Electoral Amendment Bill: DHA, IEC & Legal Advisors input on submissions received; with Minister

Meeting report

Opening remarks

The Chairperson said this meeting was for the Committee to receive a briefing from the Department of Home Affairs (DHA), the Independent Electoral Commission (IEC) and the Parliament Legal Services’ on the submissions received on the Electoral Amendment Bill.

He hoped that the stakeholders would address the issues raised by Members in yesterday's meeting.

DHA's response to submissions on Electoral Amendment Bill

Adv Mitchell De Beer, Legal Counsel, DHA, said he had been delegated to respond to issues that the members of the public raised. His focus would be on the public comments that were received. He and Adv Geoff Budlender SC had prepared a memorandum.

This round of public participation focused on the new matters introduced into the Bill by the National Council of Provinces (NCOP). There were three big headings. The first was the question of how the signature requirement would work going forward. The signature requirement would be required for both political parties and independent candidates who were not already represented in the legislature concerned. Once the political party or the independent candidate was in the legislature, then they would not have to satisfy that requirement again to contest the next elections. The second big change was the introduction of the Electoral Reform Consultation Panel. The third change dealt with the allocation of seats.

Signature requirement

Comments had again been received about how a signature requirement would create barriers to entry for independent candidates. Adv De Beer responded that it was constitutionally permissible for Parliament to adopt eligibility requirements for any candidate or political party wishing to contest an election. He explained that when one had a representative democracy, as it was in South Africa, then people voted for their representatives. South Africa did not have a direct democracy where every single person voted for every single decision made by Parliament. It had a representative democracy. The way that the democracy worked was that there were elections to contest the seats in the representative legislature, and there had to be some kind of limiting factor or requirement as to who could contest the elections. If every single South African citizen could put up their hand the day before an election and decide to run, then that would not work. It was perfectly constitutionally permissible for Parliament to say that there were going to be certain requirements that must be fulfilled to be eligible to stand for a seat and contest an election. Parliament, the National Assembly and the NCOP have now adopted this signature requirement.

The way that this could be looked at was as a sort of proof of concept. It was to say that before an independent candidate or unrepresented political party could contest an election, they would need to demonstrate that they at least had some kind of support, and that there was a chance of actually getting enough votes to get a seat in the National Assembly or the provincial legislature concerned.

Adv De Beer explained that on the one hand, people could not be precluded from participating unjustifiably, but on the other hand, they had to ensure that the people who were contesting elections were actually serious about it, and that they had a prospect of being elected. Ultimately, Parliament was the body that was going to make the choice about how to determine that requirement. The initial Bill suggested that the IEC would be empowered to prescribe this requirement, but that was not what Parliament had chosen. Instead, Parliament had chosen to adopt a percentage of the previous quota for a seat in the relevant legislature or the relevant election to demonstrate voter support. It was constitutionally permissible for Parliament to do so. Parliament had landed at 20%. He and Adv Budlender had expressed the view that 20% (which was one-fifth of the votes required for the previous election) was constitutionally permissible. They had also expressed the view that if Parliament was concerned that 20% was too high, then it may consider reducing it to 15%. It was for the National Assembly and the Portfolio Committee on Home Affairs to make that decision.

The signature requirement now applied equally to every new participant -- that was any new political party not represented in the legislature or an independent candidate. The signature requirement was not a once-off. For example, if an independent candidate wanted to contest the Gauteng provincial legislature, and then further decided to contest the National Assembly, then the candidate would have to satisfy the requirement both times. However, the amendments that were brought about by the NCOP had brought parity between parties and independent candidates on this score.

Electoral Reform Consultation Panel

Adv De Beer said that the suggestion for the reform panel was so that there could be a statutory body mandated with investigating electoral reform over a longer period of time than had been possible since the New Nation Movement judgment was handed down, and the requirement that for the 2024 elections, independent candidates should be entitled to contest the 2024 general elections for the National Assembly and provincial legislatures.

Before the New Nation Movement judgment, the electoral reform that was done or investigated was usually by panels appointed on an ad hoc basis -- for instance, the Van Zyl Slabbert investigation, as well as the investigation by former President Kgalema Motlanthe. Those were ad hoc investigations but not statutory investigations, and they also did not consider the question of how to fit independent candidates into the electoral system. The Electoral Reform Consultation Panel that the Bill would introduce would be a statutory panel with a mandate from Parliament to investigate these issues.

