Western Cape Amendment Bill (Determination of Number of Members): WCPP briefing; Children's Commissioner Appointment Process

Meeting report

Opening and attendance
During a hybrid meeting of the Standing Committee on Finance in the Western Cape Provincial Parliament, the Chairperson, Ms B van Minnen (DA), welcomed attendees, noting the presence of two members online and confirming a quorum. She mentioned that Mr Walters was running late but would join shortly, and no additional apologies had been received. The Chairperson reminded participants of standard virtual meeting protocols.

Agenda and meeting purpose
The agenda focused on a briefing by the Western Cape Provincial Parliament regarding the Western Cape Amendment Bill, specifically the determination of the number of members. This presentation had been requested during a February meeting.

Before proceeding, the Chairperson invited comments from the Speaker and suggested that attendees introduce themselves for the record.

Introductions
The following introductions were made:

• Ms W Kaizer-Philander (DA)
• Mr L van Wyk (DA)
• Mr K Sayed (ANC)
• Ms D Stephens (PA)
• Mr B Herron (GOOD)

Officials

• Mr Romeo Adams, Secretary, Western Cape Provincial Parliament
• Mr Vernon Titus, Director: Institutional Enablement, WCPP
• Ms Nicole Petersen, Chief Financial Officer, WCPP
• Mr Darwin Jardine, Manager: Finance
• Mr Lubabalo Stemele, Director: Parliamentary Support Services
• Mr Mario Sassman, Manager: Committee Support
• Adv Andre le Roux, Senior Legal Advisor

Additional attendees from the Speaker's office and other parliamentary support divisions introduced themselves.

Correspondence and Legislative Context
Mr Adams referenced correspondence dated 21 February addressed to the administration and the Speaker, requesting information on potential amendments related to seat allocation, financial implications, and the overall balance of seat distribution. He explained that legislation provides for the Independent Electoral Commission (IEC) to determine the number of seats per provincial legislature before provincial and national elections, held every five years. However, the Western Cape Provincial Parliament is unique in that its Constitution, approved by the Constitutional Court, specifies the number of seats, making this an internal process within the Western Cape.

Comparative analysis of seat determinations
Mr Adams shared a document outlining how the IEC had reviewed and adjusted the number of seats in other provinces in the previous parliamentary term. He provided the following seat adjustments as examples:

• Gauteng: increased from 73 to 80 seats
• Limpopo: increased from 49 to 64 seats
• Mpumalanga: increased from 30 to 51 seats
• North West: increased from 33 to 38 seats
• Free State: remained at 30 seats due to the formula constraints
• KwaZulu-Natal: remained at 80 seats as it had reached its maximum
• Northern Cape: remained at 30 seats, which is the legal minimum
• Eastern Cape: increased from 63 to 72 seats

He noted that the Western Cape was responsible for determining its own seat allocation, as indicated in the document.

Challenges in obtaining national input
Mr Adams explained that the IEC had undertaken a public participation process, which had resulted in these seat adjustments for other provinces. As part of this process, the IEC received input from the National Treasury regarding the financial implications of increasing the number of seats. However, despite multiple attempts by the Western Cape Provincial Parliament to obtain this input from National Treasury, no response had been received. The Office of the Secretary had engaged with the Provincial Electoral Officer, Mr Hendricks, to assist in retrieving this information, and all reasonable attempts had been made.

He emphasised that, should the committee and the Western Cape Provincial Parliament consider any adjustments, having access to the National Treasury input could add value to the deliberations. He assured the committee that, if this information became available before a decision was made, it would be shared through the Speaker.

Final remarks and presentation handover
Mr Adams concluded that the seat determinations had not changed following the public participation process, and the IEC had finalised the seat numbers for other legislatures accordingly. He observed that the largest increase had been in Mpumalanga, where 21 additional seats had been allocated. He reiterated that those provinces remaining at 30 seats had done so because it was the legal minimum.

He noted that these developments in other provinces provided useful context for the discussions in the Western Cape. He then handed over to Adv le Roux to proceed with the main presentation.

Legal perspective on the Amendment Bill
Adv le Roux thanked the Secretary and sought permission to project his presentation. He explained that his briefing would address the specific requests made by the committee. While he intended to cover all aspects of the request, other colleagues would address certain questions.

Adv le Roux began by focusing on a later question in the committee's request, which pertained to the proposed number of seats in the amendment. He noted that the decision ultimately lay with the committee as a policy matter, though the administration could provide advisory input. He outlined previous policy decisions taken on this issue to provide historical context.

Previous policy decisions on seat allocation
Adv le Roux stated that in November 2022, an Ad Hoc Committee on Western Cape Provincial Parliament seats had tabled a report in the House. This report, which had been made available to the committee, detailed research on the matter. The Ad Hoc Committee had been tasked with assessing whether the current number of seats in the legislature was adequate to effectively represent the people of the Western Cape. The committee concluded that the existing number was insufficient and recommended that the matter be referred to the Standing Committee on the Premier and Constitutional Affairs to consider an amendment to the provincial constitution. Additionally, the Ad Hoc Committee recommended that the provincial constitution provide periodic reviews of the number of seats and that the one-in-100 000 formula used in the Electoral Act be considered a guideline.

