IPID A/B: adoption; Electoral Matters Amendment Bill: Content Advisor & PLS briefing (with Deputy Ministers)

Meeting report

The Chairperson welcomed members of the committee, the Deputy Ministers of Police and Home Affairs, the content advisors, and legal services. She then went through the agenda for the day, noting that they will be dealing with the adoption of the Independent Police Investigative Directorate Amendment Bill (IPID) and the report. Afterwards, they will deal with the Electoral Matters Amendment Bill.

In their last meeting, the Committee had further deliberations on the IPID Amendment Bill, where Mr Badenhorst raised concerns over certain clauses in the bill, particularly Clause 3, where it is not expressly stipulated that IPID is independent of SAPS. There was an issue with Clause 4 on the safeguards to guarantee the independence of the panel. Further, he felt the clause fell short of ensuring the panel would be appropriately qualified. He raised an additional concern about Clause 13, which seeks to place the determination of IPID investigators’ conditions of service, salaries, and allowances in the hands of the Minister. He went on to say the Bill should not be signed into law in its current form because it will fail the requirements of the McBride judgement and will be challenged. Mr Dodovu raised the point that the bill strengthened IPID’s independence. He differed with Mr Badenhorst and believed that the Bill has gone a long way to cure the defects identified by the Constitutional Court in the McBride judgement.  The Bill also addresses the relevant regulations in terms of the appointment of the panel.  He spoke about the requisite skills, expertise and qualifications of the people who would be appointed.

The Department responded to the issues raised by Mr Badenhorst and assured the Committee that in terms of the independence and impartiality of IPID, the Act implores each state organ to assist the Directorate in maintaining its impartiality and performing its functions effectively. The Minister will be guided by the legal framework for making appointments of national heads, in terms of the Public Service Act, the regulations, and the Executive Protocol 2020.

The Chairperson said that prior to adopting the Bill, she would like to invite the Parliamentary Legal Services to comment if they have anything to add.

Mr Buleni Simani, Parliamentary Legal Advisor, said that they have nothing further to add regarding the Bill. The office made its submission during the Portfolio Committee stage.

The Chairperson checked if Members had anything further to add before the adoption of the bill.

Adoption of the Independent Police Investigative Directorate Amendment Bill [B21B-2023]

The Chairperson tabled the Bill for adoption without further amendments.

This was supported by Ms M Bartlett (ANC) and seconded by Mr E Mthethwa (ANC).

Mr Badenhorst objected.

The Bill was adopted without proposed amendments.

The Chairperson noted that in the last meeting, the DA requested that their minority view be included in the report. A revised report, including that, has been sent to members.

Committee Report on the Independent Police Investigative Directorate Amendment Bill [B21B-2023]

The Committee Secretary took the Committee through the report.

The Bill was referred to the committee on 5 December 2023. The Select Committee on Security and Justice invited stakeholders and interested persons to make written submissions and published the adverts in all official languages on Parliament’s electronic platforms from 8 December 2023 to 26 January 2024; this was extended to 2 February 2024. Seven submissions were received from stakeholders, and the department’s responses are included in the report.

The Democratic Alliance rejected the Independent Police Investigative Directorate Amendment Bill 21B of 2023 (“the Bill”), as it held that the Bill does not take to heart the pronouncements of the Constitutional Court in McBride v Minister of Police and Another [2016 (11) BCLR 1398 (CC)] (“McBride”) and does not go far enough to ensure IPID’s institutional and operational independence. The Democratic Alliance held the view that the lack of independence in the appointment of the Executive Director does not contain sufficient safeguards in guaranteeing the independence of the panel to be appointed by the Minister to assist him in identifying suitably qualified candidates for the Directorship.  Clause 4 of the Bill also fails to ensure that the panel itself will be appropriately qualified. Furthermore, clause 13 of the Bill seeks to place the determination of IPID investigators’ conditions of service, salaries, and allowances in the hands of the Minister while conditions of service are currently “on par with members appointed as detectives” in the SAPS. For these, amongst other reasons, the DA held that the Minister still has significant powers in terms of the Executive Director’s appointment, fails to achieve the entrenchment of IPID’s institutional and operational independence and to “make it expressly clear that IPID must be independent, impartial and exercise its powers and functions without fear, favour or prejudice”.

