Electoral Amendment Bill: public hearings

Meeting report

Opening remarks by the Chairperson

The Chairperson indicated that the Con Court gave Parliament 24 months to amend the relevant electoral legislation, to ensure that each eligible South African is allowed to contest Provincial and National elections, even if they do not belong to a political party. The Committee, through the Minister of the DHA, embarked on a process to comply with this judgement. Both were assisted by the appointed Ministerial Task Team, which was composed of experienced individuals with an extensive interest in the subject.

Following extensive work done, the Minister tabled the Bill to Parliament on January 10, 2022 and it was then referred to the Portfolio Committee. Thereafter, the Committee consolidated a programme for the process of public engagement on the Bill, which will begin from 7 March 2022. He encouraged all citizens to make input on the Bill during this period. Once the public participation process is complete and the Committee has concluded its deliberations on the input, it will then table the Bill to Parliament. 

One South Africa Movement submission on the Electoral Amendment Bill

Ms Mudzuli Rakhivhane, Spokesperson, One South Africa Movement (OneSA), briefed the Committee on OneSA’s submission on the Amendment Bill. To begin with, she indicated that OneSA is a collaborative social movement that is committed to initiating change in five areas: education, entrepreneurship, equity, the environment and electoral reform.

OneSA is of the belief that the New Nation Movement Judgement serves as an opportunity for broad and transformative electoral reform, from the current proportional representation system to a constituency-based system, which includes independent candidacy in Provincial and National elections. The organisation feels that the Amendment Bill, in its current form, not only fails to rise to the transformative occasion but it has the potential to discourage citizens from voting.

During the presentation, she highlighted OneSA’s four main objections, which are:

• The discarded vote
• Independent candidates limited access to 200 seats in Parliament
• Qualifications for independent candidates to contest elections
• Vacancies

The discarded vote

Ms Rakhivhane expressed that the proposal that independent candidates will only be allocated a regional seat, if they receive enough votes to meet the first or second quota of votes per seat in the region they are standing for, will lead to the additional votes received by an independent candidate being discarded or wasted. To solve this challenge, OneSA suggested that the Committee support the People’s Bill proposal that surplus votes be transferred from one independent candidate to another.

Independent candidates limited access to 200 seats in Parliament

In terms of the Amendment Bill, independent candidates are not able to contest the 200 National seats in the National Assembly. Instead, an independent candidate may only contest the Regional seats in the National Assembly. This, OneSA believes, limits the right of independent candidates to contest elections in terms of s19(3)(b) of the Constitution and in turn limits the right of citizens to vote. Once more, OneSA referred the Committee to the People’s Bill, which allows for independents to contest for all 400 seats in the National Assembly.

Qualifications for independent candidates to contest elections

Clause 4 of the Amendment Bill seeks to introduce qualifications for Independent Candidates’ to contest Provincial and National elections, where they will have to both submit a minimum number of signatures to the Independent Electoral Commission (IEC) and pay a minimum deposit that will be prescribed by the Commission. OneSA believes that this criteria will limit the rights to contest elections; will indirectly discriminate against less affluent potential candidates; and unjustifiably limit the right to dignity.

Vacancies

In the event of a vacancy in a Legislature of a seat allocated to an independent candidate, the Amendment Bill provides that the seat will not be filled until the next National and Provincial elections. Leaving the seat of an independent candidate unfilled in the event of a vacancy deprives the voters who elected that candidate of representation in the Legislature. OneSA recommended that by-elections, in the event that there is a vacancy, be permitted in the Bill.

The Chairperson thanked OneSA for its submission and indicated that it provide the Committee with added information.

African School of Governance submission on the Electoral Amendment Bill

Ms Zarina Prasadh, Director, African School of Governance (ASG), briefed the Committee on the ASG’s submission on the Amendment Bill. During her briefing, she expressed the ASG’s criticism of the process followed by the DOH and Parliament, regarding the drafting of the Bill. More specifically, the fact that whilst the Minister had instructed Senior Counsel to draft the Bill according to the minimalist option when Cabinet had not approved either option. This, according to the ASG, is an indication that the Minister himself had made the decision to follow the minimalist option. She added that if he did not make the decision, he should account for who made the decision and why.