In September 2022, the same committee had been briefed on policy options for amending the provincial constitution. This document, also made available to the committee, had presented three proposals:

1. Incorporating a formulaic approach in which one Member would be allocated for every 100 000 or 80 000 residents, as applicable.
2. Substituting the number of seats in section 13 of the provincial constitution with a new fixed number.
3. Repealing section 13 of the provincial constitution entirely.

At the time, legal support had raised concerns about the constitutionality of the formulaic approach, not necessarily deeming it unconstitutional but highlighting legal complexities regarding its implementation and potential Constitutional Court review. The substitution and review-based approaches had already been approved by the Constitutional Court in previous cases and carried minimal legal risk. While the committee had expressed a preference for the formulaic approach, no formal resolution had been taken.

Public Participation and Policy Shifts
Adv le Roux explained that the Constitution of the Western Cape First Amendment Bill had initially been drafted based on a formulaic approach, allocating one seat per 100,000 residents. This version had been circulated for public hearings during the sixth parliamentary term. The public participation process primarily sought input on whether the number of members should increase rather than determining a specific number. During these consultations, different figures had been presented for consideration, ranging from 48 to 60 seats.

Following the public engagement process, in November 2023, the Standing Committee on the Premier and Constitutional Affairs had resolved to amend the Bill by substituting the number of seats with the figure of 48, rather than proceeding with the formulaic approach. This shift had been partly influenced by concerns raised by the Western Cape Government regarding the constitutionality of the formulaic method. The final decision had incorporated several recommendations from the provincial government. By that stage, the Western Cape Government and the Western Cape Provincial Parliament had been satisfied that all constitutional concerns had been addressed. The committee ultimately relied on budgetary constraints and affordability to settle on the 48 seats.

Adv le Roux clarified that the Bill before the committee was the revived version containing the direct substitution approach.

Considerations for the Committee’s Decision
He outlined two primary options for the committee in determining an appropriate number of seats:

1. Repeal of Section 13 – This approach would remove the provincial constitution’s prescription on seat numbers, defaulting to the Electoral Act’s provisions. This would eliminate the need for the legislature to justify a policy different from the national standard.
2. Substitution of a New Number – If the committee opted to amend Section 13 with a new fixed number, it would need to determine the appropriate figure based on criteria such as affordability and representation.

Adv le Roux highlighted that policy decisions of this nature should ideally be informed by objective analysis of Members' workloads and the legislature's organisational needs.

Impact on Seat Allocation
He further addressed a committee query regarding how the amendment would affect the balance of seat allocations. He explained that the Electoral Act governed the process for implementing seat allocations while the provincial constitution could determine the number of seats. The Electoral Commission was responsible for determining representation following elections. Therefore, any change to seat numbers would only take effect after the next election.

He noted that, while the premier had the constitutional power to dissolve the legislature after three years, triggering early elections, this would not affect the current seat balance unless a new legislature was elected.

Timeline for Implementation
Responding to a request for a detailed timeline, Adv le Roux outlined key procedural steps and estimated timeframes for completing the amendment process:

1. Committee Deliberations – Approximately one month to finalise the recommendation.
2. Adoption by the House – Approximately one month, requiring a two-thirds majority vote.
3. Preparation of Legal Papers – Approximately three months for an attorney to prepare application papers for Constitutional Court certification.
4. Filing with the Constitutional Court – Approximately two months, pending the Court’s directives.
5. Court Hearing and Argument—This is estimated at nine months, depending on the Constitutional Court’s schedule.
6. Certification by the Constitutional Court – Approximately two months.
7. Referral to the Premier for Assent – Approximately one month.

He concluded that, when the committee finalised its deliberations, it would take an estimated 19 months for the amendment to be certified and assented to by the premier. However, he emphasised that legislative and judicial processes were beyond the administration’s control and could take longer or move more quickly depending on circumstances.

Adv le Roux then handed the discussion back to the Chairperson.

Financial Scenarios for Increasing the Number of Members
An official from the Western Cape Provincial Parliament (WCPP) provided further details on the financial implications of the different scenarios, as previously outlined by the Secretary. He explained that multiple options for increasing the number of Members had been considered, each with varying cost implications.

The official presented a slide summarising the projected financial impact of increasing the number of seats, broken down into four cost categories:

• Remuneration – Salaries and benefits for additional Members.
• Parliamentary Work – Primarily constituency and secretarial allowances to political parties.
• Members’ Enabling Allowances – Support allocations for Members.
• Administrative Costs – Covering information technology (IT) resources, furniture, and equipment expenses.

He then provided a breakdown of the estimated financial implications over a three-year Medium-Term Expenditure Framework (MTEF) period for each scenario:

• Six additional seats – R23 million in the first year, R20 million in the second year, and R21 million in the third year.
• Eight additional seats – R29 million in the first year, R26 million in the second year, and R28 million in the third year.
• Nine additional seats – R33 million in the first year, R30 million in the second year, and R32 million in the third year.
• Thirteen additional seats – R46 million in the first year, R43 million in the second year, and R45 million in the third year.
• Eighteen additional seats – R62 million in the first year, R59 million in the second year, and R62 million in the third year.
• Twenty-three additional seats – R78 million in the first year, R75 million in the second year, and R79 million in the third year.
• Thirty additional seats – R101 million in the first year, R98 million in the second year, and R103 million in the third year.

