Electoral Amendment Bill: Seat Calculation briefing & adoption of A-list

Meeting report

The Chairperson said that the previous two meetings resolved all the issues regarding the A-list that were before the Committee. They are waiting on the presentation of the A-list with the key amendments discussed in the last meeting so that it can be adopted. By next week, they will adopt the report that will be sent to the National Assembly and the NCOP will be able to begin with their process.

Electoral Amendment Bill A-list  

Ms Sarah Govender, Senior State Law Advisor, Department of Justice and Constitutional Development, and Mr Masego Sheburi, Deputy Chief Electoral Officer, (IEC, presented the amended A-list to the Committee.

Clause 1

The definition of “candidate” has been amended to “‘a South African citizen contesting an election, or a South African citizen nominated on a list of a party contesting an election, as the context requires.” The definition of “independent candidate” has been amended to “‘a South African citizen contesting an election and who is not nominated on a list of a party.”

Clause 4

On page 4, lines 6 to 9 will be omitted and will be substituted with: “(a) A completed prescribed form confirming that the candidate has submitted, in the prescribed manner, the names, identity numbers and signatures of voters whose names appear on the segment of the voters’ roll for that region or province in which the candidate is standing for election and who support his or her candidature, totalling at least twenty percent of the quota for a seat that was required for a seat in the previous comparable election.” The twenty percent requirement was determined in the previous meeting.

Clause 11

The amendments proposed to Schedule 1A are not new. They are in line with the decisions of the Committee. In some instances, it was necessary to refine the drafting to give effect to the intent of what the Committee wanted to achieve.

Item 5(d) has been amended to: “Where the result of the calculation referred to in paragraph (c) yields seats not absorbed by the number awarded to parties or independent candidates, the surplus of votes accruing to any party, parties or independent candidates in respect of the relevant region, competes for the remaining seats in sequence of the highest surplus of votes.” This has been changed to refine seat calculation, for seats that are not awarded. This change makes it clear that recalculation happens when there remain unallocated seats. 

Item 5(f) has been changed to: “Where an independent candidate’s award in terms of paragraph (e) exceeds one seat, the candidate is awarded one seat as his or her provisional allocation. The excess seats must be dealt with in terms of item 7.” This change deals with the instance that an independent stands to be awarded more than a single seat.

Item 5(g) has been changed to: “If the same independent candidate is provisionally allocated a seat in more than one region, the candidate is awarded the seat in the region where he or she received the most votes, as his or her provisional allocation. The excess seats in other regions must be dealt with in terms of item 7.” This amendment removes confusion around any impression that an independent may be granted more than one seat.

Item 7, sub-item 2 has been changed to: “(a) If, following the provisional allocation in item 5, an independent candidate stands to be allocated more than one seat in a region, he or she is only allocated one seat and forfeits any additional seats. (b) If, following the provisional allocation in item 5, an independent candidate stands to be allocated a seat in more than one region, he or she is only allocated a seat in the region where he or she received the most number of votes and shall forfeit any additional seats.” Unchanged, this item would have led to impressions that were at odds with what the Committee has decided.

Item 21 has been amended to address the instance where an independent candidate wins a seat in both the provincial legislature and National Assembly. The amendment states that the candidate will have to choose which seat to occupy and that they cannot hold both: “1) If an independent candidate is finally allocated a seat in accordance with item 11(f) as well as in accordance with item 5(i), such independent candidate must within two days after the said final allocation, indicate to the Commission the seat he or she elects to retain  or in which legislature the independent candidate will serve, as the case may be, in which event the independent candidate’s name must be deleted from the relevant  other list and the recalculation performed in terms of item 7 or item 12 as indicated by the context.”

IEC presentation on seat calculation

Mr Sy Mamabolo, Chief Electoral Officer, IEC, took the Members through the seat calculation method used to fill vacated seats.

(See the presentation for more detail).

