an indication of how long the ballot paper would be. During the presentation, there was mention of voter education through social media as well as on television platforms, but members of the public had been calling for clarity on the three-ballot paper. What measures had the IEC put in place to educate voters on the three ballot papers?

Ms T Legwase (ANC) congratulated the IEC on the work they had been continuously doing. Regarding the recruitment strategy, she asked if the IEC had a recruitment plan that focused on capacitating itself by hiring from the population of unemployed and qualified candidates.

Responses

Mr Sheburi stated that as a commission, the IEC did not believe that they were beyond criticism or beyond reproach but that there were mechanisms that had been put in place to raise issues related to the conduct of officials or even members of the IEC. It was not useful for parties to critique the IEC and tell their members that the IEC could not be trusted and then act surprised on voting day when voter turnout was suppressed. If the message parties were sending out was not to trust the IEC, then why would they trust the IEC with their votes on voting day? If there were things that the IEC got wrong, then there were mechanisms to deal with those mistakes, such as approaching the IEC directly or through the electoral court when it related to the conduct of commissioners.

He noted that the number of teachers as electoral staff had declined. When the IEC started, their staff consisted almost exclusively of teachers because schools were used as voting stations, but teachers made up a very small percentage of IEC staff. Some positions needed people with supervisory experience which related to the three key positions in the voting stations, being that of the presiding officer, deputy-presiding officer, and the voters’ roll officer. Over 70% of the people who worked for the IEC had indicated that they were unemployed, and they were young people. There still had to be experienced and seasoned people to withstand the rigorous demands of voting stations, such as managing and supervising staff and doing basic administration at the voting station.

The IEC was aware of the issues of logistics in the North West. The issues were not due to a lack of preparation on their side. They had the staff and the materials, but they could not access the stations because of community protests targeted at the voting stations. They were working with security clusters as they always did. There was an inter-ministerial committee on justice and peace which coordinated the work of the IEC.

The inter-ministerial committee was charged with the responsibility of ensuring that there was peace in the country even during the election period. Regarding the attitude of the IEC on prohibited conduct, the Supreme Court of Appeal had advised them in the DA v ANC case that the IEC may form a view that there may have been conduct inconsistent with the code of conduct. What the IEC could not do was, when having formed a view, impose a sanction or direct a party to do one thing or another. So, the IEC's recourse was to go to the Electoral Court. If it went to the Electoral Court, it must have sufficient evidence to persuade the Electoral Court to favour the IEC. If the Electoral Court did find in favour of the IEC only the Electoral Court could impose a sanction. An approach to the Electoral Court had to be based on evidence that could withstand the rigorous scrutiny of that Electoral Court.

The IEC was engaging with Eskom to understand what the grid’s capacity would be on voting day. They had arranged a contingency plan to support the voting process with solar-powered or rechargeable lights. They were also making resources available to their local offices so that they could procure generators and standby resources locally to enable them to continue to capture results. Normally they did not struggle with loadshedding, but they did struggle with local outages, whether planned or unplanned.

The IEC had looked at various proposals to prolong the voting date. In terms of the law, voting day was only a one-day process, but anyone still in the queue by 21:00 would still be assisted. There were measures in place to deal with queues from the moment voting stations were opened. They would have QR codes at every voting station to help people who join the queue to know whether they were at the correct voting station, and if they were not, they would be redirected to the voting station where they had registered. For the people without smartphones, the IEC was looking at investing in hardware at voting stations so that voters without smartphones could also be assisted.

The IEC would have big ballots printed and available at voting stations to help voters with orientation and to assist voters in understanding whether their party of choice was on the left or right column of the ballot, or, where there were multiple page ballots, perhaps their party was on the first or second page of the ballot. This would be helpful because voters would be introduced to the ballot paper before they voted. They were introducing additional counting capacity where they purposefully recruited people with numeracy skills so that they were able to assist the presiding officer and the team that would be working during voting day and the two special voting days to deal with the count more speedily and to increase the accuracy of the count.

