Electoral Matters Amendment Bill: Content Advisor briefing on proposed amendments & deliberations

Meeting report

The Chairperson welcomed all those that were present at the meeting. Thereafter, he mentioned that the Committee had received all the necessary reports for it to begin deliberations on the clauses of the EMAB.

As the Bill will have to be referred to the Select Committee on Security and Justice in the National Council of Province, it would not join the Portfolio Committee.

He then asked if any apologies were recorded.

Mr Eddie Mathonsi (Committee Secretary) mentioned that the Committee received an apology from Ms van Der Merwe, who would only be able to attend the meeting from 14:00, the Minister and Deputy Minister.

Ms Janet Love (Commissioner at the IEC) tabled an apology on behalf of the Chairperson of the IEC, Mr Mosotho Moepya, who was travelling.

Adv Phelelani Khumalo (Head of Legal Services: DHA) confirmed that the Minister would not be attending the meeting.

The Chairperson asked for the Content Advisor to take Members through his presentation.

EMAB Presentation

Mr Adam Salmon (Committee Content Advisor) focused on the areas where the Parliamentary Legal Services, Department of Home Affairs, IEC and the Department of Communications and Digital Technology had consensus on the Bill.

Clause 3: Definitions

Mr Salmon outlined that it was submitted that the definitions of independent candidate and representatives in the Party Political Funding Act (PPFA) needed to exclude party membership by the disqualifying criterion; that donation in kind should also reference independent candidates. There was general consensus on these changes by the DHA, PLS, and the IEC.

The DHA and IEC agreed that there was no need to change the name of the Multi-Party Democracy Fund (MPDF).

Mr B Pillay (ANC) suggested that the Committee agree to include the words independent candidates and representatives next to political parties. Besides that, he voiced his support for the adoption of Clause 3.

The Chairperson asked for a seconder.

Ms T Legwase (ANC) seconded the adoption of Clause 3.

Ms Telana Halley (Parliamentary Legal Advisor) pointed out that in certain instances parts of the PPFA will need to include independent candidates and not independent representatives.

The Chairperson took note of the PLS’ advice, and clarified that Members were aware of the difference.

Clause 7: Funding Formula

Mr Salmon explained that if in Clause 29 it is decided that there does not need to be an equitable allocation but only a proportional one, then Section 6 (3)(a) of Clause 7 will have to be amended.

Clause 9: Use of funds

Mr Salmon said that the submissions to this clause were that Section 3 (d) unfairly restricts political parties’ abilities to cover legal expenses. They further submitted that the current ban on political parties from using funds to defray internal party political disputes be retained and that the parties be excluded in Section 7 (3)(d).

The submissions also recommended that the prohibited use and allowed uses of donations should be equally applied to political parties and independent candidates. In response the IEC explained that the primary purpose of Section 7 in the PPFA was to prohibit the use of money for intra party disputes and this must be clearly expressed. It suggested that the provisions should be extended to prohibiting garnishing orders against the money by the funds of the Electoral Commission.

The Chairperson invited Members to comment on the clause.

Adv S Swart (ACDP) understood that there would need to be an amendment if there was a removal of the equitable allocation, however, this would be in direct contradiction to Section 236 of the Constitution. As such, he asked for clarity on whether this amendment would be constitutional.

Mr A Roos (DA) highlighted that a submission was made to consider removing the equitable (0.25%) allocation proposal. It was his understanding that the Committee viewed removing it as undesirable because it went against the constitutional requirement for an equitable allocation.

He supported retaining the current ban on political parties from using funds to defray internal party political disputes to protect public funds.

Regarding the IEC’s proposal that the provisions be extended to prohibit garnishing orders against the money, he wondered if this was necessary as the Bill already contained a clause that speaks to the non-attachment of funds in the MPDF. The DA, he stressed, believed that unless substantive changes are necessary then they should be avoided at all costs and only be dealt with after the election.

Clause 11: Prohibited usage

Mr Salmon said it was argued in the submissions that reference should purely be made to the Prevention and Combating of Corrupt Activities Act (PRECCA); that training from funding from foreign entities should be available for support staff of independent candidates and representatives; that the bribery prohibition falls short of the international law requirements.