Discussion

Mr K Pillay (ANC) thanked the IEC for the presentation and the clarification. He is happy with the amendments and wishes to adopt the A-list. There is just one item that he has an issue with, in Clause 4. Item 3 says “A completed prescribed form confirming that the candidate has submitted, in the prescribed manner, the names, identity numbers and signatures of voters whose names appear on the segment of the voters’ roll for that region or province in which the candidate is standing for election and who support his or her candidature, totalling at least twenty percent of the quota for a seat that was required for a seat in the previous comparable election.” He proposed that the words “independent candidate” also be included in this item, as the Bill defines candidate and independent candidate separately. The original Bill includes the word “independent”, but the document presented today does not. Maybe it is just an oversight. Apart from this, he is happy with the A-list. They have given much time to this process. He moved to adopt the A-list.

Mr T Mogale (EFF) said that Clause 4, Item 3 deals with the number of signatures independent candidates need to contest an election. The EFF believes that this amount should not be less than 20 000. The amount is even lower now that it is at 20 percent. It might even go lower than this when it arrives at the NCOP. It should not be a percentage; it should be a fixed amount of 20 000. The Bill also says that the deposit an independent candidate must pay must be less than that registered parties pay. Why is there a difference? They are both contesting for the same thing. The bar is being lowered for independent candidates to contest elections, which is problematic. The deposit should be the same amount. If a person chooses to contest through a political party, it is their choice, as per the democratic system. Lowering the stakes for others to be able to jump is problematic. The EFF does not support the Bill in its current form.

Mr A Roos (DA) said that the amendments look fine, but the DA still opposes the A-list as a whole. A major concern is the potential lack of party agents, which is a major risk to the integrity of an election. Secondly, from the IEC presentation, it is clear that they didn’t really engage with the concerns of Mr Atkins. The figures in the presentation are very low and paint a different picture. It is important that Members satisfy themselves that the IEC has gone through this and looked at it from different angles, based on public input, and decided whether or not this is an extreme example. Re-calculation after the election to fill a vacancy is a big risk. It creates a scenario where, on almost every occasion that one does a re-calculation to fill a seat, the seat goes to the biggest political party. While he understands that it is impossible to have a perfectly proportional system, this recalculation method does create a risk. For these two reasons, the DA is opposed to the A-list.

Ms A Khanyile (DA) agreed with Mr Roos.

Ms T Legwase (ANC) seconded the adoption of the A-list, with the change Mr Pillay mentioned.

Ms M Modise (ANC) said that the presentations mirror the views given by the public input. She seconded the adoption. The amendments presented are satisfying.

Response from the IEC and the OCSLA
Ms Suraya Williams, Principal State Law Advisor, OCSLA, said they will insert the word “independent.”

Ms Janet Love, Vice-Chairperson, IEC, noted Mr Roos’ comment about the IEC not engaging with Mr Atkins's concerns and said that the comment made was unfortunate. The IEC has gone into a lot of detail to address the submissions made. What the CEO was presenting to the Committee is that there are choices that have to be made. The Committee has made these choices, and to a certain extent, these choices are embedded in the ways in which the calculations are made. They have indicated the extent to which the current calculations could provide for equitable treatment of both independents and political party candidates, while there could also be implications that could possibly undermine that equity of calculation in favour of independents. This is the decision the Committee has made today, which will be reflected in the Select Committee. They have not received an alternative from any submission.

Mr Mamabolo said that the figures that they used in the calculations are actual figures from the 2019 elections. They have not been sanitised in any way. They are real. The figures Mr Atkins provided are extreme and have never been obtained in the last 25 years of democracy. They are not saying that these figures will never occur. They simply do not know the probability of figures like this occurring. Simulations need to be done to make a determination on a scientific basis.

The Chairperson said that the Committee has chosen to adopt the A-list. He thanked the Members, the IEC, the OCSLA, Parliamentary Legal Services, and the Department for dedicating time to this Bill. The Bill stands as a representation of Members’ deliberations, based on public input.

The meeting was adjourned.