Electoral Matters Amendment Bill: deliberations (with Deputy Minister)

Meeting report

Opening remarks by the Chairperson

The Chairperson welcomed all present at the meeting, including the Deputy Minister of Home Affairs, the IEC, and the various legal representatives.

She indicated that the Committee would continue its deliberations on the EMA Bill. During the previous meeting on Friday, March 15, the Committee deliberated on each clause of the Bill, where public comments were made and amendments affected the Bill.

Clause 29 of the Bill, which deals with the amendment of Schedule 2 of the Political Party Funding Act (PPFA), was given more attention in the meeting. The clause deals with the proportional and equitable party funding allocation and the upper limit donation and disclosure limit where prescribed amounts are removed from legislation to be reflected in regulations.

Members expressed different views on this clause. While support was expressed for the 90/10 proportional and equitable allocation, clarity was sought on whether the proportional and equitable funding allocation percentages were a substantive amendment, whether further public participation on the Bill would be required, and whether this clause went against Section 236 of the Constitution.

Other issues were raised regarding whether the removal of the prescribed amounts or upper limit donation and disclosure limits will render the Act ineffective until such limits are set in regulations and, further, how the Department of Home Affairs (DHA will ensure that the regulations are drafted timeously so as to avoid a gap in the regulations. The NA resolution was also raised in this regard.

The Deputy Minister, Parliamentary Legal Services (PLS) and the department’s legal unit provided responses to these concerns.

Following those remarks, she opened the floor for discussion.

Discussion

Mr R Badenhorst (DA, Western Cape) disputed the claim of general support for the 90/10 split. He said there should not be a generalisation.

The Chairperson requested that the Member not misquote her. She said that members expressed different views on Clause 29 and that support was expressed for the 90/10 proportional and equitable allocation to political parties and independent representatives. She had not said that there was general support.

Mr Badenhorst said that he had heard differently. Nonetheless, he indicated he forwarded a written note to the Committee Secretariat highlighting the DA’s views on the Bill. He hoped it would be included as a minority view in the report. The DA’s objection to the two clauses – the party funding allocation and the regulations on the disclosure thresholds – is that it did not feel it was relevant to amend the laws to include independents. The party felt this had been a rushed process because of the looming elections. Because there have been delays in the bill's introduction, these clauses have not been thoroughly considered. 

Clause 29 increases the proportionality of the allocation from 66.6% to 90% and decreases the equitable allocation from 33% to 10%. Section 236 of the Constitution states that national legislation must provide for the equitable and proportional funding of political parties participating in national and provincial legislatures. The section, he added, was clear that this must be done to enhance multi-party democracy.

The DA argued that this proposed clause went against the tenets of the Constitution, and has been introduced to benefit the ANC’s coffers, with an extra R50 million estimated to be allocated to the party in the year alone. In contrast, smaller parties’ income is expected to drastically reduce. Furthermore, as independent representatives are limited to 1 seat, their allocation would be more than halved. As such, the DA proposed that the current funding model remain and that a proper investigation be done into party funding allocation before the law is amended.

Regarding the regulations on disclosure threshold and upper limit on donations, he mentioned that the DA did not oppose Clause 29 for its substance but based on the practical situation it may create, given that there will either be a delay in the clauses being brought into effect or another rushed parliamentary process may occur for the resolution to be passed. There could also be a scenario where the Bill is passed in its entirety with no precaution taken, resulting in no limits on donations or disclosure requirements. As such, the DA proposed that the existing thresholds be added to the new clauses to ensure provisional precautions are taken.

He added that the DA would support the adoption of the Committee report if its submission is included as a minority view. However, it remained opposed to the Bill.

The Chairperson noted that the DA had raised some of the issues in the previous meeting, except now the proposals were clearer that it wants to be included as a minority view.