Two general questions were raised in the public comments about the Panel. One was the question about the timelines for when the Panel would work. Some said it should be curtailed, others that it should be lengthened. Adv De Beer explained that when the Bill came into force --which would have to be by the end of this month, because the Constitutional Court deadline would expire -- the Minister would have a four-month period to establish the Panel and appoint its members. Before next year's elections the Panel must undertake research into these issues, and then after the elections, a public participation process could be facilitated for broader electoral reform. The Panel had to provide its report on further reform 12 months after the elections.

The reason why the Panel had been mandated to do a public participation process after the 2024 elections was because, at that stage, the country would have had an election for the National Assembly and the provincial legislatures, where independent candidates had contested those elections. The Panel must provide its report a year after the 2024 elections, which would give Parliament and the Minister a period of four years until the next election to undertake any further reforms. This would probably be about three years, because the IEC may require time before the 2029 elections to update any system in light of any reforms that were adopted. It was therefore a much longer period of time than had been available since the New Nation Movement judgment was handed down in June 2020, which required Parliament to enact legislation that permitted independent candidates to contest for the National Assembly and the provincial legislatures.

The second issue that arose in the comments was why the Minister was appointing the Panel, not Parliament. The comments suggested that Parliament was responsible for passing the law, and questioned why the Minister would be appointing the Panel. Adv De Beer said that there were a couple of reasons for the Minister to be involved. There was a practical reason, which was that the Minister’s Department could provide administrative support to the Panel, as it was set up to do that already. On a principled reason, the Minister was the person who would be introducing legislation in respect of electoral reform going forward. Adv De Beer referred to Section 73 of the Constitution, which contemplated that “a Cabinet member or a Deputy Minister, or a member of committee of the National Assembly, may introduce a Bill in the Assembly.” Generally speaking, it was known that the Minister responsible for that legislation would introduce it. Those were the principled and pragmatic reasons why the Minister was appointing the Panel.

Adv De Beer emphasised that the Minister did not have a free hand in appointing members of the Panel. The statute provided for specific qualifications. A member of the Panel must be a fit and proper South African citizen; must have skills, expertise, experience, knowledge or academic qualifications in elections or constitutional law; must not be a member of Parliament or provincial legislature; and must not have been an office bearer or employee of a political party in the past 12 months. The Minister must appoint specific people with specific expertise.

Another constraint was that the Minister must appoint from nominations received from the public. The third constraint was that the Minister did not appoint by himself, but would appoint people to the Panel in consultation with the IEC. A requirement to appoint or make a decision “in consultation with”, required an agreement with whoever the Minister must consult. The Minister could not just remove members of the Panel -- there had to be a finding of misconduct, incapacity or incompetence. So while the Minister would appoint the Panel and the Panel would report to the Minister, there were independent mechanisms to ensure that the Panel did its job and could report to both Parliament and the Minister. There was nothing untoward about the Minister appointing a consultation and investigation panel, especially in circumstances where the statute would be very specific about who could be appointed and their role.

IEC's response to submissions

Mr Sy Mamabolo, Chief Electoral Officer (CEO), IEC, said that the first question that the IEC would like to address related to the question of the wrong quota that the Committee had presumably worked on. The IEC wanted to remind the Committee that on 5 July 2022, the IEC had presented to the Committee detailing the 2019 regional quotas, and what the signature threshold would be at 50%, 30%, 20% and at 15%, for each province. The Committee then exercised a preference and determined the threshold at 20%. The IEC had also presented the regional quotas in the NCOP, so the NCOP would have been privy to the correct quota information when they deliberated on the Bill.

One of the submissions took issue with the fact that in the NCOP, the IEC had made a proposition to the effect that the same signature requirement must apply to unrepresented political parties. That was not to bring a policy proposition on the table, but rather to propose the extension of a policy proposition and make it applicable across all electoral contestants, to realise parity of treatment amongst electoral contestants, which was what the IEC had sought to do.

Changes to seat allocation calculations

Mr Mamabolo said that one instance in which a forfeiture calculation would arise was in the instance where a party had tendered fewer candidates than the seats they had been allocated. Another instance in which a forfeiture calculation may be required was if an independent candidate won more than one seat.

The possibility that an independent candidate could win more than one seat was real, and could materialise. When doing a forfeiture recalculation, it was correct that it lowered the quota, because it had to exclude the votes for the independent candidate who gained more than one seat. This was acknowledged in the submissions received, as it stated that independent candidates were “potential victims”, but similarly, parties may also be potential “victims.” The argument raised could thus go either way. Mr Mamabolo emphasised that there was nothing inherently biased towards either political parties or independent candidates in a forfeiture calculation.

Mr Mamabolo detailed three illustrations, firstly to show that the larger parties did not have a disproportionate advantage and that changes in remainders were directly proportional to the electoral support of the contestants. A second illustration showed that parties and independents gaining seats on highest remainders could retain the seats during a recalculation. A third illustration showed that a party with smaller electoral support could attain additional seats during a recalculation.