The Chairperson said that, having considered the IPID Amendment Bill, the Committee recommends that the Council pass it without proposed amendments. She asked if members would like to make any additions or corrections to the report.

There was no response. She tabled the report for adoption.

Ms A Maleka (ANC) moved for the adoption of the report. Mr K Motsamai (EFF) seconded this.

The report was adopted.

The Chairperson said the Committee dealt with an important bill as IPID plays an important watchdog role over SAPS. As an institution, it should exude the necessary independence and impartiality when exercising its mandate. They have been assured that the Bill sufficiently addressed the McBride judgement and that IPID will have the required independence as a result of this Bill. They particularly welcome clause 4, which provides for the appointment of a panel to assist the Minister with the nomination of an Executive Director and the name of this candidate to be forwarded to the parliamentary committee for approval. She thanked the public for their comments on the Bill, as well as the Civilian Secretariat for Police Services, the Department of Police, members of the committee, and all the legal team that provided support for this process.

Read: ATC240313: Report of the Select Committee on Security and Justice on the Independent Police Investigative Directorate Amendment Bill [B21B-2023] (National Assembly – S75), dated 13 March 2024

The Minister excused the Deputy Minister of Police and his department.

Electoral Matters Amendment Bill (EMAB) Background

The Chairperson provided a summary of the process up to date. EMAB was passed by the National Assembly the previous day and sent to this committee. There were several joint committee meetings with the Portfolio Committee on Home Affairs during the initial processing due to the urgency of this bill. In a meeting held by the Portfolio Committee on Home Affairs on December 4, 2023, the Senior Parliamentary Legal Advisor briefed the committee and indicated that joint processes do not often happen with legislation except with finance committees and money bills. The committee was assured that their draft legislation process would pass constitutional muster. However, the legal advisor cautioned that if any material amendments are made to the Bill by the Select Committee, then another public participation process must be followed. If there are no material amendments, then the legislative process could unfold.

The first joint meeting on the briefing on the Bill took place on 12 December 2023. During this meeting, the processing of the Bill was discussed, and it was agreed that the two committees would jointly host public hearings and receive the responses from the department and the Independent Electoral Commission (IEC). The committees advertised public participation on the Bill from 30 December 2023 to 26 January 2024. 13 submissions were made, of which 10 were of a substantive nature. The joint committees then met on 6 February 2024 to receive a presentation on the summary of submissions by the Content Advisor and to engage in joint public hearings on the Bill. During the hearings, 9 organisations made presentations to the joint committee on their submissions.

On 9 February 2024, the joint committees held a further meeting to receive the responses to the submissions from the Department of Communications and Digital Technology, the Department of Home Affairs, the IEC, and the Parliamentary Legal Services. The Department of Home Affairs requested to make a more substantial presentation on the responses in the next meeting, which took place on 14 February 2024. The Select Committee left the Portfolio Committee to continue with its deliberations on the Bill on its own, with the understanding that the Select Committee will continue with its deliberations after the adoption of the Bill.

During this process, Parliamentary Legal Services advised that even though the EMAB has been tagged as a Section 75 Bill, section 34 of the Financial Management of Parliament and Provincial Legislatures Act has been amended, and this may, therefore, affect the budget of provincial legislatures. The Committee was advised to request provincial legislatures to comment on the bill. The Committee sent correspondence to all the relevant provincial legislatures for comment, but no comments were received. Further correspondence was sent on 8 March, and a single response was received from the KwaZulu-Natal provincial legislature so far. If additional responses are received, these will be communicated.