Additionally, the ASG took issue with the six-week period allocated for public participation, as it felt that it would not be sufficient for members of the public to make meaningful input into the Legislation.

The ASG mentioned that the current closed-list system utilised in the country does not allow for voters to hold elected officials (in this case Members of Parliament (MPs) and Members of the Provincial Legislature (MPLs)) accountable. Instead, it recommended that the Bill include an open-list system, which will also allow for voters to vote for their preferred candidate.

The ASG submitted that the current criteria set for an independent candidate to contest Provincial and National elections will make it impossible for them to participate fairly in elections.

She highlighted that the Bill in its present form has failed to comply with the ruling of the Con Court – as it does not support the core democratic values of fairness, inclusivity, transparency, openness and accountability.

The Chairperson opened the floor for discussion

Discussion

Mr A Roos (DA) clarified that the Private Member Bill was withdrawn by Mr Lekota.

He mentioned that party representatives in Government are expected by their voters to both implement the policies the party campaigned on and to represent the party’s values. This, he believes, represents a form of accountability to voters. As such, he asked OneSA how voters would be able to hold an independent candidate who has received votes through transfer from another candidate, to account.

Ms A Molekwa (ANC) mentioned that the Committee has remained committed to adhering to the Con Court ruling and ensuring that all processes are followed. It has also worked to ensure that civil society and all other relevant stakeholders are able to make submissions without fear or favour. Once all the submissions made during the public participation process are received and compiled, the Committee will deliberate on the Bill. She assured the representatives that the Bill will ensure that independent candidates are able to contest elections.

Ms L Tito (EFF) indicated that the Committee will embark on a National public participation process, which will be fair and transparent.

Ms L van der Merwe (IFP) said that the Committee is also concerned about the short timeframe to complete the process but it is aware that it must have an extensive public participation process. She clarified that the Committee has not engaged on the Amendment Bill yet, as it first wants to hear from the public.

She indicated that the Committee is also concerned about the possible disparity the deposit requirement will create between independent candidates and political parties, particularly as it is easier to raise money for the latter. She asked whether only requiring candidates to submit a list of signatures to contest elections will be sufficient to prevent an excessive number of candidates from participating.

She asked OneSA how an independent candidate will be able to represent him/herself in a Provincial Legislature and the National Assembly at the same time.

Regarding the wasted votes, she said that the transfer of votes from one candidate to another may undermine the will of voters.

Ms T Legwase (ANC) assured the stakeholders that the Committee will finalise the Bill accordingly.

Mr B Pillay (ANC) requested that the speakers use the time allocated to make submissions and recommendations, rather than using that time to take a swipe at how Parliament has run this process.

On the filling of vacancies, he asked OneSA if it had suggested that there be a by-election every time there is a vacancy to an independent seat. Additionally, he asked how Parliament would be able to accommodate the process of by-elections.

He highlighted that independents are being included in contesting Provincial and National elections.

He was not in agreement with the proposal to allow a transfer of votes from one candidate to another and termed it as being both unconstitutional and undemocratic. Voters are expected to vote for one candidate. He advised that if an independent wants to form a coalition with other candidates, then he/she should rather form a political party. 

The Chairperson indicated that today’s meeting is the beginning of the Committee’s public consultation process and more deliberations will be had in the coming weeks. He added that all the issues raised during the meeting will be documented and will form part of the Committee’s deliberations on the Bill.

One South Africa Movement Response

Ms Rakhivhane said that regarding the transfer of votes, OneSA supports the proposal in the Private Members Bill which states that any potential independent candidate will have to declare, beforehand, who he or she will transfer their surplus votes to. This is similar to the instance where a vote for a particular leader will also contribute to the election of the other candidates in the same party.

Referring to accountability, she said that in a constituency-based system, MPs will be directly accountable to their constituencies.

She highlighted that the Committee should not treat the public participation process as a tick box exercise, rather, it should ensure that it is meaningful. As the Bill has significant implications, she requested that the Committee present the public with more options, including the Private Member Bill, which makes mention of having a constituency-based system. She urged that the Committee enact legislation that is comprehensive and deals fully with electoral reform. This will prevent future litigation on the electoral system.

She asked whether the Private Member Bill had been withdrawn or voted as being undesirable by the Committee. 

She clarified that the purpose of the presentation was to inform the public on how the process has unfolded thus far and not to take a swipe at it.

