My Vote Counts judgement impact; Regulations amendment

Meeting report

The Chairperson noted that the meeting would cover input from the Legal Advisor on the Cape High Court judgement; discussion on the 21 written submissions received; how to manage the amendment of Regulations which has been raised as a gap by many submissions; and the programme up until submission of the Bill to the National Assembly.

Submissions on the Draft Bill
21 written submissions had been received. The 7 and 8 November had been set aside for public hearings. The Chairperson asked if the Committee wanted any of the submitters to make an oral submission to the Committee. His proposal was that all 21 submitters be given the opportunity to give oral input. Black First Land First had been promised the opportunity to give input and that organization would definitely be invited to make a submission.

Mr A Lees (DA) agreed that all submitters be given opportunity. Those who did not want to make an oral submission should not be forced to do so.

Mr T Godi (APC) agreed with the Chairperson that Black First Land First be afforded the opportunity to make a submission. However, in the first phase, the Committee had heard submissions. For the second phase, he suggested that only those submitters who took the matter forward should be invited and not those whose submissions, even if substantive, would take the Committee back over work that had already been completed.

Mr N Singh (IFP) agreed with Mr Godi. He suggested that the drafters of the Bill should present the summary of the 21 submissions and then the Committee would know if the submissions actually spoke to the draft Bill or were general inputs. He did not want to entertain people who were simply taking a second bite at the cherry and were simply taking advantage of the situation. He repeated that the Committee should only hear from those that would take them forward with the draft Bill.

Mr M Dlamini (EFF) suggested that all the submitters should be invited to see how far the Committee had gone but the invitation should make it clear that the Committee wanted to hear only how the matter could be taken forward. Presenters could not take the Committee back again. However, he did not want to see a situation similar to the Land First Black First who said they had not been given the opportunity to present.

Ms C Ncube-Ndaba (ANC) stated that some people had already been given an opportunity to give input to the Committee, such as My Vote Counts, and it would be unfair for them to get another opportunity to make submissions. If they had anything that they wanted to say, they should be told to write down their submissions. Otherwise it would be like the Committee was starting afresh. Those like Land First Black First who had not made a submission should be allowed to come. The Chairperson and his staff should look at the submissions so that the Committee did not repeat what it had done. Those other people who had been there and had made submissions should not be entertained by the Committee for a second time. They would go out and get another view and come back and make another submission. She did not agree with that one. She supported the view that the Committee should not give them a second bite. If they had anything to present, they should just write it down and the Committee could look at it.

The Chairperson tried to marry the options on the table. The first point was that he agreed that those who had not presented should be given an opportunity to present. The proposal that he put on the table was that all those who had previously presented, such as My Vote Counts, be restricted, in that they be given an opportunity to talk to new matters and to gaps. They could not reintroduce the whole subject. The Committee would be very strict and would insist that they talk to the Bill on the table, and any gaps. Land First Black First would have the opportunity to present fully. He imagined that 60% of the 21 submitters had already presented to the Committee. He asked if such a proposal would be acceptable to the Committee.

Ms Ncube-Ndaba said that the proposal was acceptable, but only if presenters did not raise general issues and were stopped if they spoke about anything other than the Bill as it stood.

The Chairperson said that when the submitters started their submissions, they would be reminded to talk to the Bill and new matters only. That should save some time for the Committee. The Chairperson stated, for the record, that the Committee would be inviting all submitters. The Committee would afford those who had not presented before, the opportunity to make a full submission, but not as if there were no document on the table. Those that had previously presented, would talk to the Committee about where either they believed that the Committee had ignored them or had not taken their submissions seriously, and the Committee would defend its position. As indicated by Mr Lees, submitters would be invited to present but nobody would be forced to make a submission as it was not compulsory.

The Chairperson referred Committee Members to a submission from British American Tobacco in their folders. The submission was received on 19 October 2017, whereas the closing date had been 16 October 2017. He had indicated to the Secretariat that he would ask the Committee for its wisdom on the matter. British American Tobacco had not presented previously and the Committee would need to go back to them and inform them on whether it had been accepted or not. His view was that the Committee did not want to corrupt the process so he was reluctant to accept the submission. The late submission was their own fault.