Now that the Portfolio Committee has deliberated on the Bill and made amendments, which were technical and consequential in nature, this matter will be further clarified in the second presentation that Members will receive.

She invited the Content Advisor to present the summary of the clause, comments, and responses made during the public participation process. Thereafter, they will receive a presentation by the Parliamentary Legal Services on the amendments made by the Portfolio Committee on the Bill.

She hoped that these presentations would assist the Committee in its deliberations.

Clause Submission Summary: Electoral Matters Amendment Bill

Mr Adam Salmon, Content Advisor, Portfolio Committee on Home Affairs, explained that this is the process after the initial debate where the Portfolio Committee left the Select Committee, and the issues are raised by the clauses where there were submissions and the responses by the Department, IEC and PLS. these are summarised and are reflected in the B-Bill.

Mr Salmon presented.

Clause 3: Definitions

Section 1 of the Political Party Funding Act, 2018, is amended by the insertion after the definition of “funds” in the definitions of “Independent Candidate” and “Independent Representative”. Submitters argued that simplifying the definition of Independent Candidates to exclude party membership as a disqualifying criterion and rather only excluding those that are nominated on party lists. The Bill's definition of an independent candidate excludes party membership, while the Electoral Amendment Act 1 of 2023 does not. The name of the Multi-Party Democracy Fund to Multi-Party and Independent Democracy Fund is unnecessary as it is clear what the fun is for. The terms “donation” and “donation in kind” should reference “independent candidates”.

DHA, Parliament Legal and IEC agreed.

Clause 7: Funding Formula

This clause is dealt with in substance in clause 29.

Clause 9: Use of Funds

The amended subsection provided that any money received from the fund may not be used for personal use or to cover any costs related to litigation against the political party or representative.

The IEC argued that the primary purpose of the section is to prohibit the use of money in intra-party disputes, and this must be clearly expressed; s7(3)(d) should be removed from Bill as it is contradictory and the earlier paragraphs serve the object and purpose; The provision should also extend to prohibiting garnishee orders against the money held in the Funds by the Electoral Commission.

Parliament Legal is of the opinion that the confusion could have been created by the attempt by the drafter to create a clause to prevent independent candidates from using funds for internal legal fees. However, independent candidates would never have “internal party disputes” as they are one person. Either the section should be deleted, or re-drafted.   Adding Garnishee orders is a substantive submission and would require further investigation by the DHA, possibly requiring a call for public comments.

DHA agreed that words “or to cover any costs related to any litigation against the political party or independent representatives” must be deleted from the new section 7(3)(d).

Clause 11: Prohibited Use

Submitters argued that the relevant sections from the Prevention and Combating of Corrupt Activities Act (PRECCA) should simply be incorporated into the PPFA. Bribery prohibition falls short of international law requirements.

Parliament Legal: the definition of “donation” and “donation in kind” – specifically covers money, assets, services paid or lent to a political party and now an independent candidate. PRECCA considers gratification. The inclusion may be misplaced, but further policy consideration may be of assistance.

IEC: The Commission views this as a consequential amendment, and submits that training and development may be extended to the support staff of IC or IR.

Clause 13: Donation Disclosure

Submitters argued that an amendment should be introduced requiring companies and trusts to disclose their beneficial ownership information when donating to a political party.

There is a repeated reliance on intention, which will be difficult to police.

The Constitutional Court ruled that the Executive Ethics Code was unconstitutional because it failed to require disclosure of donations to intraparty election campaigns.

This principle should be equally applicable to all parties and candidates contesting party leadership.

Disclosure thresholds should be removed entirely, and donations should be disclosed.

IEC: views these as substantive and should, therefore, be deliberated on by the committee / new parliament, with policy consideration provided by the DHA.

Clause 14: Donation Prohibition

Submitters argued that repeated reliance on intention will be difficult to police and that IC/IR should be included in the provision to guard against undue influence.