Regarding the vacancies, she mentioned that by-elections are run in municipalities whenever there is a vacancy and as such, she did not understand why there would be a difficulty in having by-elections for the National Assembly, particularly as it has a smaller number of representatives. She underlined the importance of having by-elections, to ensure that citizens are represented.

Ms Prasadh asked for clarity on whether the Private Member Bill was withdrawn or if it had been voted as being undesirable, as minutes for a Committee meeting indicate that it resolved not to continue with the Bill; as it perceives the legislation not to be suitable.      

With the four-month timeframe, she asked if there is enough time to embark on a meaningful public participation process.

Responding to Mr Pillay’s comment on independents, she said that the Con Court required that independents be substantively included and not just accommodated.

She indicated that the ASG would support a condonation application to the Con Court only if both the Private Member Bill and Amendment Bill are presented to the public to make a decision.

The Chairperson said that the Committee will respond to the questions asked to it towards the end of the meeting.

Submission by Mr Zolani Zonyane on the Electoral Amendment Bill

Mr Zolani Zonyane briefed the Committee on his submission regarding the Amendment Bill.

In his submission, Mr Zonyane highlighted the importance of substantively including independents in Provincial and National elections. In the main, Mr Zonyane objects to the fact that the Amendment Bill makes political party candidates superior to independent candidates. One of his proposals is for the Committee to review Schedule 1(A) of the Amendment Bill, as he believes that it gives political parties supremacy over independent candidates. Furthermore, he believes that it contradicts s1(a) of the Constitution, which makes reference to the achievement of equality in the country.

Referring to s31b of the Amendment Bill (which states that a prescribed declaration must be signed by an independent, confirming that he or she has not been a member of a political party for three months preceding the nomination), he indicated that it has an element of exclusivity, as it takes away the rights of non-political party-aligned citizens who might have left their parties three months or less, preceding their nomination.

Submission by Citizen Parliament First Nation on the Electoral Amendment Bill

Mr Mkangeli Matomela, Convenor, Citizen Parliament First Nation (CPFN), briefed the Committee on its submission regarding the Amendment Bill.

In his submission, he indicated that the definition of what constitutes a political party should be expanded, to allow for Non-Partisan Citizen Associations (NPCA) and independent candidates to participate in Provincial and National elections. This, he believes, will ensure greater representation of citizens in Governance structures. Further, CPFN proposed a model of a 75% allocation of seats in governance structures to be allocated to independents and non-partisan citizen associations, while 25% is allocated to political parties. These additions would also ensure that citizens are better able to hold their elected officials to account.

The CPFN, in 2015, made a submission to the Constitutional Review Committee in Parliament, that the current Electoral Act should be amended to allow for citizens to nominate constituency representatives, directly to Parliament. As the seats will belong to the citizens who nominated the candidates, they will be able to recall them at any time.

He also indicated that the CPFN does not agree that independents should be made to pay a monetary deposit, in order to be eligible for candidacy in elections, as it opens the door for individuals to be beholden to private interests.

He highlighted the short timeframe allocated for public consultation on the Bill. He requested that the Committee ensure that citizens are provided a fair and transparent process. Additionally, he called for Parliament to meet the deadlines set by the Con Court in drafting and implementing the Bill.

The Chairperson mentioned that Parliament had sufficiently read the Con Court Judgement.

Discussion

Mr Roos asked Mr Zonyane to clarify whether he was suggesting that a person should be able to stand as an independent whilst also featuring on a political party list. If so, he believes that this defeats the purpose of standing as an independent.

He asked if there is an instance where the requirement to pay a monetary deposit has prevented an independent from contesting in an election.

In addition, he asked if the transfer of votes will provide the receiving independent an advantage.

Ms Tito asked whether the citizens will have a right to recall a representative in the proposed Citizens’ Parliament.

Mr M Lekota (COPE) indicated that he had not withdrawn his Private Member Bill from Parliament. He was disappointed that the Bill had been removed, as citizens will not have the opportunity to discuss it. This, he said, goes against the democratic principle of meaningful public participation. If an organisation were to go to the Con Court, citing that it had not been given a chance to participate in the process, he would support it.

Ms Legwase asked if removing the requirement for an independent candidate, to not be a member of a political party within the last three months, would not create confusion. Additionally, she asked if it would disadvantage political parties.