Mr Godi stated that there was no problem there as they had missed the closing date.

The Chairperson asked the Committee if it were the view of Members that the submission could not be accepted. The Committee agreed.

Regulations related to the draft Bill on Political Party Funding
The Chairperson stated that valid criticism had been received that Clause 23 made reference to issues that were not in the Bill but that would be catered for in the Regulations. In his own interaction with people, and in the written input, members of the public had stated that it was difficult to comment without having sight of the Regulations. Initially, the Committee had decided to put the Regulations out on 30 November 2017. The current Regulations were still in force, but the Regulations would be circulated and Members would be requested to provide comment. The revised allocation split and the ratio would have to be included in the Amendments to the Regulations. The new and revised threshold for disclosure would also need to be included, i.e. below what amount would it not be necessary to disclose. An upper limit cap for the individual donations would have to be written into the amended Regulations. The current Regulations contained how to utilise unspent funds, etc. The wording for the amended Regulations would be written in the draft to be circulated to Members. For example, the principle of the ratio would be written in, but not the figure. Figures would be inserted after they had been determined by the Committee. The Committee would talk to the Regulations when it next met on 3 November 2017. He asked Legal Services and the Content Advisors to prepare the amended Regulations.

Mr Singh stated that not only the Committee, but also the public, wanted to know those details and those would only be contained in the Regulations. There had been talk about unconstitutionality and that could not be determined until the Regulations were finalised. He asked a process question about public comment on the amended Regulations. Was it legally necessary to go out for comment? He knew that Bills had to go for public comment but Committees had not been as thorough in sending Regulations out for public comment because Ministers were usually delegated the responsibility of drafting regulations. That had been a bone of contention. Could Legal Services provide some advice on that? If the Committee were obliged to request public comment, that would delay the process.

The Chairperson asked the Legal Advisors to advise them. Regulations were secondary legislation and not generally put out for public comment but the Committee could make them available to the public, who could provide written input if they wished to do so. However, he did not see a need to send out the amended Regulations and invite public comment that was a three-week process.

Prof Halton Cheadle, Legal Advisor to the Committee, informed the Chairperson that Clause 24 of the Bill specifically stated that the Regulations under the repealed Act were deemed to be Regulations of the Act that they were drafting and would be applicable to the new Act. As far as the public process was concerned, the public had been told that the existing Regulations were deemed to be the Regulations under the new Act subject to three or four changes, one of which was the change to the formula – which had been substantively discussion in the debate on the Bill and in the submissions. The second was the threshold for disclosing donations and then the capping of donations. The split in dealing with the funds carried over from one year to another already existed in the Regulations.

Prof Cheadle referred the Committee to Clause 23 of the Bill that identified two mechanisms for Regulations. The one mechanism was the President acting on a resolution of the National Assembly. That referred to specific sections which applied to the prescribed formula, the threshold, the purpose and any additional purposes. The second mechanism was administrative regulations dealing with forms, and the like, and these were to be dealt with by the Independent Electoral Commission (IEC). The Bill gave the IEC the power to draw up administrative regulations, such as how to disclose, what to disclose and so on. As far as the process was concerned, the public had been informed as to the structure of the statute and when the Bill was passed by Parliament, the Regulations would also be passed.

The Chairperson asked if the Committee was satisfied.

Mr Godi needed clarity and referred to the briefing provided by the Legal Advisors. He noted the first point that the President might, by proclamation in the gazette, make Regulations. Point 3 concerned him. Before making regulations, the IEC had to go out for public comment. Was his understanding that they were two separate processes correct?

It was confirmed that he was correct.

Prof Cheadle explained that Clause 23(1) related to the key concepts such as the formula and the threshold but the second set of Regulations were those that were administrative which the IEC had to manage. The process relating to the President would be on resolution of the National Assembly and an Ad Hoc Committee would have to be established. If the formula needed to be changed in the future, that Ad Hoc Committee would have to propose changes to the Regulations and publish those for public comment. It therefore related to the future.