Mr T Dodovu (ANC, NW) pointed out that there are only about eight weeks until the elections. The Committee needed to be extremely concerned that we are where we are because we have not finalised the amendment to the electoral law as directed by the Constitutional Court. His plea is that whatever is done must be an endeavour to ensure that this process is finalised. They have come a long way in terms of this Bill. It has been back and forth, and at some point, they need to finalise it. He felt that there was an attempt to shift the goalpost. In his view, the proposal of the funding model was appropriate. The ANC had researched the matter and felt it was okay because of its dual nature. It caters for equitable and proportional funding. It is sufficient. An impression must not be created that they have not investigated the matter, and whatever is on the table will require further investigation. They are satisfied that, under the circumstances, this is what the country needs. He urged the Committee to look forward to this matter. They should comply with the order of the Constitutional Court and ensure that the IEC is ready without any impediment. He added that political parties should go on the ground to fight the elections and not create unnecessary scapegoats and reasons why this process should be delayed.

Mr N Hadebe (IFP, KZN) placed it on record that the IFP was also opposed to the amendments. Their arguments were similar to the ones advanced by the DA. They viewed the amendments as unfair and impractical. In addition, it thought that the amendments contained an element of unfairness and practicality. Its objection was not based on concerns around the election; the party welcomed the approaching elections as it hoped to capitalise on its recent by-election results and defeats of the majority party in the national elections.

Ms M Bartlett (ANC, Northern Cape) supported Mr Dodovu’s call for Parliament to adopt the Bill as soon as possible.

Ms A Maleka (ANC, Mpumalanga) also supported Mr Dodovu’s call. In addition, she indicated that the ANC supported the amendments proposed in the Bill.

The Chairperson asked the department if it had any responses to some of the issues raised by Members.

Mr Njabulo Nzuza (Deputy Minister of Home Affairs) indicated that some department officials were appearing before the Portfolio Committee on Home Affairs.

Afterwards, he made three points to the Committee. First, he stressed that the proposed amendments were consequential, as the introduction of independents required the department to review the funding formula. Second, he said that the Constitution does not prescribe the percentages of what ought to be equitable or proportional—rather, it dictates that logic must prevail. Third, he said there was an issue of time and pleaded with the Committee to finalise the processing of the Bill as soon as possible.

The Chairperson asked the IEC if it had any comments to make.

Mr Mosotho Moepya (Chairperson of the IEC Commission) said that he had nothing to add except to stress that this process was new terrain for the country, with an election looming and some amendments still outstanding. Despite that, the Commission was confident that the Committee would deal with the amendments as appropriate.

Ms Telana Halley-Starkey (Parliamentary Legal Advisor) reminded the Committee that the PLS had initially believed Clause 29 was a substantive amendment based on the principles in Harksen versus Lane, that there should be a rational connection or legitimate government purpose if a provision differentiates between people or categories of people.

She stressed that it was the executive's prerogative to develop policy and that Parliament should interrogate it, which it did in the Portfolio Committee. For this reason, the Minister brought figures to the Portfolio Committee on Home Affairs, which showed that the previous funding formula had disadvantaged independent representatives in the department’s opinion. In that same presentation, he provided the Committee with further figures illustrating that the 90/10 formula did not disadvantage independent representatives; it assisted them and brought the fairest outcome. After some interrogation, the Committee resolved to support the department’s opinion.

She mentioned that the PLS has highlighted the risk of being a lacuna in the law and has since taken steps to mitigate this by informing the Speaker. It trusts that the Speaker will move swiftly on the matter and that a resolution will be presented by the National Assembly as soon as possible in order to make those regulations happen as soon as possible.

Mr Badenhorst asked what the PLS’ recommendations to the Speaker were.

Ms Halley said the PLS alerted the Speaker, Portfolio Committee and Select Committee that a possible lacuna may arise. It is necessary that a resolution be passed as soon as possible. They were mindful of the programming of the National Assembly. The legal opinion alerted the Speaker there be a possible gap in the law should those regulations not be drafted as soon as possible, and those regulations need to be drafted on a resolution by the National Assembly

The Chairperson noted that if they do decide to move ahead with the process, the DA had indicated its minority view they have provided to the Secretariat.

She indicated that in the last meeting, provinces were asked to respond, especially in relation to financial management issues. KwaZulu-Natal and Limpopo responded and stated that they had no concerns but did decide to in relation to the Bill.

She thanked the department, the IEC, and the legal advisors.

She announced that the Committee would meet the following day to adopt the Bill and its report.

Furthermore, she hoped that the Speaker would swiftly implement the PLS’ recommendations to mitigate the risk of a legal lacuna.

The meeting was adjourned.