Mr Pillay confirmed that Mr Lekota did not withdraw the Private Member Bill; rather, after extensive deliberations, the Committee decided not to continue with the Bill. He added that the Ministerial Advisory Committee (MAC) did include input from the Private Member Bill.

He underlined the importance of noting that an independent candidate is someone who has chosen to contest elections alone and not through a political party and the transfer of votes would defeat this purpose. An individual who wants to contest in elections should decide if they want to do so as an independent or through a political party. 

He asked who the surplus votes should be allocated to, once an independent has met the threshold for a seat. Additionally, he asked the CPFN what it was proposing. 

Considering that independents currently have to pay a minimum deposit to contest in Local Government Elections, Mr Pillay asked why this should not apply in Provincial and National elections.

The Chairperson asked what their views were on the impact of the Political Party Funding Act (PPFA) on independent candidates.

Response

Mr Zonyane said that he did not imply that independent candidates should not make declarations, rather, he meant that the declaration should not be used to exclude independents from contesting elections.

He reserved his comment regarding the PPFA.

Mr Matomela advised that if the Committee declared the Private Member Bill as being undesirable, then Mr Lekota should present the Bill as a submission that seeks to amend the Amendment Bill.

Regarding the deposits, he believes that it is a door to state capture.

On the transfer of votes, Mr Matomela said that s18 of the Constitution allows for Freedom of Association, and as such, it is the choice of independent candidates to choose how they will associate with one another. If an independent seeks to share votes with another, this should be permitted. He felt that nothing should prevent independent candidates from forming caucuses to share votes, so long as this is declared beforehand.

Touching on how MPs will be recalled in Parliament, he said that as the seats will belong to the citizens who nominated the candidates, they will be able to recall them at any time. He added that written contracts must be signed between independent candidates and their constituencies, to ensure that the candidates are not easily bought by private interests.

Regarding by-elections, he said the formation of the NPCA will ensure that by-elections will not occur all the time, as those who receive votes but do not meet the threshold, will be put on hold and once there is a vacancy, the NPCA can agree that one of these candidates take over the position. 

He believes that using local government as an example is not fair, as independent candidates and their associations are not funded. The Independent Electoral Commission (IEC) only funds political parties. He called for the payment of deposits for both political parties and independents to be done away. Instead, the qualifications for either to contest in elections should be changed, which will give every individual an equal opportunity to contest elections.

Organisation Undoing Tax Abuse (OUTA) submission on the Electoral Amendment Bill

Ms Rachel Fischer, Research Officer, OUTA, briefed the Committee on OUTA’s submission on the Amendment Bill. To begin with, she indicated that the organisation is in support of the Con Court Judgement, as it provides every citizen the opportunity to assert their right to stand for public office.

OUTA indicated that more time needs to be afforded for public participation to occur, particularly as the Bill has significant implications for the public at large. The organisation found little evidence of widespread endeavors to inform, educate and engage with the public on the Bill. It defined the failure to engage with the public meaningfully as unconstitutional. It advised the Committee prioritise visible education campaigns, which inform the public on the Bill and its implications.

Ms Fischer said that OUTA had identified several problematic items in the Bill, some of which were: independent candidates' limited access to 200 regional seats in Parliament and the issue of wasted votes. Regarding the latter issue, OUTA believes that the discarding of votes for independents and not for political parties limits proportional representation and creates inequality between the two. The organisation advised that Parliament reconsider its stance on the Private Member Bill, particularly regarding the transfer of votes.

Submission by COSATU on the Electoral Amendment Bill

Mr Matthew Parks, Deputy Parliamentary Coordinator, COSATU, briefed the Committee on COSATU’s submission on the Amendment Bill. In his opening statement, he extended COSATU’s support for the Amendment Bill, particularly the minimalist option chosen by the Minister. The organisation supports this option for two reasons, first, it will not make radical changes to the PR system currently in use, which it deems to be an important part of South Africa’s democracy. Second, this option will allow for Parliament to meet the Con Court’s deadline for the 2024 elections.

He explained that COSATU supports the PR system used by the country because it allows for political parties to address demographic issues, greater political diversity and inclusivity. Whereas in the ward system, which uses a constituency-based system, Ward Councillors tend to reflect the demographic base of their parties, for example: African for the ANC, White and Coloured for the DA and Zulu Males for the IFP.