The PLS indicated that the donation and donation in-kind specifically cover money, assets and services paid or lent to a political party – and now independent candidates – whereas the PRECCA considers gratification. As such, the inclusion of PRECCA, it believed, would be misplaced. On the other hand, the IEC viewed this as a consequential amendment, and submitted that training and development may be extended to support staff of independent candidates and representatives – which the DHA agreed to.

Mr Pillay supported the adoption of Clause 11.

Mr Roos asked if the use of training and development would be extended to the support staff of independent candidates and representatives but not of political parties.

Mr Pillay explained that the proposal sought to add independent candidates and representatives, as it already applied for political parties. However, he asked for further clarity.

The Chairperson asked Members if they sought a response from the IEC now or at a later stage.

Mr Pillay requested that the IEC be provided the opportunity to provide clarity to Members.

Ms Love highlighted that the current legislation was clear that the donations received can be used for the training of any member of a political party.

Mr Roos also supported the adoption of Clause 11.

As no objections were noted Clause 11 was duly adopted by the Committee.

Clause 13: Disclosure of donations

Mr Salmon stated it was submitted that an amendment be introduced requiring companies and trusts to disclose their beneficial ownership information when donating to a party or independent candidate; that reliance on what the intention of the donation is difficult to please; that the Executive Ethics Code was declared unconstitutional in a court case, given the lack of requirements to disclose donations to intra party election campaigns, and that this principle should be equally applicable to parties and candidates; and that the disclosure threshold should be removed entirely and for donations to be disclosed.

In its submission the DHA rejected the suggestion to introduce a new clause requiring companies and trusts to disclose their beneficial ownership information as this was beyond the purpose of the PPFA.

The IEC viewed these as substantive submissions and proposed that they be deliberated by the next parliamentary administration with policy consideration by the DHA.

Mr Roos said the DA believed that the Committee had to produce a report on the impact of the PPFA on political parties and funders which could advise the substantive changes. Given this, he agreed with the DHA’s position that the clause not be included in the Bill and rather form part of a review of the PPFA in the next term.

The Chairperson asked if any other Member opposed this view.

Mr Pillay agreed with the proposal.

Clause 14: Donation Prohibitions

Mr Salmon said it was argued in the submissions that repeated alliance intention would be difficult to police, and that independent candidates and representatives should be included in this section to prevent them from having undue influence, which the DHA agreed with.

The PLS expressed concern that there was no legitimate reason for the deletion of the original Section 10 of the Act which prevented any person or entity from delivering a donation to a member of a political party other than for political party purposes. Furthermore, the PLS disagreed with the DHA’s explanation that the original section criminalised members of political parties when they receive gifts for donations and donation in kind.

Essentially, the PLS argued that there should be inclusion of independent candidates and representatives in the clause, but the original reference to donations and gifts in the Act should not be removed.

Mr Roos highlighted that the DA agreed with the PLS’ belief that Section 10 of the Act should remain as is, apart from the addition of independent candidates and representatives. The key issue would be how to record a donation to an individual and what the limits will be.

Mr Pillay also agreed with the PLS’ proposal to leave the section as is, with the addition of independent candidates and representatives.

Clause 17: Reporting obligations of a party

Mr Salmon outlined the recommendations, which were that a person intending to contest an upcoming election as an independent may register their intention with the IEC any time after the preceding election. Moreover, they must inform the IEC of the vehicle they wish to campaign under. From the date of registration, the independent candidate should be treated equally with registered parties for all purposes, including campaign, taxation and disclosure.

The IEC agreed that the Act should be amended to include a clause that provides for the registration of intentional or aspirant independent candidates at the time when the intention is made known. In its submission the PLS indicated that this should make reference to the Electoral Act and not the PPFA regarding the intention to run.

Mr Pillay supported the PLS’ recommendation that it should make reference to the Electoral Act and not the PPFA.

Mr Roos stated that the DA supported the proposals of independents registering their interests to contest and indicating what their financial vehicle will be so that they can manage the electoral funding in the most tax-efficient manner and also that it should make reference to the Electoral Act.

Mr T Mogale (EFF) said the EFF agreed with the proposal for there to be disclosure by all independents and political parties who intend to contest.

Ms Love asked if the Committee would allow the Chief Electoral Officer (CEO) of the IEC to provide responses as the idea of incorporating this into the Electoral Act missed some of the issues that the Commission has tried to raise.