Mr Godi asked about the process following the Amendments to the Regulations. Once the Ad Hoc Committee had made the changes and finalised the amended Regulations, what would need to be done? Would the Regulations go out for public comment, or would the Regulations go straight to the National Assembly?

Mr Michael Prince, Parliamentary Legal Advisor, explained that ordinarily Regulations would be published after the Bill had been enacted. Clause 23 related to that process. In the case that the Committee was dealing with, those who had made submissions had stated that they wanted to see the Regulations during the process of drafting the Bill. The public had been instructed to look at the current Regulations as they were part of the Bill, but the public submissions had demanded that the Amendments to the Regulations be deliberated in the Ad Hoc Committee as part of the Bill. The deliberations in the Committee were part of the public process as the meetings were open to the public. So, instead of two separate public comment processes, the two would happen together. As the meetings were open to the public – that was the public process. The National Assembly would also deal with the Bill and the amended Regulations in a single process, unlike the normal process of dealing with the Act first and then the Regulations. The advice of Parliamentary Legal Services was that as long as the Committee dealt with the regulations in the current deliberations and that meetings were open to the public, the Regulations did not have to be sent out for a three-week public comment process.

The Chairperson understood that there were two distinct set of Regulations: administrative and political. The Chairperson suggested that the political Regulations be discussed in the meeting of 3 November 2017, which would be an open process and the Committee would allow the public to have sight of the proposed Regulations. The Committee would allow for written input should a South African feel strongly about the proposed Regulations. They could provide written input before the amended Regulations went to the House on 21 November. The public were only interested in the four points raised previously. He stated that a draft would be circulated to Members and they could thrash it around on 3 November 2017.

Dr P Mulder (FF+) supported the proposal.

The Chairperson agreed to re-circulate the current Regulations and to add the Amendments, with space for details to be added after the next meeting, such as the exact cap and so on. Members could discuss the details with their caucuses in the meantime. By 3 November 2017, the Committee would have a raw first cut. He hoped that members of the public did not feel that they were being left behind.

The Chairperson informed the Committee that he had invited Parliamentary Legal Services to discuss the judgement in the My Vote Counts High Court case and whether it had any impact on the work being done by the Ad Hoc Committee.

Impact of the My Vote Counts judgement by Parliamentary Legal Services
Mr Nathi Mjenxane, Parliamentary Legal Advisor, noted that a briefing note had been emailed to the Committee the previous afternoon and that he and his colleague, Michael Prince, would be speaking to that document.

Mr Mjenxane explained that he would be discussing the two court judgements as what had come to be known as the My Vote Counts (MVC) judgements. The High Court case was MVC v Speaker of the National Assembly and Chairperson of National Council of Provinces (NCOP), and other was before the Constitutional Count, MVC v the President, Minister of Justice and Others.

Mr Mjenxane read Section 32 of the Constitution. MVC was a non-profit organisation whose purpose is to improve accountability, transparency and inclusiveness of elections and politics in South Africa. The basic premise was that Section 32 of the Constitution entitled citizens to have access to in information about private funding of political parties. The information was required for the effective exercise of a citizen’s right to vote in the elections and to make political choices. Those rights arose from the Constitution. The Constitutional Court determined that the challenge was premature and that the applicants should have approached the High Court to challenge the constitutionality of the Promotion of Access to Information Act (PAIA) to the extent that the Act did not provide access to information about the funding of political parties.

In the Constitutional Court, MVC argued that Parliament had failed in its constitutional obligation to enact legislation that provided for access to information and that the Promotion of Access to Information Act was inadequate for access to information about the private funding of political parties. MVC argued that Parliament should be ordered or instructed by the Constitutional Court to enact suitable legislation. The Speaker and the NCOP Chairperson opposed the case arguing that Parliament had enacted the Promotion of Access to Information Act.

The Court’s decision was a split judgement but the majority judgement was that PAIA was not the only legislation that made access to information available. PAIA was one form of access to information. There were others. The Court dismissed the applicant in that Parliament had discharged its obligations with PAIA and that the applicant should approach the High Court about the inadequacies of PAIA.