They were introducing big results slips at the voting station to assist presiding officers in recording the results of parties correctly and avoid a situation where the results of a B party were allocated to party C by mistake because the names possibly sounded the same or they had missed the sequence of the parties on the ballot.

Section 24A of the Act may have a negative impact on voter turnout but the biggest consideration when Parliament took a decision to amend section 24A of the Act was to safeguard the integrity of electoral outcomes and safeguard against a possible narrative that people were allowed to vote more times than what they were ordinarily entitled to. He noted the complaint about access to farmland and indicated that they would respond to this complaint. Generally, a voting station, whether it was privately owned or a public facility, the IEC and political party agents had access to that facility.

Recruitment and training were currently underway. Those people they had recruited would undergo at least four sessions of training on a modular basis. A person was assessed for each module, and they had to attain a score of 40% before they were confirmed at a voting station. On the issue of stopping presiding officers from refusing agents to take photographs of completed results slips, the matter was part of training and they had conceded to endorsing the freedom of party agents to take photographs of the completed results slips. Also, if there were such issues, they should be raised at the local party liaison committee (PLC) because it was close to the area where it happened and it could be attended to effectively.

The voter management devices (VMD) were specified to operate under the following circumstances, in online and offline modes. Online was where all the things in the environment worked and there were no interruptions owing to internet cable being cut. So, where there was connectivity and where the towers were fully charged with batteries, the VMD would operate online for most of the country. When the VMD failed to establish a signal within seven seconds, it would default to offline mode. An operator did not even have to do anything; it would automatically default to the offline mode and enable the voting process to continue. Voting stations did not deal with maps or data-laden transactions so the VMD should work optimally.

The recruitment criteria were intended to exclude persons actively involved with political parties. They made the recruitment names available to local PLCs and the local PLC would raise objections based on local knowledge against those persons. They also ran comparisons with the candidate nomination system to check if a person had been a candidate for a political party in the last five years. If they had been then those persons would be excluded. The criteria were not intended to exclude people who were members of trade unions but rather people who had a high political profile. Possible court challenges did worry the IEC. The IEC did not take issue with people going to court to ventilate rights and get adjudication on issues. The problem the IEC had was the issue of timing. If one went to court close to an election, it could impact voter behaviour and create uncertainty among the voting public.

Regarding information leaks, it was difficult to stop the leaking of information in an unauthorised manner. In the current circumstances, the person who leaked information was properly authorised to have access to the reports and the system. They were not authorised to share or distribute the information in the reports. The IEC had looked at their control measures and they had limited access and disaggregated the reports that any given person had at any time.

Some of the controls that were already in place worked because once the list started circulating, they could tell without further inquiry that those leaks had been generated from the internal system because they had hallmarks on them that distinguished them from any other leaks that would come from outside the system. There would be independent candidates but they were unable to confirm the number of independents and parties because the non-compliance period was still underway so the IEC did not know how many of those that had submitted would end up as candidates in the elections.

Mr Mawethu Mosery, Deputy CEO: Outreach, IEC, explained that in the instance where members encountered rude and unhelpful staff, they needed to report the location of the voting station where they had the encounter so that the IEC could take the necessary corrective action. They also requested this kind of feedback post-election so that they could focus on the stations where staff had been unhelpful. On the issue of staff recruitment and the ratio of employed and unemployed persons, they had shared a lot of detail on this issue in previous engagements but over 88% of the people who worked at voting stations were unemployed persons and the 12% happened to be employed persons. The IEC explained how the 12% was spread in terms of the key roles of the elections. One of the tests that they had asked Members to always keep in mind was that the voting station management had to still be of quality to give them the credible outcome that was desired as they participated in this electoral process.

On the matter of observers, he noted that it was the role of the IEC to invite broadly domestic as well as international observers. This was not a role or responsibility that was also extended to political role players in an election. Another role player responsible for inviting international observers was the state arm dealing with this area of work, being the Department of International Relations and Cooperation (DIRCO). The focus for DIRCO was on multinational relations in this area. Some of the expressed reasons for parties doing this on their own were noted but were not sufficient reasons to bypass who should be doing this kind of work. The IEC continued to encourage more observers to observe the elections. Just over thirty domestic entities had been approved as local observers.