The official emphasised that these figures were subject to inflationary adjustments over time.

Clarification on Funding Responsibilities
He addressed a committee query regarding the division of funding responsibilities between provincial and national government. He explained that WCPP had been engaging with Provincial Treasury for several years through the MTEF budgeting process to assess possible funding requirements for increased seats. These discussions were ongoing, with the Provincial Treasury kept informed of the financial projections and the need for additional funding should a decision be made to increase the number of members.

He noted that WCPP received its budget through the provincial budgeting process. Engagements had occurred between the Speaker, the Minister of Finance, and Treasury officials to ensure that all financial implications were considered. However, the final determination of the funding source—whether Provincial Treasury or National Treasury—was still under discussion. The official assured the committee that deliberations with Treasury would continue based on any decisions taken by the committee regarding the amendment.

He concluded by stating that the presented figures represented a summary of the cost implications of increased seats.

Engagement with Other Legislatures on Funding for Seat Increases
Mr Adams explained that the Chief Financial Officer had contacted counterparts in other legislatures to gather information on how additional Members had been funded, particularly in cases where legislatures had undergone seat expansions.

He stated that responses had been received from some legislatures. In certain instances, the information provided was general, merely confirming that additional funding had been received from Treasury without specifying amounts or the breakdown of costs covered. One legislature had indicated that it had received an additional R20 million, while another had reported an allocation of R45 million through its provincial treasury processes. However, not all legislatures had responded to the request for information.

Challenges in Costing Administrative Requirements
Mr Adams provided further insight into the complexities of estimating administrative costs associated with increased seats. While some costs, such as salaries, constituency allowances, and secretarial allowances, could be estimated with reasonable accuracy based on available figures, these amounts remained subject to adjustments due to inflation, cost-of-living increases, and broader remuneration policy changes affecting public office bearers.

He noted that administrative costs presented additional challenges, as certain expenses were not determined per-member but rather on collective infrastructure needs. He cited information technology (IT) resources as an example, explaining that while it was possible to calculate the number of additional laptops required, software licensing was often structured in clusters. If the required number of licences exceeded the existing cluster capacity, additional licences would need to be purchased in bulk, regardless of whether the increase was by a few Members or several. Similarly, if the expansion necessitated an additional server, this would be a collective infrastructure investment rather than an incremental cost per Member.

He further explained that an increase in seats could also have staffing implications. If more committees were to sit simultaneously due to the increase in Members, it could affect the current model where committee support staff service multiple committees. Additional personnel might be required to provide sufficient support, depending on the scale of the increase. These factors would only become clear once the committee had settled on a specific number of additional seats, as this would guide final cost determinations.

Infrastructure Considerations and Chamber Capacity
Mr Adams informed the committee that infrastructure was another critical issue, though no formal presentation had been prepared on this aspect. He explained that previous discussions had occurred in the sixth parliamentary term with the then Department of Transport and Public Works regarding potential Chamber expansion. However, due to the building's heritage status, structural modifications were strongly discouraged. The department had advised that certain walls provided critical structural support, and removing or altering them could compromise the integrity of the Chamber.

Based on the existing seating configuration, he stated that the chamber's maximum capacity was 60 Members. That morning, a recount confirmed that 30 seats could be accommodated on each side of the Chamber. However, this would require the purchase of additional furniture, with three benches needing to be added at the back of the room to accommodate the maximum number.

He reminded the committee that any increase in seats also needed to account for the six permanent delegates representing the Western Cape at the National Council of Provinces (NCOP), who had the right to be present in the Chamber. Therefore, if the committee determined a maximum of 60 seats, the effective number of seats available for Members of the Provincial Parliament (MPPs) would be 54 or 55, depending on seating arrangements.

Office Space and Political Party Support
Turning to office space requirements, Mr Adams noted that political parties currently occupy the fourth and fifth floors of the parliamentary building. However, some parties had already requested additional office space to accommodate their support staff, and no additional space was available under the current configuration.

He explained that on the administrative side, the Western Cape Provincial Parliament had adopted a hybrid working model since the COVID-19 pandemic, allowing staff to work remotely at times. This enabled some flexibility in office usage, including applying a "hot-desking" system, where multiple staff members shared workspaces if they were not in the office simultaneously. He suggested that similar approaches could be explored for political parties should space constraints become a concern.

He cautioned that significant challenges could arise if the committee opted for a substantial seat increase, particularly towards the IEC’s pre-election determination of 74 seats. Increasing from 42 to 74 Members would add 32 additional Members, each of whom would require not only seating in the Chamber but also support staff and office space. This would likely place considerable pressure on both parliamentary resources and administrative structures.

He concluded by stating that Mr Titus could provide further input on infrastructure and inviting him to add any comments on the matter.

Optimisation of Office Space and Modernisation Considerations
Mr Titus thanked the Chairperson and Mr Adams, noting that most key points had already been addressed. He emphasised that any decision on additional seats would directly impact the need to optimise office space and modernise the floor layout within the WCPP offices. He explained that this would likely be a significant undertaking, but its scale would depend on the final seat determination.

He supported Mr Adams' earlier remarks regarding the benefits of a hybrid working model, stating that it had introduced efficiencies in service delivery. He suggested that further gains could be achieved by continuing and expanding hybrid working arrangements.