MVC subsequently approached the High Court which, in its judgement, stated that PAIA was inadequate to the extent that it did not provide access to information as required by the applicant. The Court could not fit political parties into the two categories in PAIA. The Court ruled that it could not instruct Parliament, in line with the separation of powers, on how such disclosure should be made. However, amendments should be made to PAIA to bring it in line with Section 32 and what the applicant had asked for. Mr Mjenxane read from the judgement. PAIA was inconsistent with the Constitution. The Constitutional Court had been asked to validate the High Court ruling, but had yet to do so.

The advice of Parliamentary Legal Services was that PAIA had to be amended. The Bill in process in the Ad Hoc Committee on Funding of Political Parties would not fulfil the requirements of the judgement.

Discussion
The Chairperson asked if what the Committee had been engaged with since the middle of June, affected by the judgement. Yes or no? If it was, what should they do? The Ad Hoc Committee could not remedy the defect in PAIA. Or, did the current work have to be scrapped and the work in progress done in terms of PAIA as per the judgement? Was the work being done by the Committee unconstitutional? He believed that the terms of reference for the Committee’s work were very specific. The Committee had decided that local government needed to be included in the disclosure process, but in other legislation. The real question was if the Committee proceeded with its work, would it be in contempt of the court judgement?

Mr Singh’s view was that there were two separate issues, but that the work the Committee was doing would complement PAIA as it would actually contain the information that PAIA would refer to and which would need to be publicly accessible. Although the Committee’s work was complementary to PAIA, the Committee had nothing to do with PAIA, and it was the work of Parliament to comply with what the Court had ruled.

Mr Godi believed that the matter raised was one for Parliament and not for the Ad Hoc Committee. Parliament should not get the false notion that the Act currently under review gave effect to the High Court judgement and that Parliament did not have to address the challenges of PAIA. A Member of Parliament had stated in a television interview that there was no need to review PAIA as the Ad Hoc Committee was busy with legislation. The work of the Committee was not affected by the judgement of the Court. PAIA responded to a particular section of the Constitution. PAIA still needed to be corrected in terms of its categories, according to the judgement.

Ms L Mathys (EEF) believed that there would be a bit of an overlap. If PAIA permitted access to information, the legislation that Committee was busy with would provide that information. Should any organisation want to access that information, it had to be reported somewhere. Since there was an overlap, she thought it might be advisable that the Committee be guided. The question was what information the public wanted to access. Parliament had to have systems in place to allow that reporting so that the information could be accessed.

Mr Mjenxane replied that his answer was that the Committee should definitely not stop the process as the work was complementary to PAIA. Nevertheless, PAIA had to be amended by Parliament. Whatever was included in the Political Party Funding Act would provide the information required by PAIA. The Committee would have to be guided, or persuaded, by the principles noted by the Court, but, of course it was not responding to the actual instruction of the Court. The Court had noted that there was additional legislation that provided information and that the work of the Committee fell into that arena.

Mr Michael Prince, Parliamentary Legal Advisor, noted that the Committee sought to regulate political party funding. PAIA gave effect to the constitutional obligation of access to information. In this case, the High Court had said that Parliament needed to add a third category about political parties in PAIA because that was absent. He reminded the Committee that the Constitutional Court had yet to confirm the judgement of the High Court. The reporting agent, in terms of PAIA, would be political parties, whereby anybody in the public could directly access information from a political party. That was their right according to the High Court judgement. Parliament had to give effect to that right through the amendment of PAIA. What the Ad Hoc Committee sought to do was to regulate political party funding. The overlap was in Clause 10 that dealt with disclosure. Disclosure would be about making information available, but it could also be a counter to corruption. That was why disclosure was in the Funding of Political Parties Bill. The purpose of disclosure was slightly different to that in PAIA. The reporting agent for the Committee’s Bill was also different. In terms of the Committee’s proposal, parties reported to the Independent Electoral Commission. PAIA would talk to information directly from political parties and not by an agent. Parliamentary Legal Services had proposals to ensure that the Bill spoke even more directly to PAIA. People would always have their rights in terms of PAIA. That right would be clarified in the Bill before the Committee.