Regarding voter education, the IEC had started education on the three ballot papers. They were focusing on the key elements of a ballot paper that defined how they looked at it and how they interact with it. All of this was done to help voters become comfortable with the ballot paper. An addition that would be incorporated in the coming two weeks was the various colours they may use on the ballot paper just to help the identification and meaning of the ballot paper. The graphic designs that the IEC had been working on were on the website for viewing and they had been prepared for the three ballots. The other aspect that voter education was highlighting was how to mark a ballot paper.

Face-to-face voter education in various communities would incorporate visuals such as poster-size depictions of what the ballot paper would look like. They were focused on a double-column ballot paper which was the first of its kind in the country. During the voter education process, the real political parties contesting would not be displayed on the ballot paper. In previous years, a sample ballot paper had had the actual political parties that had been contesting, and the sample ballot had ended up being misused. The length of the ballot paper depended on the final number of parties and candidates that would contest this year.

The statement that the ballot paper would separate independent candidates from political parties, was incorrect. The ballet paper flowed in alphabetical order. Independents would be joined in the ballot among the political parties alphabetically. This would be the case for both regional and provincial ballots. National compensatory ballot would have political parties but in the order that had been indicated. There would be a secondary draw in the order of the ballot to separate those political parties with similar logos, acronyms and even colour schemes. This would be explained during the draw. They would use all social media and digital platforms on the ballot, as well as print, television, and radio.

On the issue of disinformation, the IEC had their usual panel to deal with code of conduct infringements. The actual sanctions on the infringements of the code were at an Electoral Court level. The IEC would do its part, and the Electoral Court would be approached depending on the conclusion the IEC reached regarding each reported case. They were working with various digital platforms to support electoral integrity and the credibility of the elections. They were also undertaking an education programme to inform citizens about misinformation and how to navigate the digital space as it relates to the elections. They had partnerships with other statutory structures to make interventions, and amongst those partnerships was the Film and Publications Board. They also cooperated with non-governmental organisations (NGOs), which investigated and followed through on any cases that were reported on misinformation.

Ms Janet Love, Vice-Chairperson, IEC, explained the issue of the code of conduct, and noted the difficulties and the requirements to ensure that they obtained the relevant evidence. They had been working within the framework of alternative dispute resolution mechanisms and engagements had been pursued by staff of the IEC working with NGOs at the more local level. On the issue of observers, they had had significant numbers of both domestic and international observers in each of the country’s elections. They continued to encourage this process to happen in the usual way. They had received a number of applications for observers and so far, they were continuing to receive those applications. The IEC had given the go-ahead for the recruitment of teams of observers from fifty-two organisations, some of whom were international but most of whom were domestic.

International observer organisations traditionally had given their submissions a little bit closer to the electoral process. In addition, not only did DIRCO invite the multilateral institutions, but it also had briefings with the diplomatic core within the country, which gave special guest status to access to South African electoral processes.

There were two things to be said about the issues of disinformation, particularly in terms of capacity. Firstly, it was important to recognise the partnership with most of the platforms that was in place was a partnership that also triggered within those platforms their own processes for heightened risk management during times of elections. It was also possible that the public not only raised problems with the platforms through the IEC itself but also directly to the platforms.

Secondly, this was possible to a certain extent when it came to some of the technologies that were used, particularly AI. Regarding the law in this country, the platforms were not yet obliged to disclose when AI is used. This was something that the IEC was in discussions about. It was something that was covered specifically in the guidelines that had been adopted by the electoral management bodies of the African continent. They were hoping that through adherence and through domestication and socialisation of those guidelines the situation would continue to improve.

The Chairperson stated that the Committee was going to conduct oversight during April to observe some of the issues raised by Ms Love. He reiterated that the Committee gave full support to the IEC in the 2024 election processes. He excused the IEC from the meeting and thanked the representatives for their presentation and responses.