Mr Sy Mamabolo (CEO of the IEC) thought that having a register for independent candidates was not the best approach to take. Through its suggestion, the IEC sought for prospective independents to serve notice of their intention to contest elections, whereupon the reporting obligations will arise. This is related to the party funding regime, rather than the Electoral Act regime, he added.

Ms Love added that the critical issue was to avoid retrospective obligations. For instance, if an individual seeks to run as an independent in 2029 and have to raise funds for that purpose, they do it knowingly that they have the obligation to report.

Clause 18: Independent Bank Accounts

Mr Salmon said the submissions point out that tax exemptions and diverse campaign juristic structures should be allowed for independents, not just for a sole proprietor as is suggested by the reference to their own personal bank account. They also indicated that the clause ignores the operational and financial requirements of running a campaign as an independent, and recommended that Section 12A (1)(b) of the PPFA should be amended to ensure that the personal accounts of independents are separate from the use of donations.

The PLS proposed that Section 12A (1)(b) should provide that independents keep a separate bank account with a bank registered in terms of the Bank Act, to which all money allocated to him or her from the MPDF must be deposited, which the DHA and IEC agree to.

Mr Roos felt that the clause should allow for the registration of a bank account under a juristic person, as long as that is registered with the IEC.

Mr Pillay supported the proposal for independents to be required to keep a separate bank account.

Clause 19: Repayment of unspent money

Mr Salmon said the IEC agreed that the amendment was consequential only to independent representatives, and that the new Section 13A of the PPFA should apply only to independent representatives and not political parties because the latter can still use the funds for their remaining members, whereas independent representatives have no other members to handover their unspent money should they be removed or pass on.

Ms Legwase supported the adoption of the clause.

Clause 20: Investigative jurisdiction of the IEC

Mr Salmon said the submissions argued that to include independent representatives for consistency and to ensure equal oversight; that there be consistency across the Act on independents; that Section 14 (1) and (4) of the PPFA both refer to compliance only by political parties and independent candidates but not representatives. Both the IEC and the DHA agree with this submission. Whilst the PLS disagrees that there is a need to include independent representatives.

Mr Roos agreed with the IEC and DHA’s submission to include independent representatives, as it ensured that there was clarity.

Mr Pillay also voiced his support for the IEC and DHA’s submission.

Clause 24: Penalties for contravening the PPFA

Mr Salmon read out the provisions of the clause to Members.

The PLS, he stated, initially agreed that Section 19 (4) of the Act should include reference to independent candidates, however, after due consideration it noted that the section prevents a person from donating to a member of a political party, instead of a political party itself. Given this realisation the PLS questioned whether this would be applicable to independent candidates as they are one person. All donations should be made to the independent candidate and not another person.

The IEC believed that the proposed amendment should be considered in the next parliament as it was substantive.

Mr Roos agreed with the IEC’s submission that the clause be deferred to the next parliamentary administration.

Mr Pillay also supported the IEC’s proposal. He then asked the PLS to clarify its position on the matter.

Ms Halley referring to Section 19 (4), which says any person making a donation to a member of a political party instead of the political party concerned to circumvent the provisions of Chapter 3 commits an offence. Initially, the PLS agreed with one of the submissions which questioned why this section only pertained to political parties. However, it considered whether there could be a scenario where an individual makes a donation to somebody other than the independent candidate.

If the intention of the clause was to bring parity then the PLS proposed that the Section be redrafted to read ‘any person who makes a donation to any person including a member of a political party, instead of the political party or independent candidate concerned, to circumvent the provision of Chapter 3.’

Mr Pillay noted the explanation provided by the PLS and suggested that the Committee consider including the proposed amendment into the clause, in order to bring parity between independents and political parties.

Ms Legwase supported Mr Pillay’s recommendation.

Ms Halley noted the IEC’s proposal to not include a specific amount for a fine that must be paid within the Act and that it should rather be included in the regulations.

The Chairperson asked if Members opposed this suggestion.

Adv B Bongo (ANC) supported the proposal made by the PLS.

Clause 26: Granting the President the discretion in determining regulations

Mr Salmon highlighted that many of the submissions opposed the clause on the basis that it undermined parliamentary accountability, and they instead advocated for full parliamentary control in delaying the clause until proper public participation on the amendments. They proposed various alternatives, such as extending the mandate of the Independent Commission for the Remuneration of Public Office Bearers; including the Minister of Finance; or requiring the President to consider objectively measurable norms and standards from other democracies; or with reference to the Consumer Price Index or the minimum wage.