The Chairperson noted that the legal advice was to continue with the Bill and that Parliament still had an obligation to, somewhere else, deal with the PAIA matter.

Committee Programme
On 3 November 2017, the Legal Advisors and the Content Advisors would provide a formal briefing on what had been communicated to the Committee via the 21 submissions. The Committee would also, on that day, start its discussions on the political aspects of the Regulations, such as the 90/10 split.

On 7 and 8 November 2017, the Committee would hear oral submissions. He reminded the Committee, and the public, that the Committee would be lenient with those who were making a submission for the first time, but those who had done so previously, would have to strictly adhere to comments on the Bill in its current format, and anything that the submitter believed that the Committee might have left out or where the Committee had taken an opposite view. The Committee would be very strict in how it engaged with those who made oral submissions. The Chairperson explained that the time had been set down for 9:00 to 13:00, but the meetings might need to continue whilst the House was sitting, and a preliminary request for such a concession would be submitted.

On 10 November 2017, National Treasury and IEC would brief the Commission on their readiness or the inability to do whatever it was that they needed to do.

On 14 to about 21 November 2017, the Committee would go into session where they would prepare everything required for Parliament.

The Chairperson stated that if there was agreement, this would be the basis for going forward.

All members of the Committee were in agreement.

The Chairperson stated that all Members of the Committee would have to do their own reading, but from his own reading of what had come out in the discussions, Members needed to apply their minds about the equitable and proportional part of the funding and whether it was constitutional. It had to make everyone happy. The Committee needed to have a discussion on the threshold and reach agreement on an amount. His understanding of the threshold was that the Committee did not want to encumber the political parties, or anybody, to disclose everything, such as the R1 and R2 transactions. There should be a limit under which certain amounts need not be disclosed. The Committee needed to have a discussion on the matter as certain people had said that if the Committee included a threshold, it would defeat the whole aim of total disclosure. What was a pragmatic level to exclude transactions? The upper cap of how much an individual could donate had to be determined. Political parties had to brainstorm the cap and he was hoping that they would find a suitable limit. The other major issue was timeframes. The Committee had said it would be disclosed once a year and quarterly in election years. There seemed to be a sense that once a year was not sufficient. He requested that Members engage fully with people who came to present at the public hearings.

He invited comment or advice from Members regarding content to be discussed.

Mr Singh noted the substantive submission from the South African Local Government Association (SALGA). Had the Committee catered adequately for the medium-term proposals by SALGA?

Dr Mulder noted that the Committee had been running in accordance with its planned programme but he was concerned about Parliament’s busy programme in the last few days before the December recess.

Mr Godi thought a substantive matter was the Regulations. His concern was also around time, and the Committee should try to speed up things, if possible, so that the matter was wrapped before the House rose. Other than the public hearings, the Committee only had two or three substantive issues to discuss.

Mr Lees said that it was not the end of the world if they could not finish the legislation in the current session as they could go back to the House and get an extension.

Mr Dlamini was also concerned about the congested schedule in the House. There was also a danger of rushing the Bill as the Act would impact on political parties. The Committee should move at a measured pace, but should include necessary issues so as not to have a weak Bill that would give problems.

Ms Ncube-Ndaba agreed that an extension might be a good idea and would be better than rushing. She did not want the Bill to be challenged.

The Chairperson took note of the inputs, saying that the Committee would take the route of extending the process to the following year only if needed, but he assured the Committee that the work would not be rushed.

Mr J Steenhuisen (DA) said that he served in the Programme Committee and noted that the Committee might be crowded out by items that the Executive wanted to push through the National Assembly. Only nine pieces of legislation had been passed that year and so there was a rush to up that number.

The Chairperson was quite sure that the Committee was strong and competent enough to take the Executive head-on because its legislation was about democracy. A discussion document on the Regulations would be sent to Members. The programme would be sent out to Members and the hearings would take place in the Old Assembly Chamber. The media was welcome to attend every day.

Meeting adjourned.