Mr Titus also noted that the current desk and office configurations within WCPP were not aligned with modern standards used elsewhere in the Western Cape Government. He explained that the existing setup occupied more space than necessary, which presented an opportunity to explore modernisation initiatives. He suggested that rearranging the floor layout and optimising the use of space could improve efficiency and potentially create additional capacity.

He concluded by stating that, depending on the number of additional members to be accommodated, these considerations would form part of the broader planning process.

[See attached for full presentation]

Discussion
The Chairperson thanked the officials for their input and opened the floor for questions. Before taking Members’ contributions, she sought clarification on the historical population figures used to determine the size of the WCPP. She asked for confirmation of the population size when the initial composition of 42 seats had been determined, noting that the current population was approximately 7.2 million.

In response, Mr Adams stated that the seat allocation had been determined in 1999, when the Western Cape’s population was approximately 3.9 million. He further noted that, according to the documents gazetted by the Independent Electoral Commission (IEC), the province's population had since been determined at 7.4 million when it last reviewed its proposals. He invited Adv le Roux to provide any additional details if necessary.

Queries on implementation timelines and financial considerations
Ms Kaizer-Philander thanked the Chairperson and directed the committee to slides 8 and 9 of Adv le Roux’s presentation. She sought clarity regarding two statements: one on slide 8, which indicated that changes to the number of seats could only take effect after a provincial election, and another on slide 11, which outlined an estimated timeline suggesting that the process, if commenced in February 2026, could be completed by the end of September 2027. She asked for confirmation on whether the changes would take effect immediately after the election or if there was a procedural delay post-election.

She further appreciated the financial cost breakdown provided and referred to the Secretary’s earlier remarks regarding additional funding received by other legislatures. She inquired about the Western Cape Provincial Parliament's specific financial capacity, asking how many additional seats the legislature could afford within its current financial constraints, given the process that needed to be undertaken.

Consideration of Population Growth in Seat Determination
Ms Stephens stated that two of her questions had already been addressed but asked whether population growth and demographic changes had been considered when determining the number of seats.

Clarification on Implementation of the Amendment
Adv le Roux responded, first addressing Ms Kaizer-Philander's query regarding slide 8 of his presentation. He confirmed that the slide correctly indicated that changes to the number of seats would take effect only after a provincial election. To clarify the process, he referred to the Bill in its current form, explaining that while the first step was to amend the provincial constitution, a separate process was required to give effect to the amendment.

He stated that a key consideration in drafting the Bill had been the timing of its implementation. If the amendment were to be assented to in 2027, it needed clarity on when it would take effect. He read from the relevant clause, which stipulated that the legislation would take effect "on the day before the first day of polling for the next provincial parliament." This provision ensured that, even if the Bill were enacted earlier, its implementation would be aligned with the conclusion of the current legislative term.

Turning to slide 11, Adv le Roux indicated that his previous explanation also addressed the related query concerning the legislative timeline. He reiterated that, following the amendment, the Independent Electoral Commission (IEC) would be responsible for implementing the changes in line with the relevant schedules of the Electoral Act.

Timeline for Implementation of the Seat Increase
Mr Adams thanked the Chairperson and provided further clarification on the timeline for the proposed seat increase. He explained that, based on the projected legislative and constitutional processes, the amendment could be certified by September 2027. However, the next provincial and national elections were not scheduled until 2029, meaning that the new seat allocation would come into effect only at that time, should the seventh administration of the Western Cape Provincial Parliament complete its full term until then.

He acknowledged that an alternative option could enable an earlier implementation, previously alluded to. This would involve the dissolution of the Western Cape Provincial Parliament before the 2029 elections, triggering an early provincial election. If this course of action were taken, the newly constituted legislature would adopt the new seat allocation. In the absence of such a development, the amended number of seats would only take effect after the 2029 provincial elections.

Financial Considerations for the Western Cape Provincial Parliament
Mr Adams then addressed Ms Kaizer-Philander's question concerning the affordability of additional seats within the financial constraints of the WCPP. He confirmed that any increase beyond the current 42 seats would necessitate additional funding. The financial impact would include direct charges such as Members' salaries, constituency allowances, secretarial allowances, and Members' enabling allowances. Moreover, depending on the scale of the increase, there could be further financial implications related to office accommodation and seating arrangements in the Chamber.

To provide clarity on the practical aspects, he used the scenario of adding 13 Members, bringing the total to 55. He noted that the Chamber’s existing seating arrangement permitted a maximum of 60 seats, but with six permanent NCOP delegates, the effective capacity would be 54 or 55. An increase of 13 Members would require only one additional seat to be accommodated within the Chamber.

Office Accommodation and Administrative Impact
Mr Adams further explained that if the political parties continue with the existing office allocation model—where each Member was assigned a separate office—an additional 13 offices would be needed. At present, no additional office space is available on the fourth and fifth floors, which political parties currently occupy.

He also pointed out that an increase of 13 Members could impact committee operations. More committees could meet concurrently with a larger legislature, reducing scheduling conflicts caused by overlapping memberships. This would likely necessitate the recruitment of additional support staff, including one or two extra procedural officers, to manage the increased workload.

Furthermore, increasing the number of Members could place additional strain on administrative support services, such as the Members’ Affairs Office. He highlighted that the office currently had only two support staff and one supervisor. An increase to 55 Members would likely require additional staff to ensure adequate support for all Members.