Briefing by Secretary of the Committee on the Registration of Muslim Marriages Bill

Mr Mathonsi took the Committee through a timeline and summary of the Registration of Marriages Bill [B30-2022]. He noted that Mr M Hendricks (Al-Jama-Ah) had introduced the Registration of Muslim Marriages Bill on 24 November 2022 as a Private Members’ Bill in response to a Constitutional Court ruling where it was indicated that the Marriage Act 25 of 1961 was unconstitutional because it was not registering Muslim marriages. On 2 May 2023, Mr Hendricks briefed the Committee, and the Minister responded to that briefing on the same day. In the Minister’s response he had indicated that the Registration of Muslim Marriages Bill was supposed to be temporary and that the DHA was in the process of developing an omnibus Marriage Bill to address all marriages. In that meeting, the Minister and Mr Hendricks agreed to meet with their legal teams to work on a circular to register Muslim marriages. Mr Hendricks subsequently withdrew the Registration of Muslim Marriages Bill he had introduced. On 13 December 2023, the Marriage Bill [B43-2023] was introduced but because the Committee had been focusing on the Electoral Amendment Bill, they were not able to deal with it then.

On 6 February 2024, Parliamentary Legal Services briefed the Committee and the Select Committee on Security and Justice (NCOP) on the progress of the Marriage Bill. Prior to the public hearings on the Bill, they had been planning to appeal to the Constitutional Court to grant a 24 month extension because Parliamentary Legal Services had felt that Parliament would not be able to process the Marriage Bill before 27 June 2024 because of the election and the complexity of the Marriage Bill itself.

Parliamentary Legal Services had advised the Committee to advertise the Marriage Bill and have the Minister brief it on the contents of the Marriage Bill to demonstrate to the Constitutional Court that Parliament was not just sitting [on it] due to elections but was processing the Marriage Bill. This would form part of the motivation to request an extension from the Constitutional Court for a further 24 months. Since this administration was coming to an end, the Marriage Bill would lapse after they had received a briefing from the Minister and public advertisement. This meant the Marriage Bill would have to be revived in the seventh Parliament. The Committee would receive a briefing from the DHA, but it would not be advertised. The Marriage Bill would go straight into public hearings.

Briefing by Parliamentary Legal Service

Mr Lonwabo Sopela, Parliamentary Legal Adviser, presented to the Committee on the Marriage Bill [B43-2023]. He explained the extent of the work Parliament had done since they had appeared before the Committee last month. The due date for Parliament and the executive to have passed the Marriage Bill to comply with the court order, as ordered by the Constitutional Court in Women’s Legal Resources Centre v Minister of Home Affairs, was 27 June 2024. This date would not be met, which was why the legal service team had started the process of requesting an extension. When they last briefed the Committee, they had been awaiting political and financial authorisation which was still being decided upon by the presiding officers and the financial authorisation by the Secretary to Parliament. They had obtained authorisation, and once authorisation had been obtained, they were able to engage the Office of the State Attorney, who had then appointed senior counsel who was now handling the matter.

In terms of the request, the DHA had requested an extension of 24 months because there was going to be a new Committee in the seventh term that was going to have to be appointed and acquaint themselves with the contents of the Marriage Bill and be able to move forward with the work. They also expected the Marriage Bill to generate a lot of interest so there may be many submissions that would be received which was why it was better not to rush the process, thus being the reason why an extension had been requested. Everything would be done within 24 months, including assent by the President. Counsel had commenced working on the brief and they would meet with the Office of the State Attorney’s this afternoon.

The application would then be served once the counsel had drafted all the papers and they had been checked and all the relevant affidavits had been deposed to by all the relevant deponents. Once this process had been done, there would be service on the Women’s Legal Resources Centre because they were the applicants in the matter and in whose favour the Constitutional Court had found. So, they would be served, whereafter the application would be filed at the Constitutional Court. How the matter moved forward would depend on the Constitutional Court. The intention was to have the matter set down way before the deadline of 27 June 2024. They hoped the extension application would be granted before the deadline was reached.