DHA agrees that independent candidates and representatives must be included in this provision for certainty of oversight.

Parliamentary Legal – The current reading of section 10 prevents any person or entity from delivering a donation to a member of a political party other than for political party purposes. The newly amended s10 adds a proviso that no person can donate to a political party or a member of a political party “in the expectation that it will influence an award of a tender, license or approval, etc.”.  The issue is that the deletion of the original 10 required a justification from the DHA. DHA explained that the original s10 criminalised members of a political party receiving gifts. However, Legal disagrees as the definition of donations is specific to the funding of political parties and now independent candidates.

Clause 17: Reporting Obligations Party to Account

Submitters argued that registered political parties’ receipts and accruals are exempted from normal tax. There is no such provision for independent candidates and representatives. It was also suggested that the requirement that an independent should register a bank account in their own name means that other types of tax exemption are also not available.

IEC agrees 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.

Parliamentary legal – this is a new provision and moves beyond the  purpose of the Bill which is to include independent candidates, this requires policy consideration and possibly further public involvement.

Clause 18: Independent Bank Accounts

A section is inserted that an independent representative must deposit all donations received into an account with a bank registered as a bank in terms of the Bank Act, in the independent representative own name.

Clause 18: Independent donation account

Submitters argued for grant tax exemptions and to allow diverse juristic person options as campaign structures rather than just sole proprietor for ICs/IRs as is suggested by the bank account of an IC/IR being in their own name.

This section ignores the operational and financial requirements of running a campaign as an independent candidate. Suggestion that section 12A(1)(b) should be amended to ensure that the personal accounts of independent candidates are separate from the account used for donations.

LEGAL SECTION PROPOSAL. Section 12A (1)(b) provides that an independent representative must “keep a separate account with a bank registered as a bank in terms of the Banks Act, into which all money allocated to him or her from the Funds must be deposited”. DHA Agrees

IEC agrees saying this is consequential as there is a need for ICs to declare their donations as soon as their intention to contest is made known. For the upcoming NPE2024, the ICs will be required to make declarations upon certification as ICs.

Clause 19: Repayment of unspent money

Submitters argued that this amendment is impractical with respect to political parties, as they can easily fill vacancies, unlike independents. They submit that the new section 13(3) of the PPFA should apply only to independent representatives.

The IEC agrees that the clause is consequential to only IRs and, therefore, that the new section 13(3) of the PPFA should apply only to IRs and not political parties.

Clause 20: Investigative jurisdiction of the IEC

Submitters argued that independent representatives should be included for consistency and equal oversight. They also urge the Bill to be examined for consistent use of the terms ‘independent candidate’ and ‘independent representative’. Section 14(1) and (4) of the Political Party Funding refer to compliance only by political parties and independent candidates, not independent representatives.

The IEC agrees with the submission that s(14)(a) of the Bill only refers to independent candidates, not independent representatives. The provision should be rewritten to eliminate ambiguity.

Legal Services: I disagree…Section 14 relates to the Commission's duty to monitor political parties' compliance with the Act. The amendment, therefore, now includes ALL independent candidates, regardless of whether they receive a seat in the NA or provincial legislatures. Therefore, there is no need to include independent representatives. However, this section could be interpreted widely to mean that once an independent candidate gains a seat, the provision does not apply to them. The DHA should advise the policy intention.

The DHA advised that the Policy intention is for the IEC to monitor compliance with political parties, independent candidates and independent representatives. For completeness, we propose that independent representatives be expressly included.

Clause 24: Penalties for contravention of the PPFA

Submitters argued that the Bill should instead seek to streamline and standardize the manner in which political parties receive donations, empower the Electoral Commission to monitor parties’ bank accounts, empower the Electoral Commission to refer any suspected breaches of the PPFA to the National Prosecuting Authority and allow for the sharing of financial information about political parties’ bank accounts held by the Financial Intelligence Centre with the Electoral Commission.