Potential Adjustments to Chamber Layout
Mr Adams acknowledged that the Chamber’s seating arrangement was one of the few certainties, as the number of seats could be physically counted. However, he also outlined an alternative option to increase capacity further: reconfiguring the seating layout. Given that the existing benches were relatively large, a redesign could potentially accommodate more than 60 Members. However, such a modification would incur once-off costs, including new furniture and adjustments to the seating infrastructure, such as altering step placements.

Mr Adams, addressing Ms Stephens's question, explained that the last time the number of seats was determined was in 1999, when the population was 3.9 million, and it was set at 42 seats. Mr Adams further clarified that legislation provides for the determination of the number of seats before each provincial and national election. For most other provincial legislatures, this task falls to the IEC. However, under the current constitution of the Western Cape, this responsibility lies with the Western Cape Provincial Parliament itself.

He noted that, despite the population growing from 3.9 million in 1999 to 7.4 million currently, this increase had not been factored into the determination of the number of seats, which remained at 42.

Request for legal basis for provincial parliament dissolution
Mr Sayed thanked the Chairperson and clarified that his question had already been largely addressed, as it mirrored the concern raised by Ms Kaizer-Philander regarding the timing of the seat increase. He sought clarity on the legal basis for the dissolution of the Provincial Parliament and the need for a fresh election before the seat increase could take effect. Mr Sayed emphasised that his query was not from a legal perspective but from a broader understanding, as he had been reviewing the relevant legislation. He questioned whether the determination of the number of seats was directly tied to the number of registered voters, noting his understanding that the election process itself, rather than the population, determined how many seats were allocated to each party. He requested further assistance in interpreting the Act, as he found it unclear on this point.

Comment on population growth and cost implications of seat increase
Mr Walters provided his comment, acknowledging that the population size justified an increase in the number of seats within the legislature. However, he expressed concern about the cost implications, particularly given the current economic constraints. Mr Walters further highlighted the importance of managing expenses and maintaining control over the budget, rather than leaving such decisions to the IEC. He suggested that a constitutional amendment might be necessary to address the increase in seats and proposed that the legislature maintain control over the process to ensure accountability.

He noted broad agreement that an increase in the number of seats was necessary, with 48 seats seen as the most reasonable target. He suggested that a constitutional amendment could facilitate easier future seat increases, allowing for flexibility in response to population growth, while ensuring that the number of seats remained between 42 and a reasonable upper limit. Mr Walters emphasised the need for flexibility and control over the budgetary impact, ensuring that any increases could be managed responsibly. He asked if there would be any legal issues with such an amendment, particularly in terms of ensuring future flexibility without reducing the number of seats below 42 or exceeding reasonable limits.

Clarification on constitutional amendment mechanism
An official thanked the Chairperson and acknowledged the two questions raised. He noted that both were legal in nature and would be addressed by Adv le Roux. However, before proceeding, he sought clarity from Mr Walters, asking whether his question was specifically about including a mechanism in the constitutional amendment that would allow for an automatic increase in seats without the Western Cape Provincial Parliament having to undergo the current process each time.

Measured approach to seat increases
Mr Walters clarified that he was not suggesting an automatic increase in the number of seats. Instead, he proposed a well-considered and measured process that would be simpler than the current procedure. He emphasised that such a mechanism should be incorporated into the Constitution to facilitate future adjustments while ensuring clear limits on the maximum number of seats. He reiterated that reducing the number of seats should not be an option but that increasing them should be streamlined to accommodate population growth while maintaining fiscal oversight. Given that the province remained financially dependent on national allocations, he stressed the importance of managing expenditure responsibly while ensuring adequate democratic representation.

Adv le Roux addressed the Committee, stating that a written submission could be provided if further details were required.

He explained that while a provincial constitution could specify the number of Members of the Legislature, it could not determine the electoral system, as this was governed by national legislation. The electoral system was established under the Electoral Act, particularly in Schedule 1 and Schedule 1A. Once the number of seats was determined, a series of processes followed, including vote counting, designations, and allocations, all of which were prescribed by statute. Once election results were finalised, the allocation of seats to parties and individuals was determined accordingly.

Regarding the second question, he interpreted it as a suggestion to use a formulaic approach to determining the number of Members in the Legislature. This would involve a single constitutional amendment, after which future changes in seat allocations would be automatically determined based on a set formula rather than requiring repeated amendments to the provincial constitution. He noted that this approach had been considered in the bill's first draft, which proposed that the number of seats should be set at one for every 100,000 residents of the province. The House would then determine the final seat allocation through its rules and orders.

While he personally believed that the formulaic approach would pass constitutional muster, he cautioned that it was a legally uncertain area. He explained that various legal experts held differing views on whether the Constitutional Court would uphold such an approach. The key interpretational challenge lay in defining whether a provincial constitution could merely provide for the number of Members or if it was required to determine the number explicitly. If the Legislature itself determined the number of seats rather than the provincial constitution, it could create legal ambiguity.

He stated that, due to this uncertainty, pursuing the formulaic approach carries a level of risk. While he did not consider it unconstitutional, the Constitutional Court’s ruling on the matter was unpredictable. He therefore suggested that alternative approaches—such as the substitution or repeal approach—would carry minimal legal risk, as these had already been addressed in prior Constitutional Court rulings.