On the issue of the lapsing of the Marriage Bill, they hoped that public comments on the Marriage Bill made in this sixth term of Parliament would be consolidated while the extension application was being decided on. When the next Committee in the seventh term decided to continue with the Marriage Bill, they would be able to see public comments that had already been received, progress made and work done around consolidating those comments.

(See attached presentation for further details)

Briefing by the Department of Home Affairs

Adv Phelelani Khumalo, Head: Legal Services, DHA, explained that the Marriage Bill would be a piece of legislation which regulated or governed all types of marriages in the country. The Marriage Bill sought to rationalise the marriage laws pertaining to various types of marriages. It sought to provide for the requirements of monogamous marriages and polygamous marriages. It also sought to provide for the designation of marriage officers and matters incidental thereto. He explained the contents of the Marriage Bill clause by clause, from clause 1 to clause 23.

Some of the main clauses included:

• clause 1, which dealt with the definition of words and terms used in the Marriage Bill;
• clause 2, which provided for the objects of the Marriage Bill which were to provide for the recognition of marriages, the requirements of marriages, the designation of marriages, and registration of marriages;
• clause 3, which provided for the recognition of existing marriages concluded in terms of the Marriage Act no. 25 of 1961, the Civil Union Act no. 17 of 2006, the Recognition of Customary Marriages Act no. 130 of 1998, and marriages concluded in terms of the laws that were applicable prior to 1994
• clause 4, which dealt with the age determination of prospective spouses, whereby prospective spouses had to prove that they were not under the age of 18 years.
• clause 5, which dealt with the requirements of a valid monogamous marriage entered into before and after the commencement of the Marriage Act, and included a marriage between same-sex couples;
• clause 6, which dealt with the requirements for polygamous marriages, including customary, religious, and secular polygamous marriages;
• clause 7, which spoke on marriage officers who had to by virtue of their offices, continue to be recognised as marriage officers; and
• clause 8, which dealt with the designation of other persons as marriage officers.

(See attached presentation for further details)

Discussion

The Chairperson noted that the process that would be followed in terms of processing the Marriage Bill was that the Committee would subject it to public hearings or public consultations. Afterwards the Committee would deliberate on the submissions they would receive from the public.

Mr Pillay noted that the Members had accepted that they would not be able to complete the finalisation of the Marriage Bill before the end of the sixth administration. He welcomed the reason for requesting an extension. He asked if it was going to be feasible for the Committee to call for public comment within the sixth administration. If it was at all still possible, then they would need to agree on that but if it was not, then perhaps it needed to be left to the seventh administration.

Mr Roos stated that the DA also welcomed the call for an extension on the Marriage Bill. He asked the Minister to try to come to the Committee timeously so that they did not have to deal with the courts in the future. He concurred with Mr Pillay’s sentiments that public comments should perhaps be undertaken in the sixth administration.

The Chairperson stated that the decision was that public comments should be dealt with in the seventh administration given the short period at hand. It was also agreed to in the last Committee meeting when the Parliamentary Legal Services had briefed the joint committees, so the decision still stood.

Responses

Mr Sopela noted that at this stage, all that was required of the Committee due to the time constraints linked to the end of the term was a call for submissions. Now that the Minister had briefed the Committee, the next step would be to call for public comments. Parliamentary Legal Services would consult the Committee about the reasonable period for public comments. Public comments may and could take place in the current term. If the seventh administration decided to revive the Marriage Bill, then there could be a consolidation of the submissions received from the public. Once the Committee made that decision, it would go straight into public hearings instead of the process starting afresh.

Another reason why the Parliamentary Legal Services would advise that the process of calling for public submissions ought to happen now was because the application for extension is still going to be argued in the papers and in the actual hearing in the Constitutional Court. If they say that Parliament had left matters lagging because the term was coming to an end, that will not be in the favour of Parliament when in the Constitutional Court but if they say that Parliament had worked on matters related to the Marriage Bill up to the last moment that one was legally allowed to do so it added more weight to the request the Committee was making to the Constitutional Court.