Only the maximum donation limit and the total donation limit - will be subject to the three factors listed in Clause 24(1)(b). The disclosure threshold [Clause 9(1)(a)] must also be subject to these factors in line with the memorandum on the objects of the bill. the list of factors in Clause 24(1)(b) should include: the prevalence of public-sector corruption; and the importance of transparency for the exercise of constitutional rights, including the rights in section 19(3) of the Constitution; and the President should be required to consult with the Commission before making regulations affecting disclosure thresholds or limits, or donation limits.

Equalize treatment of ICs/IRs with parties regarding permissible and prohibited donations. The provisions of clause 24 appear wholly ineffectual without an enforcement mechanism. The Bill does not specify how donations are to be monitored and by whom.

Legal Services: Initially agreed that s19(4) should include reference to independent candidates, however on a closer analysis of s19(4), it would appear that s19(4) prevents a person from donating to a member of a political party instead of the political party itself. Legal now questions whether this would be applicable to independent candidates, as they are one person, there would always only be a donation made to the independent candidate and not another person.

IEC: The Commission considers this substantive rather than consequential. If there is a view that the Commission’s investigative capacity must be strengthened, the same must be debated in the new Parliament. It also suggests that perhaps the reference made to “Chapter 3” on the Direct Funding of Political Parties in the provision should be removed.  Further requests that the fine amount (R200 000.00) be removed from the Act and placed in the regulations. Keeping it in the Act would make it too onerous to adjust when the need arises

DHA agrees that independent candidates and independent representatives should be included in s19(4). 

Clause 26: President’s discretion in determining regulations

Submitters expressed strong opposition to this clause, arguing it undermines parliamentary accountability and risks manipulation of thresholds and limits. They advocate for retaining full parliamentary control and delaying the clause until proper public participation in any such amendments. The amendment to section 24 (5) of the Political Party Funding Act would render the current regulations contained in Schedule 2 of the PPFA transitional, which would introduce unnecessary uncertainty into the regulation of the private funding of political parties and independent representatives. The proposed amendment of section 24(1)(a) of the PPFA would remove the requirement that the National Assembly resolve to instruct the President to issue regulations.

Legal Section: It could be argued that the President has been assigned plenary power when he used to only act on a resolution of the National Assembly. Furthermore, there is no definition of Minister referred to in the PPFA. It was indicated that in consultation is problematic.

 IEC & DHA: In order to address concerns raised regarding the powers of the President to make regulations in Clause 26(a), we    suggest going back to the original formulation, which reads as follows:

"(1) (a) The President, acting on a resolution of the National Assembly, may by proclamation in the Gazette make regulations in respect of matters contemplated in sections 6(2), 7(2)(e), 7(3)(d) 8(2), 8(5) and 9(1)(a).”.

This formulation together with the safeguards, viz

“(i) the amount of money previously appropriated by Acts of Parliament for the Political Representatives Fund within the previous five financial years;

(ii) the effects of inflation on the value of money over time; and

(iii) the costs associated with participating as a political party, independent representative or independent candidate in elections and the democratic process in South Africa, in our view addresses the issues raised.

Clauses 7 & 29 Schedule 2: Regulations on Party Funding

Submitters argued that increasing proportional allocation to 90% and reducing equitable allocation to 10% will have negative consequences for smaller parties and independent representatives who rely more on equitable allocation. They call for retaining the existing formula and rejecting the amendments. Inconsistencies and contradictions between the proposed amendments to Section 24 and the regulations in Schedule 2, and since regulations may not contradict their enabling legislation, they would be invalid and ultra vires the PPFA once amended. Proposed amendments to regulations 7 and 9 of Schedule 2 should be rejected.

The DHA agrees that this suggestion is better in that it does not result in the negative unintended consequences of the two-thirds-one-third split and takes care of the concerns raised regarding the 90/10 split.            