Highest proportion vs highest number of votes

The amendment to Item 5(g) of Schedule 1A ensured that the independent candidate would receive a seat in the region where it had received the highest proportion of votes relative to the other parties.

Filling of vacancies

Mr Mamabolo said that if a vacancy arose mid-term in the case of an independent candidate, then a recalculation had to happen. In that recalculation, all electoral contestants were in contention. There was no justification for limiting the filling of the vacancy to independents.

(See presentation attached for details)

Parliamentary Legal Services’ response to submissions

Ms Telana Halley-Starkey, Parliamentary Legal Advisor, Constitutional and Legal Services Office (CLSO), responded to the legal issues surrounding the signature requirement.

Signature threshold for independent candidates was too high

She said it was the CLSO’s response that the purpose behind the use of signatures was to determine voter support eligibility, the seriousness of the candidate to contest the election, and to avoid lengthy ballots. However, the threshold set for those signatures should be reasonable. The process followed by the Committee could be argued to have resulted in a reasonable decision. As experts on the practicality of garnering signatures, the IEC was best placed to advise the Committee if a requirement of 20% would result in unfairness in practice.

Independent candidates to submit 1 000 signatures, like parties

Submitters may be conflating the issue, confusing the requirements relating to registration with the requirements relating to contestation.

If a party was registered, but did not have representation in the National Assembly or a provincial legislature, there was a further requirement of contestation, which was the 20% signature requirement. Independent candidates were required to fulfil the same requirement of 20%.

New requirement for registered unrepresented parties

It was understood that the legitimate government purpose was to mitigate a possible extensive ballot paper. Parties that did not have representation in the National Assembly or provincial legislatures should show good faith that they had voter public support.

Ms Daksha Kassan, Parliamentary Legal Advisor, CLSO, responded on the technical issues surrounding the formation of the Electoral Reform Consultation Panel.

Clause 23 only part of the Bill (Amendment Act) and not the principal Act

She said the Panel was intended to be a once-off activity and not a permanent feature of the electoral system. Therefore, it was not incorporated into the principal Act, but would form only a part of the Electoral Amendment Bill once enacted.

Change of word “section” to “Act” in clause 23(1)

The manner in which the clause was currently drafted was to avoid having to make any further statutory amendments should the circumstances arise that the section could not be brought into operation at the same time as the rest of the Act.

(See presentation attached for details)

Discussion

Mr K Pillay (ANC) felt that the presentations by the stakeholders had given Members a clear understanding of how the Committee should be able to proceed, and what would be required.

He referred to the comments about the highest proportion versus the highest number of votes. He recalled that in one of his submissions, he had said that when one looked at KwaZulu-Natal (KZN) and Gauteng, they were bigger in terms of population and voters. It would make sense to look at the highest proportion rather than the highest number of votes.

He thought that the way in which Clause 23 was presented made perfect sense, because the Electoral Reform Consultation Panel was for a stipulated time period. It had a start and a finish. It was important that this be emphasised, because the Panel was not permanent and it would work on a very important topic, which was electoral reform.

He proposed that the Members of the Committee be given some time to go through the presentation of yesterday and the presentations of today, so that the Committee could deliberate and also be able to consult respectively. He suggested that the deliberations should occur in Tuesday's meeting, not tomorrow. He was also mindful that the Committee had to work quickly and finalise this process before 28 February.

Ms L van der Merwe (IFP) agreed with Mr Pillay’s proposal -- that it was important for the Members to reflect on the issues raised, and perhaps address them in their caucuses and thereafter come back to debate them on Tuesday.

She said that all of the presentations had touched on the issue of the signature requirement, and how the Committee had landed at the 20% threshold. She noted that Adv De Beer had mentioned that it was previously advised that the signature threshold was too high, which was why it had landed at 20%. She pointed out that Adv De Beer had also said that the Committee might be able to consider 15%, which remained her view. The summary of the public comments had clearly shown that the public believed that the threshold remained too high, that it was an excessively high barrier, that it constituted unfair treatment, and that it was a form of disenfranchisement. This would then question the difference between a 20% and 15% threshold, and whether there should be a lower threshold to err on the side of caution. One of the presentations mentioned that if this was referred to a court review process, the court might regard the 20% signature requirement as unconstitutional and unfair. She acknowledged that there were different views on these issues, and that they would be debated at a later stage.