He acknowledged that the substitution approach would require a constitutional amendment whenever a change in seat allocation was needed, making it a more cumbersome process. However, it provided legal certainty, whereas the formulaic approach introduced interpretational risks. Ultimately, he left the decision to the Committee but recommended an approach with minimal constitutional risk.

Mr Bryant stated that he attended the meeting as an alternate Member and found the discussion important and insightful.

He emphasised that any decision to increase the number of Members in a Legislature or Parliament should primarily aim to enhance oversight capacity. He expressed concern over the current situation in the Provincial Parliament, where majority party members were often assigned to six or seven committees each. He noted that this was not merely a workload issue but a fundamental challenge to effective oversight. Given the number of committees each Member had to attend, conducting rigorous scrutiny of government activities became difficult.

He argued that, ideally, Members should be allocated to only one or two committees, allowing them to focus and engage more effectively. While he acknowledged that smaller parties inevitably had to distribute their Members across multiple committees, he asserted that this should not be the case for the majority party or the official opposition. He stressed that any decision on increasing the number of seats should be guided by the need to ensure that all committees were properly staffed and that Members were not overstretched.

Turning to Adv le Roux's presentation, he referred to page 11, which outlined the proposed timelines for the bill. He specifically questioned the one-month period allocated for committee deliberations on the version of the bill to be recommended to the House. He asked whether the deliberations taking place in the current meeting constituted this process and whether a resolution would be adopted at the end of the session. Alternatively, he enquired whether a subsequent session would be scheduled before the bill was presented to the House.

He concluded by stating that, in his view, the decision was significant and should not be rushed. However, he acknowledged that he was not an official Committee Member and would defer to the Chairperson’s guidance on the matter.

The Chairperson thanked Mr Bryant and stated that, to some extent, she had a few additional questions arising from his remarks.

She referred to the issue of National Treasury and the historical context of the matter, as raised by the Secretary. She enquired about the specific information that was still required and whether there was a realistic chance of obtaining it within the next few weeks. She linked this to Mr Bryant’s question on committee deliberations, asking whether this missing information was critical to the decision-making process.

She further addressed the funding issue, noting that some legislatures had received significantly larger financial allocations than others. She cited examples where one legislature had received R20 million while another had been allocated R40 million. Given that the IEC had allowed substantial increases in some provinces, she questioned whether the Committee should consider conducting a comparative financial analysis. This would help determine where additional funding was being sourced, which provinces were receiving more funding, and which were not. She stated that such an analysis was crucial, particularly in an increase in the number of Members, as it would have significant financial implications for the Western Cape Provincial Parliament.

She stated that Mr Walters had correctly pointed out that financial considerations were at the core of the discussion. She reiterated that the Committee needed clarity on the financial allocations to other provinces and whether similar support would be extended to the Western Cape.

She then referred to legal considerations raised in previous discussions. She asked whether a legal opinion was required on the effective date of any potential increase in the number of Members. Specifically, she enquired whether an amendment to the provincial constitution would need to explicitly state the date from which the increase would take effect, relative to the election date, or whether it would be considered automatic regarding the next election cycle.

She also noted that there had been two historical decisions regarding the number of Members. Initially, a formulaic approach had been proposed, but this had subsequently been abandoned in favour of setting a fixed number. The previous administration had conducted public participation and ultimately settled on six additional seats. However, that decision had lapsed with the dissolution of the previous Parliament.

She asked whether substantive changes had occurred since that decision was made. If the current Committee were to make a different determination, she enquired whether this could have potential ramifications, including the possibility of legal challenges or appeals.

She concluded that, while ongoing deliberations were important, a decision needed to be finalised eventually and avoided continuous reconsideration.

Mr Adams thanked the Chairperson and said he would ask Adv le Roux for input on the legal opinion.

Regarding the National Treasury’s input, he explained that Treasury’s submission to the IEC would likely have addressed the issue of affordability and other financial considerations associated with increasing the number of Members. He noted that, as Secretary and Accounting Officer, he had approached the Independent Electoral Commission IEC to request access to Treasury’s input on the matter.

He stated that the request had been submitted in 2024 and that, despite multiple follow-ups, no response had been received. He further indicated that the provincial head of the IEC had escalated the request to national counterparts, but there had been no feedback to date. He emphasised that the process had already taken over six months, given that the elections had been held in May 2024.

Addressing the issue of a comparative financial analysis, he confirmed that the intention had been to conduct a preliminary assessment based on available data. He noted that, as previously mentioned, only three provincial legislatures had responded to information requests, with only two providing actual figures. These figures indicated that legislatures that had increased their number of Members had incurred additional costs ranging between R2.1 million and R2.8 million per Member.

He clarified that these estimates were based solely on the increases in those two legislatures and that no information was provided on the specific financial variables considered in those calculations. He referred to the cost projections provided in the Committee’s spreadsheet, which outlined various scenarios for increasing the number of Members.

He stated that further attempts could be made to gather additional data from other legislatures but noted that the timing of responses was beyond the Committee’s control. He confirmed that the CFO had also made follow-ups on the initial request for information.

Regarding the legal opinion, he deferred to Adv le Roux for further insights in response to the Chairperson’s question.