The PLS said it could be argued that the president has been assigned plenary power when he used to only act on the resolution of the National Assembly. Furthermore, there is no definition for Minister referred to in the PPFA. It also indicated that it should be after consultation and not in consultation.

Both the DHA and the IEC agreed that in order to address concerns raised the powers of the president to make regulations in Clause 26 (a) they suggest going back to the original formulation, which reads that ‘The president, acting on the resolution of the National Assembly, may proclaim in the gazette regulations in respect of matters contemplated in these sections.’

Mr Pillay felt that ‘acting on the resolution of the National Assembly’ was sufficient as it required there to be consultation.

Adv Bongo agreed that the clause should include acting on the resolution of the National Assembly.

Mr Roos indicated that in the previous meeting the DHA proposed withdrawing the clause altogether.

Ms M Modise (ANC) also supported the inclusion of acting on the resolution of the National Assembly into the clause.

Clause 29: Funding formulas and limits

Mr Salmon mentioned that the submissions called for the retention of the existing formula and rejection of the proposed one. They pointed out that the amendments to the regulations made no mention of the consultation the president is required to have with the Committee and Minister, which was in contradiction with Clause 6.

The DHA agreed with the proposal that every independent candidate who wins a seat in Parliament gets 0.25% of the funds per seat, rather than apply the 67/33 formula. Whilst the IEC called for the return back to the 67/33 split. Moreover, it believed that this proposed amendment was consequential given the entrance of new players in the political sphere; which if not dealt with, would see independents approaching the courts for relief.

Ms Love stressed that what was presented did not correctly reflect the Commission’s position. It was stating that the introduction of independent candidates can create differences in relation to the distribution of the amounts of the two funds. As such, it felt that the clause was consequential.

Adv Swart believed that the important question was whether it was a substantive or consequential amendment. Another issue was that the test in Harksen versus Lane had not been addressed by the department, with the consequence being discrimination against smaller parties. Given these factors, the IEC’s point that litigation may arise, and what formula will be used to distribute the R300 million appropriated by Parliament for political parties in May, he called for the Committee to consider deferring the matter to the next parliamentary administration and remain with the current 67/33 formula.

Mr Roos agreed that the matter should be deferred to the next parliamentary administration, where the Committee will be able to consider a report on the PPFA and its impact.

Adv Bongo was pleased that the IEC agreed with the department’s view that the amendment was consequential. In his opinion the allocation should be done per seat, as it would provide an equitable and proportional outcome.

Mr Pillay supported Adv Bongo’s submission.

Ms Modise also voiced her support for Adv Bongo’s submission.

The Chairperson mentioned that sufficient work was done by the DHA to create the 90/10 formula. However, he noted the concerns raised by the smaller parties on the matter.

Mr Mamabolo pointed out that Regulations 7 and 9 of Schedule 2 make reference to parliamentary resolution. He asked if this was the intention of the Committee.

The Chairperson indicated that it would be carried by the resolution of the National Assembly.

Adv Bongo seconded the Chairperson’s remarks.

Clause 38: Broadcasting for political parties and independents

Mr Salmon said that both the Department of Communications and Digital Technologies and DHA agreed that amendments must be made to the Electronic Communications Act on the extent of including independent candidates and representatives, in line with the Constitutional Court (ConCourt) Judgement.

Mr Pillay supported the proposed amendment.

Funding of represented political parties by legislatures

Mr Salmon mentioned that this was contained in Section 23 of the PPFA, but not included in the current Bill. It stipulates the responsibility of the accounting officers to report annually. As no reference is made to independent representatives, it has been recommended that Section 23 (2) of the PPFA should be amended to include them. This was agreed to by the IEC, DHA and the PLS.

Mr Pillay supported the proposed amendment.

Ms Modise also supported the proposed amendment.

Section 27 of the Electoral Act

Mr Salmon explained that this section refers to the form in the case of a registered party not represented in the National Assembly or provincial legislature – confirming that the party has submitted, in a prescribed manner, names, identity numbers and signatures of voters.

In the previous meeting the department outlined that it and the IEC had filed explanatory affidavits to assist the ConCourt in arriving at a fair decision. Thus, it requested that Parliament process the Bill and allow the court process to unfold.