She noted that Adv De Beer had said that there were checks and balances regarding the appointment of the Electoral Reform Consultation Panel, and that the Minister did not have a free hand in appointing. She questioned what the harm was in having an inclusive process, where Parliament would appoint the Panel. She explained that the power to prescribe an electoral system was vested in the National Assembly, in terms of the Constitution. That authority did not sit with the Executive authority. She did not see the harm in Parliament driving the process of appointing the Panel. That Panel could report back to an ad hoc committee of Parliament and be appointed through an inclusive process that involved the Minister and the IEC. Adv De Beer had said that the Minister would have to consult the IEC, but if he was consulting only the IEC, then he was not consulting Parliament. Parliament represented the wishes of the public. She reiterated the point she had made yesterday, which was that there should be a more consultative process in the appointment of the Panel, and that the power should not rest solely with the Minister.

Mr A Roos (DA) said the presentations had been tremendously beneficial. He agreed with Mr Pillay’s proposal to have the deliberations on Tuesday.

He referred to the signature requirement. The public participation submissions had placed emphasis on the rights of independent candidates. He said many nations had realised the need for thresholds to avoid ungovernability in fragmented legislatures. This was not something the Committee had come up with, and it was not unique to this Bill. There was definitely precedence and a need for a threshold. The DA agreed with the Parliamentary Legal Services’ view that the purpose of the signature requirement was that incumbents had proved that they had enough support to gain a seat. The Parliamentary Legal Services also made an important distinction between registration and contestation. For instance, one could register a political party or register as a candidate, and decide only later to contest the election. Registration did not put one on a ballot paper and it did not incur costs to the IEC.

When looking at the threshold and the input from the legal advisors about the factors of reasonableness, it spoke to the nature of the competing interests and that the interests of voters needed to be considered, as well as the impact of the decision on the lives affected. The decision was not just about the lives of those who wanted to contest an election, but it also considered the electorate in general and how practical it was going to be to vote, in terms of understanding the ballot paper and making an informed decision without getting confused by the variety of options. He reminded the Committee of the 2006 Democratic Republic of the Congo (DRC) ballot paper over two meters wide -- he had posted this on Twitter yesterday. He said it was not as if there was no rationale behind election thresholds.

He referred to the issue of the highest proportion versus the highest number of votes, which had been discussed at length. He said that they were moving away from a system where the proportionality was calculated first. The system would now tally all of the votes and first work out the proportion that each party was entitled to, and then work out the seat allocation and remainders, etc. The figures that the Committee were shown had been very small. This Committee received a report which simulated the 2019 results, showing that the effect was much more serious than that. He noted the comment that a candidate could lose his/her seat due to the recalculation. He explained that the calculation was not complete until the full calculation was complete. The recalculation was part of the overall calculation, and once that was finished then the candidate may have a seat, so the candidate did not lose the seat as part of that recalculation.

He agreed with Ms van der Merwe, that the Portfolio Committee on Home Affairs should play a leading role in appointing the Electoral Reform Consultation Panel. The right people had to be selected for that role. He reiterated the public participation element of this Panel.

Ms A Khanyile (DA) supported the comments of Mr Roos.

Mr T Mogale (EFF) agreed with Mr Pillay’s proposal. This would give the Members time to consult on some of the issues.

Ms M Molekwa (ANC) welcomed the presentations. She felt that her comments had been covered.

Ms M Modise (ANC) said that the presentations had assisted the Committee and provided clarity, particularly on the issues that the Committee had raised concerns about yesterday. She supported Mr Pillay’s proposal, so that Members could have discussions in their caucuses and then deliberate in the Committee on Tuesday.

She sought clarity on the issue of the signature requirement. She asked what process the Committee would undergo if it reconsidered the 20% signature requirement. She asked whether that decision would require further public consultation.

The Chairperson thanked the Members for their contributions and the proposal on how the Committee should proceed with deliberations. The Parliamentary Legal Services would respond to Ms Modise’s question.

He said that all the presentations had clarified what the Committee had considered, and the NCOP’s amendments. The Committee would have further deliberations on whether the appointment and functions of the Electoral Reform Consultation Panel should be under the authority of Parliament or the Minister. He agreed that the deliberations would be scheduled for Tuesday’s meeting.

Adv De Beer said he would be present in Tuesday’s meeting to respond to any further questions arising from the presentations.

DHA's response to submissions

Mr Aaron Motsoaledi, Minister of Home Affairs, said it seemed promising that the Constitutional Court obligations would be met by the end of February. He wanted to address the public comment suggesting that when an independent candidate vacated a seat, the seat should go to another independent candidate. He said that Mr Roos had resolved that issue a while ago. He recalled that Mr Roos had said that there was no association of independence. An independent candidate was one person, so the argument that a seat which was held by an independent must go to another independent assumed that that independent had won the seats for other independent candidates. Minister Motsoaledi explained that independent candidates were contesting with political parties equally, and when a seat was vacated, then they must also contest for that seat equally. There could not be an association -- the seat belonged to Parliament.