Adv le Roux stated that it would ultimately be up to the Committee to decide whether further clarification or additional input was needed. From a legal perspective, he considered the question of when the Act would come into effect to be relatively uncontroversial. Based on public involvement processes and various government inputs, there did not appear to be significant contention regarding the issue.

He elaborated that if the effective date of the amendment was not clearly addressed, it could create complications for the Legislature. Without clarity, there was a risk that the provincial constitution would specify 48 Members while only 42 were seated in the Legislature until the next election. This could lead to legal challenges regarding the validity of the Legislature's decisions, with arguments that it was not properly constituted.

He stressed that it was, therefore, critical to ensure that the timing of the amendment’s implementation was handled correctly. The key consideration was determining when the amendment would legally take effect following the Premier's assent.

He explained that the approach taken in the Bill was based on section 108(4) of the Constitution, which states: “A provincial legislature remains competent to function from the time it is dissolved or its term expires until the day before the first day of polling for the next legislature.”

Accordingly, the proposed amendment was designed to take effect only when the current Legislature’s ability to function ended—specifically, when the new Legislature was constituted following an election. This ensured a seamless transition and avoided any potential constitutional inconsistencies.

He reiterated that the Bill's wording mirrored the Constitution's language to provide legal certainty on when the amendment would take effect.

Legal considerations on implementation timing

Mr Sayed thanked Adv le Roux for his response, particularly regarding the timing issue. However, he noted that the response had focused primarily on the Bill itself rather than the broader legal question of implementation. He argued that the Bill was still in draft form and had not yet been passed or assented to.

He doubted whether a constitutional amendment made during the Seventh Administration must necessarily wait until the Eighth Administration for implementation. Given that the amendment aimed to improve legislative capacity and serve citizens more effectively, he questioned why its implementation should be delayed. He therefore suggested that the Committee obtain a formal legal opinion on the matter that specifically addressed the Electoral Act rather than the Bill itself.

The Chairperson then invited any further follow-up questions and reminded Adv le Roux of her earlier query regarding the previous administration’s decision. She asked whether a different decision by the current Committee could create an appealable situation if the previous administration had decided based on a specific set of facts and nothing had substantively changed.

Adv le Roux confirmed that providing a written legal opinion to the Committee was no issue. However, he first sought to clarify the exact legal question, as lawyers need precision when formulating legal opinions. He summarised his understanding of the question: Can the Act be implemented without reliance on the Electoral Act, and is there an alternative legal process for giving effect to the amendment?

Mr Sayed interjected, stating that his question was straightforward: Can the amendment be implemented and given effect during the Seventh Administration without requiring an election?

The Chairperson suggested that Mr Sayed’s question was essentially the inverse of the one Adv le Roux had just articulated, meaning that both were asking the same legal question. She then reiterated her earlier query, asking whether a different decision by the current Committee—on the same facts considered by the previous administration—could pose potential legal risks, given that the previous decision had lapsed simply due to the change in administration.

Adv le Roux stated that the Committee and the House were fully entitled to make the appropriate policy decision, as no final decision had yet been made and no Bill had been passed. However, he could not comment on whether there had been any material change in the facts since the previous administration’s decision. He noted that while he had been present at the relevant Committee meeting, there had not been a clear presentation of the reasoning behind that decision, making it difficult to determine whether the underlying thinking or factual basis had changed.

Request for further information on financial implications

The Chairperson acknowledged the complexity of the matter and stressed the importance of ensuring that all concerns were properly addressed, given the long-term ramifications of the decision. She supported obtaining a legal opinion and sought the Committee’s agreement on proceeding with such a request.

She also requested a comparative financial analysis of the funding arrangements in other provinces, particularly focusing on those that had received additional R20 million and R45 million. She noted that a third province had been mentioned but had reportedly not received additional funding, and she expressed interest in understanding why that was the case.

Addressing Mr Adams directly, she enquired whether it would be possible to engage with Speakers from other provinces to gain insights into their financial models for accommodating increases in Members. She highlighted the significant increases seen in Gauteng and KwaZulu-Natal. She stated that understanding how these provinces had structured their funding would be particularly useful, given the financial constraints facing the Western Cape Provincial Parliament.

She asked the Committee whether there were objections to requesting this information in a future meeting. While acknowledging the need to finalise the matter at some point, she stressed the importance of allowing sufficient discussion to ensure a well-informed decision. She reiterated that a legal opinion was necessary, as it addressed key concerns of Members. Additionally, she emphasised the value of comparative financial data in assessing the feasibility of an increase in Members.

An official clarified the third legislature mentioned earlier, stating that they had indicated they had received an increase but had not specified the amount.

The Chairperson agreed that obtaining this information would be useful and noted that financial data was a matter of public record, making it accessible for further analysis.

Principle of proceeding with the Bill

Mr Adams then suggested that the Committee focus on making a principal decision regarding the direction it intended to take with the Bill. He explained that the House had passed a resolution to revive the Bill, and the facts surrounding the previous decisions were available to the Committee.

He proposed that, once the Committee had taken a principal decision, the administration would provide the necessary technical support to obtain the additional information required. He cautioned that if the Committee spent excessive time gathering technical details before making a decision, it could become a prolonged process. Instead, he recommended that the Committee deliberate on the facts before them, decide a way forward, and allow the administration to supply the supporting financial and technical details as needed.