The Chairperson clarified that the meeting was not for dealing with compliance issues that motivated their request to the court. Members were raising legitimate reasons which was that the time period to finish this process would need to meet the deadline and that elections were on 29 May 2024. There were two issues that this meeting was resolving. Firstly, the Marriage Bill would be completed by the seventh administration. Secondly, if the Committee issued written comments now it would be the next Committee in the seventh term that would receive those comments. Could that Committee decide to call for another round of public hearings? Or could there be public hearings in the seventh administration?

Mr Sopela stated that there were two different processes. The seventh administration would deal with the call for written submissions but those submissions would have been received by the sixth administration. Public hearings would only be held by the seventh administration because the hearing would be based on the decisions that the seventh administration would have made at the time while also taking into consideration the contents of the written submissions. When the seventh administration’s Committee decided to revive the Marriage Bill, they may say that they also agreed with the decisions that had been taken as far as the Marriage Bill was concerned by this particular Committee.

The Chairperson stated that the two issues had been clarified and resolved. He asked for indications from the Committee if they could move forward with the process.

Mr Roos stated that he supported moving forward with the process.

Minister Motsoaledi commented in respect of the amendment of section 34 of the Immigration Act 13 of 2002, which had been introduced in 2016 and was confirmed by the Constitutional Court in 2017, there had been a decision by the Fifth Parliament to make it a Committee bill but it was phased out after four meetings. When the new Parliament came into power, they received no information about it. He stated that he entered the Department in May 2019 and that Bill had expired in June of that year without him ever knowing that there was such a bill and without this Committee ever knowing.

He stated that steps needed to be taken when a bill went over a term of Parliament. He asked for clarity on this because he did not want this error to occur in future especially after the judgment of the Constitutional Court, where he was obligated to pay personal costs on this matter because the judges could not understand the delays. The matter had not been handled well. The Marriage Bill had been submitted in this Parliament. The DHA wanted it to extend to the next term. What steps needed to be taken legally that had not been taken during the 2019 transition that led to the negative judgment?

Adv Charmaine van der Merwe, Parliamentary Legal adviser, stated that the Bill the Minister referred to came before his term. He may not be aware of this, but the decision in the Committee was not to proceed with the Committee bill because the Department had indicated that there was to be a planned review of the Bill. It was not that the Bill just fizzled out and nothing happened. There had been an active decision taken in consultation with the Department at the time. With respect to this [Marriages] bill, the Committee and Minister can be assured that the Parliamentary Legal Services has kept a very close eye on all legislation that deals with Constitutional Court deadlines.

She stated that the moment the National Assembly (NA) was reconstituted, they would write to the NA to ask for a motion to revive the Marriage Bill. It was extremely important that the Marriage Bill was revived as soon as possible. It would probably not be before the first State of the Nation Address (SONA) but soon after the first SONA of the seventh administration. The Marriage Bill would form part of the Committee’s legacy report and the new Committee would keep an eye on this Marriage Bill.  

Minister Motsoaledi stated that he understood the matter and was assured by Adv van der Merwe that there would not be a repeat of what had happened in future.

Closing Remarks

The Chairperson indicated that the Committee had received the legacy report the previous day. In one of the Committee meetings, there was a brief discussion about the issues they needed to include. He proposed that they deal with the adoption of the legacy report in their last meeting.

Mr Pillay supported the deferral of the legacy report to their last meeting because there was too little time to go through the entire report and make any submissions.

Mr Roos seconded the proposal to defer the legacy report. He stated that the report was a very important document, and it needed to be given appropriate consideration to ensure that all the changes were there.

The Chairperson stated that the document had now been circulated to their attention. He urged Members to go through the report in detail so that if there were any additional input that should be part of the report those changes were made. He thanked all the attendees for their contributions to the meeting.

The meeting was adjourned.