IEC: This is consequential because of the entrance of new players in the political space (i.e., Independents). The Committee must, therefore, deliberate on the matter and reach finality. Smaller and independent representatives are likely to be adversely impacted. This might raise discontentment, leading to possible court cases on the matter. The rationale behind the change of the equitable percentage will be left to the DHA to advise on.

Legal Services- This is a substantive amendment. The amendment reverts to the original formulae. If the change in formulae unfairly discriminates independent representatives or smaller parties, the Committee must be mindful of Harksen v Lane, does the provision differentiate btw people or categories of people? If so, does it bear a rational connection to a legitimate government purpose.

Clause 38: Broadcasting for political parties and independents

COSATU proposes that the principles of proportionality based on representation in Parliament and the Provincial Legislatures for funding should be cascaded to provisions for broadcasting, instead of treating all parties and candidates equally.

The IEC is of the view that the matter should be dealt with by ICASA.

The DHA agrees with the suggestion to include independent representatives.

Clause 31: Voting if not where registered

Submitters questioned why a voter is not permitted to vote for regional seats and provincial legislatures in another voting district if they aren’t on the voter’s roll for provinces. They also questioned whether a re-draft may be necessary, the use of the word “or”.

Parliament Legal understood that the purpose of the clause was to determine the allocation of seats per region by the registered population in that region. It follows that only voters in that region may influence the outcome of the election for that region. However, the submitters' concerns regarding the drafting of this section should be given greater consideration.

IEC: Suggested Reformulation S24A. Provided that such voter may only vote in the election for the regional seats in the National Assembly in terms of Schedule 1A [or] and for the provincial legislature if [his or her name appears on a segment of the voters’ roll for the province in which that specified voting district is situated that specified voting district is situated in a province within which the voter is registered] that specified voting district is situated in a province within which the voter is registered”.

S24A is no longer available for application at Voting Stations. It is now only available by pre-notification by a date regulated in the election timetable. The Voter must indicate the other voting station at which the vote will be cast. It is no longer necessary to keep surplus ballot papers at all 23 000 stations.

(See Presentation)

Amendments in Electoral Matters Amendment Bill

Ms Telana Halley (Parliamentary Legal Advisor) took Members through the B-Bill, reading out all the amendments made by the Portfolio Committee.

(See video)

Discussion

The Chairperson thanked the presenters and allowed the Department of Home Affairs an opportunity to make any additions, especially in regard to the amendments made by the Portfolio Committee.

Mr Njabulo Nzuza, Deputy Minister of Home Affairs, said the matters raised were thoroughly addressed in the two reports. He noted that they are mainly dealing with consequential amendments due to the inclusion of independents. An issue might arise with the Political Party Funding Act, which, as a result of the inclusion of independents, meant the department had to do a bit more work. They ensured they were in line with the Constitution on political party funding by ensuring the split was equitable and proportional.

Adv Moses Malakate, Legal Advisor, Department of Home Affairs, said he had no further additions.

The Chairperson thanked the Deputy Minister. She said the Committee had received presentations on the consultations regarding the public participation process and the amendments that came out of the Portfolio Committee and were adopted by the National Assembly.

The Portfolio Committee amendments mainly dealt with omissions, changes that did not extend the scope of the Bill, and bringing parity between independent candidates, independent representatives, and political parties. Some of the amendments are related to drafting and have been corrected. She offered an opportunity for members to discuss the presentations that were received. They will have a more structured discussion in the next meeting based on the two presentations. Members are welcome to weigh in if there are any comments from now on.

There were no hands from members.

The Chairperson said members will be informed of the frequency of future meetings. They are on tight deadlines for this legislation, and there will be an election in a few months. She recommended that members take this time to re-familiarise themselves with the matters at hand before their next meeting.

The Chairperson thanked the Content Advisor and the Parliamentary Legal Advisor for the presentation, as well as the Department of Home Affairs.

The meeting is adjourned.