He then highlighted that COSATU supports the Bill’s provisions for Provincial constituency boundaries to be defined as constituencies for independents for the Provincial to National and Province to Province ballots. This it believes will provide clarity and simplicity with minimal disruption. Additionally, COSATU supports the requirement that independents meet the same electoral vote thresholds for Parliament and Provincial Legislatures as political parties.

Discussion

Ms van der Merwe said that she did not appreciate COSATU’s statement that most IFP councillors are Zulu and Male. Its Councillors are reflective of various constituencies. 

She explained that the Committee decided to apply for an extension of the process because it wants to make sure that all South Africans are involved in the process. Further, Parliament will visit communities ahead of its arrival, to inform them on the dates when they will hold the public participation. It will also create awareness of the public participation process on the Bill through radio stations.

She reiterated that the transfer of excess votes to another candidate could also undermine the democratic process. She asked OUTA what should be done with excess votes.

Additionally, she asked OUTA if it had a proposal on how an independent candidate can run across Provinces and for a National seat as well when they can only fill one seat.

Mr Pillay also asked OUTA if it had a proposal on how an independent candidate can run across Provinces and for a National seat as well when they can only fill one seat.

On the transfer of votes, he said that if this were to occur, it would mean that a voter who voted for one candidate, would then be voting for someone who they had not voted for.

He asked if OUTA would remain as an amicus curiae (an impartial advisor to a court of law in a particular case) in the New Nation Movement Judgement. In addition, he asked if it would be in favour of adopting the majority option, which recommended substantial changes to the electoral system, even if this change could not be implemented in time for the 2024 elections. 

He confirmed that the public process has commenced in various Municipalities and a Memorandum Bill has been translated into the different languages. Thus, work is underway to prepare communities for consultation.

Ms Fischer said she was pleased to hear that there have been efforts to translate the documents into various languages. She suggested that the Committee collaborate with civil society associations during the public participation process.

On surplus votes, she said that when choosing to stand, a candidate would have to submit his or her name as a primary candidate and then submit a list of secondary candidates. Thus, voters will have the choice of primary and secondary candidates.

Considering that s18 of the Constitution refers to the right to associate with others, independents are permitted to associate with all candidates that they wish to and to enter into an agreement with such candidates, where possible (should there be a list of secondary candidates).

She referred the Committee to the Private Members Bill for proposals on how the process of the transfer of votes will occur. Further, she suggested that going forward the Committee should revisit the Private Member Bill on other recommendations.

Ms Fischer confirmed that OUTA remains an amicus curiae in the New Nation Movement Judgement.

Mr Parks said that the PR system has several benefits, which include the ability of political parties to address demographic issues, greater political diversity and inclusivity. Whereas had the country opted for a constituency system in 1994, only four political parties would be represented in the National Assembly. He recommended that the Committee look into changing the electoral system holistically after the 2024 elections.

He agreed with Members that if an independent wants to contest seats in different Provinces, then he/she should set up a political party. He urged stakeholders not to complicate the Bill for citizens.

The Chairperson thanked all officials for their input during the meeting.

Since the Judgement was handed down, the Committee has invited various stakeholders to participate in the process of drafting the Bill. It has also worked hard to fast track the process, to ensure that the deadline is met. He added that this was not a tick box exercise and all Provinces will be briefed on the public participation process.

Regarding the Private Member Bill, he said that the Rules of Parliament permit for Members to introduce a Private Member Bill and those same rules guide Committees on how to deal with Bills. He clarified that the Committee has not dismissed the Private Member Bill. Further, it has not yet established a position on the Amendment Bill. 

Once the Amendment Bill has been consolidated, the IEC will be given an opportunity to deliberate on how it will implement the changes. 

Ms Van der Merwe assured the public that the Committee is working hard to ensure that the Bill is enacted and implemented in time.

The Chairperson asked the Committee Secretary for an update on the progress of the public participation process.

The Committee Secretary indicated that the process is progressing well. Currently, there are teams in North West, KwaZulu-Natal and Mpumalanga who are conducting workshops with officials from the House of Traditional Leaders, Members of Provincial Legislatures and officials from Local and District Municipalities.

The meeting was adjourned.