Mr Pillay agreed to the department’s request.

Clause 31: Voting if not where registered

Mr Salmon said the submissions questioned why voters were not permitted to vote for regional seats and provincial legislatures in another voting district if they are not on the voters roll for that province. In its submission the PLS outlined that the purpose of this clause was to make it clear that the allocation of seats per region is determined by the registered population in a region. It follows then that only voters in a region may influence the outcome of an election in that region. However, it felt that greater consideration should be given to this section.

The IEC’s suggested reformulation would be that ‘provided that such voter may only vote in the election for the regional seats in the National Assembly in terms of Section 1A, and for the provincial legislature if that specified voting district is situated in a province within which the voter is registered.’

Mr Pillay thought that the presentation made by the IEC extensively covered the logistical challenges it will face if voters are permitted to vote for regional seats and provincial legislatures in another voting district. Given this, he supported the IEC’s position.

Mr Mogale felt that the clause was draconian as it had the potential to disenfranchise a number of individuals who did not necessarily comply with the IEC’s notification process. While he understood the logistical difficulties of printing that many ballots, he felt that the Committee should not move to adopt the clause.

Ms Modise proposed that the Committee defer the discussions on the clause to later discussions.

The Chairperson agreed with Ms Modise as he felt that Members had to reach a consensus.

Mr Salmon indicated that the Committee support staff would provide two formulations of the clause for Members to discuss in the next meeting.

Electoral Commission Act Omissions

Mr Salmon mentioned that this referred to aspects of the ECA which were omitted, such as Sections 6 (2)(b)(d), Section 9, Section 20 and Section 23. The PLS agreed that where required the sections should refer to independent candidates, but where they only refer to political parties it should remain as such. The IEC proposed that Section 6 (2)(b) should be amended to delete the words ‘party political’ and replace it with the word ‘political’.

Mr Pillay supported the proposed amendments.

ECA

Mr Salmon indicated that technical amendments were proposed in the submissions on the ECA.

Financial Management in Parliament Act

Mr Salmon said the PLS argued that the Bill neglected to make consequential amendments to Section 65 (1)(f) which speaks to regulations relating to funding of political parties.

Mr Pillay supported the proposed amendment.

Mr Mogale also supported the proposed amendment.

Ms Halley stressed that there must be certainty under Clause 7 and 29 that the formulation does not adversely affect smaller parties and independent candidates.

Ms Sarah Govender (Senior State Law Advisor) mentioned that during the presentation of the A-List of the Bill there may be consequential matters that may have not arisen during the deliberations as a result of the changes made.

Adv Khumalo indicated that the department noted the Committee’s deliberations and did not have anything to add.

The Chairperson noted that the Committee had deliberated on each clause except Clause 31. He was pleased with the input provided by the two departments, the IEC and PLS on the Bill. All that remained was for Members to deliberate and adopt the A-List version of the Bill. He asked the Secretariat when the Committee would be able to do so.

Mr Mathonsi said the Committee could reconvene the following day to deliberate on Clause 31, and then meet on Friday to discuss the A-List.

Adv Swart asked if Members would still be given an opportunity to deliberate further on the 90/10, or if it had been resolved given the support by the majority party. If it was the latter, he mentioned that the ACDP opposed the decision.

The Chairperson felt that Mr Swart had been unfair to the Committee, as it is well-known that it usually reached decisions based on the views expressed, not along party lines. Nevertheless, he noted the ACDP’s objection.

Adv Swart explained that he did not intend to cast any aspersions, and had only got the impression that was the opinion being put.

The Chairperson noted his explanation. Thereafter, he indicated that the Committee would reconvene at 09:00 the following morning.

He asked the SLA when the A-List would be ready for Members to deliberate on.

Ms Govender said that the SLA originally planned to prepare the A-List for Friday, however, it could do so by Thursday if required.

The Chairperson mentioned that Friday would be fine.

Ms Govender noted this, but repeated that it could still present it on Thursday.

Adv Bongo proposed that the SLA present the A-List to the Committee on either Wednesday or Thursday due to the time constraints.

The Chairperson noted the proposal, and said the Committee expected to deliberate on the A-List on Thursday.

He thanked all those who made submissions on the Bill.

Ms Love also extended thanks to the Committee for the robust interaction and transparency shown during the processing of the Bill.

The meeting was adjourned.