The Chairperson asked the Speaker if there were any questions regarding the resolution and sought clarity on how best to structure the Committee’s approach to ensure that all relevant issues were included.

Mr Adams responded that he was uncertain whether the Committee had formally deliberated on whether or not to proceed with the Bill. He stated that this was the first decision that needed to be made. If the Committee decided to proceed, it would be necessary to engage the procedural officer to facilitate the necessary administrative support, including obtaining a legal opinion, financial implications, engagement with National Treasury, and infrastructure requirements linked to the decision. He emphasised that these were technical matters that would support, but should not cloud, the Committee’s decision-making process. The fundamental question remained whether there was an appetite to proceed, with the administration providing the required technical input thereafter.

Committee deliberations on the way forward

Mr Walters expressed his view that the Committee should proceed, as this was the general sense he had gathered from the discussion. He stated that the focus should now be refining and improving the final outcome rather than questioning whether to proceed.

Mr Sayed agreed with Mr Walters, stating that he also sensed broad agreement on proceeding. However, he emphasised that while the Committee might not necessarily agree on all the details, these could be addressed as part of the process. He noted that his earlier concerns regarding implementation timelines were not intended to halt the process but to ensure that such issues were carefully considered during deliberations.

Mr Herron interjected, raising concerns about the approach being taken. He stated that while legal and financial input had been provided, the Committee had not yet engaged in a substantive discussion on the core issue—namely, what problem it was trying to solve. He cautioned against simply proceeding based on the recommendation of the Sixth Administration or a mathematical formula, such as one Member per 100 000 or 150 000 residents, without deeper consideration.

He stressed that financial constraints had to be a central consideration, particularly given the country's and province's current fiscal challenges. He pointed out the contradiction between the current discussion and the debate during the State of the Province Address (SOPA), where the Chairperson had questioned whether Members would be willing to forgo their salaries to fund essential programmes.

Mr Walters stated there was a distinction between taking a principled decision to proceed with the Bill and later determining whether to support its implementation based on financial constraints or other considerations. He urged the Committee not to delay the process, stating that concerns about costs could be addressed later.

The Chairperson proposed a resolution to proceed with deliberations while gathering additional information. The Committee resolved to:

1. Proceed with deliberations on the Western Cape Constitutional Amendment Bill and the potential increase in seats.
2. Request a written legal opinion on the effective date of implementation.
3. Obtain comparative financial analyses from other legislatures.

A vote was taken, with Mr Herron formally noting his objection. The administration was then set a 14-day deadline to provide the requested information.

Update on the Children's Commissioner Appointment Process

The Chairperson then moved to the next agenda item: the upcoming expiration of the Children’s Commissioner’s term. She proposed seeking additional Committee slots to finalise the appointment before May. Members agreed, with Mr Sayed requesting a briefing on the Western Cape Provincial Strategic Plan 2025–2030.

The Chairperson welcomed these suggestions and invited the Procedure Officer to provide a status update on the Children’s Commissioner appointment process.

The Procedural Officer reported that the nomination process for the Children's Commissioner position was underway. Advertisements had been placed in mainstream newspapers, on the Western Cape Provincial Parliament website, and social media platforms. Members were also requested to share the call for nominations within their networks.

The closing date for nominations was set for Friday. After that, the list of nominees would be published in mainstream newspapers and on the same platforms used for the call for nominations. This would allow the public to raise objections, if any, against specific nominees.

She explained that any objections received would be communicated to the nominee concerned, who would be given the reasons for the objection and an opportunity to respond. The timeline included a two-week nomination period and a seven-day objection period. The Committee would then determine the timeframe for addressing objections, should any be received. She noted that two objections had been lodged during the previous appointment process.

Following this stage, the Committee would need to undertake the shortlisting, interview process, and final selection of the preferred candidate. She emphasised that the Committee must convene to establish the selection criteria and other relevant procedural matters, preferably during the constituency period.

Ms Kaizer-Philander interjected, proposing that the Committee formally mandate the Chairperson to scrutinise the parliamentary programme to identify available slots to complete the Children's Commissioner appointment process. She argued that this approach would prevent an additional meeting to determine suitable dates, ensuring that the Committee could meet the deadline efficiently.

Adoption of Minutes

Minutes Dated 14 February 2025

The Chairperson moved to consider and adopt the Committee’s meeting minutes from 14 February 2025.

The Chairperson accepted the mandate and committed to providing a clear timeline and feedback at the next meeting. She also reminded Members that the next meeting was on 25 March 2025, during which updates on the Children's Commissioner process would be provided. The advertisement phase would still be ongoing at that stage, but the Committee could review the progress made.

Mr Walters seconded the proposal regarding the Chairperson’s mandate and the adoption of the minutes. He jokingly remarked that the meeting had "ruined" their Valentine's Day.

The Chairperson responded humorously, stating that she enjoyed spending Valentine’s Day in political meetings. She then confirmed that the minutes were accepted as a correct record of the meeting.

Closing remarks

The Chairperson reminded Members that they would soon receive all nominees' curricula vitae (CVs) for the Children's Commissioner position. She urged Members to review them as they were received to avoid an overwhelming backlog closer to the shortlisting phase.

With no further resolutions or matters raised, she thanked Members for their contributions and adjourned the meeting.

The meeting was adjourned.