Minister Motsoaledi said that Ms Modise’s question was extremely important. The Committee had found itself at this point because certain amendments were proposed that were believed to be reasonable, but it had been advised that the amendments were substantial and required public hearings. He wanted the Members to carefully consider this matter in their caucuses. If the Committee changed the threshold from 20% to 15%, as Ms Van der Merwe had seemed to propose, and if the legal advice was that it was a substantial change and required further public consultation, then he would urge the Committee to steer away from that, because there was simply no time. He did not foresee that the Constitutional Court would grant another request for extension, nor was it desirable. The more the passing of this Act was delayed, the more the IEC would be disadvantaged in preparing a free and fair election. He emphasised that this matter should be taken very seriously.

The question of whether Parliament or the Minister should appoint the Electoral Reform Consultation Panel was a perennial issue. It was a question that always arose. He suspected that this arose out of not trusting each other or suspicions of each other's motives. He recalled that when he was Minister of Health, there was a very heated debate about whether the country's first Health Ombud should be appointed by the Minister or by Parliament. During the debate, he had asked whether there was any guarantee that if Parliament chose any committee, it would end up with the best committee. He made an example of the fact that Parliament chose the SABC board, but it did not mean it would end up with good quality. Eventually, that debate was won, and the Minister was allowed to appoint the Health Ombud. Professor Malegapuru Makgoba was then appointed. At that time, some Members confessed that they would not have been able to appoint such a person, because they would not have known him, and they were very grateful for how the Health Ombud was appointed.

Minister Motsoaledi pointed out that the presentations used “IC” as an abbreviation for an independent candidate. He said that it created confusion when the presenters mentioned the abbreviation for IEC and “IC.” as one did not hear much of a difference in how it was pronounced. He worried that the use of “IC” as an abbreviation for an independent candidate would create further confusion in the public. He suggested that the stakeholders should rather use “IND” as the abbreviation for an independent, as it was commonly known.

 

IEC's response to submissions

Mr Mosotho Moepya, Chairperson, IEC, referred to the presentation by the Parliamentary Legal Services, particularly when Ms Halley-Starkey suggested that the IEC would be the best institution to advise the Committee on whether the 20% signature requirement was appropriate or not. He said that the IEC held the view that it had given the different thresholds, and indicated that this was a policy issue. In line with Richter v Minister for Home Affairs, the IEC believed that this was a policy issue and would ask that it be considered as such.

He understood that there was a common agreement amongst the Committee that the deliberations would be moved to next week. The IEC would want to obtain clarity on what the impact of this on the proceedings, as it was initially scheduled for this to be finalised by no later than Tuesday next week. He reiterated the Minister’s comment that this was absolutely critical. It was important for all stakeholders to avoid another delay.

Mr Moepya referred to Mr Roos’s comment about the illustrations used in the IEC’s presentation. He agreed that the illustrations used lower figures, but this did not deviate from the fact that the illustrations were used to demonstrate that no one was intentionally favoured or disadvantaged.

Parliament Legal Services’ response to submissions

Ms Halley-Starkey said that she and Ms Kassan had been discussing the question of whether there would need to be further advertising for public comment following a decision, if the Committee decided to lower the threshold to 15%. It was their opinion that it would not require re-advertisement, because this was not an amendment that would affect a new category of people. It was an amendment that would have followed from an advert, so the public would have had ample opportunity to engage with that amendment. Ms Halley-Starkey said that this question would be referred to a senior adviser in the CLSO unit, to be discussed and ruminated on. The CLSO would provide further feedback when the Committee deliberated on Tuesday.

The CLSO was worried about the time and the pressure it would take to settle the Bill when it was final. She advised that the Committee should bear this in mind when deciding when it would have its next meeting.

Closing remarks

The Chairperson noted that all stakeholders agreed that there was no time, and that the Electoral Amendment Bill had to be concluded so that the IEC could be allowed to interact with the process once the Bill had been presented to Parliament.

The Committee had decided to reschedule tomorrow’s deliberations for Tuesday, so that Members could consult on the issues raised in the presentations.

The Chairperson reflected on the Minister’s response to the question of who appointed the Electoral Reform Consultation Panel. He said it was important to draw the line between the executive role and function of Parliament, and the Minister. The Committee would reconvene on these issues on Tuesday.

The meeting was adjourned.