Electoral Matters Amendment Bill: deliberations (with Deputy Minister)

Meeting report

The Chairperson welcomed everyone. She took note of the Members who were present.

She asked the Committee Secretary to confirm apologies.

The Committee Secretary reported that the Minister had submitted an apology, the Deputy Minister would be delayed, and Mr Dangor had also submitted an apology.

The Chairperson stated that there was only one agenda item, the Committee deliberations on the Electoral Matters Amendment Bill.

She asked whether there was legal representation from the Parliamentary Legal Services and the Department of Home Affairs.

This was confirmed.

Mr R Badenhorst (DA, Western Cape) drew attention to an email notification about a meeting scheduled for Monday, 18 March 2024. He asked if permission had been granted for the meeting. Meetings should not be scheduled for Mondays because the day is dedicated to constituency work. Parties were also in campaign mode. He will not be able to attend any meeting scheduled for Monday.

The Chairperson replied that meetings are not normally arranged for Mondays unless urgent matters require attention. The Electoral Matters Amendment Bill should be dealt with expediently in the interest of democracy, given that the election would take place within two months. She requested the Committee Secretary, Mr Gurshwyn Dixon, to respond after the meeting on whether political approval had been obtained.

Mr Badenhorst wished for his objection to a Monday meeting to be noted. He spoke to his whip, and there has been no approval for this meeting. He felt that the Bill was being rushed to include non-consequential matters.

The Chairperson said that the two issues should not be mixed.

Ms M Bartlett (ANC, Northern Cape) said that members who are available on Monday should attend the meeting because of the circumstances. She supported the Chairperson’s explanation.

The Chairperson said Mr Badenhorst was raising an important point about political approval. The Committee will sort this out and get back to him; they don’t want a situation where he can’t attend a meeting, but ultimately, it will be his prerogative. They will try as much as possible to accommodate all members, but it is sometimes difficult.

The Chairperson said that on 13 March 2024, the Committee was briefed on the background of the Bill and the procedures that were started jointly with the Portfolio Committee on Home Affairs. In addition, the Content Advisor presented the public submissions received and responses from the DHA, IEC and legal advisors. Further, the Parliamentary Legal Advisor presented the amendments effected by the Portfolio Committee, the B-version of the Bill. A large number of amendments were technical and consequential in nature. It was agreed that deliberations would continue in this meeting, given the urgency of the Bill.

To assist the process, the Content Advisor will discuss each clause amended by the Portfolio Committee based on the public submissions. Members will be given an opportunity to comment after each clause.


Electoral Matters Amendment Bill: deliberations

Clause 3
Ms Anthea van der Burg, Content Advisor, highlighted the amendment that the terms “donation” and “donation in kind” should reference “independent candidates.”

Throughout the introduced Bill, the A-List was amended to substitute any reference to Multi-Party Democracy Fund for Multi-Party and Independents Democracy Fund. Concerns were raised about the definitions of independent candidates and independent representatives in the Bill. The amended Bill reverts to the definition of independent candidates in the Electoral Act. The definition of Represented Political Party Fund was substituted by Represented Political Party Representatives Fund.
 
Mr Badenhorst wanted to know if the legal advisors could indicate whether any substantive changes were made to the clauses. The Bill was created to accommodate independent candidates per the Constitutional Court ruling, but a host of non-consequential changes were included. He asked that the legal advisor clarify if any of the changes were substantive.

The Chairperson replied that the clause-by-clause process was being followed. Members should raise issues pertaining to the specific clause raised. The legal team had indicated in their presentation that some of the amendments effected by the Portfolio Committee were technical and consequential in nature.

She advised that the process should continue.

Clause 7
The Content Advisor said this clause substitutes subsection 6 of the PPFA. The amendment provides for allocating and paying money to represented political parties and independent representatives.
Based on the submissions, the amended bill omits party and substitutes the clause with parties and independent representatives.

Mr Badenhorst said the clause amends schedule 2 of the PPFA, the formula and regulations for allocating funds to parties and independent representatives. He believes this is against section 236 of the Constitution, which provided for the allocation of funding on an equitable and proportional basis. Allowing the 90/10 principle would be detrimental to smaller parties and their ability to participate in the democratic process. This was a substantive change, and he wanted the legal advisor to comment.

The Chairperson noted Mr Badenhorst’s comment and said the matter would be dealt with simultaneously with clause 29.

Mr T Dodovu (ANC, North-West) agreed that Mr Badenhorst's point was important, but it was not relevant at this stage. They can deal with it when they get to clause 29.

Clause 9
The Content Advisor said this clause amends section 7 of the PPFA. It provides that any money received from the Fund may not be used to cover personal costs, including litigation costs against the political party or independent representatives.

There were no inputs received.

Clause 14
The Content Advisor said his clause amends section 10 of the PPFA. The clause reverts to the original wording of section 10 to include references to independent candidates and independent representatives and removes the reference to party. This would maintain the policy position of the Department that no person may donate to someone other than for political purposes.

There were no inputs received.

Clause 17
The Content Advisor said this clause amends section 12 of the PPFA. Based on the submissions, this inclusion was intended to bring parity between independent candidates and unrepresented political parties.

There were no inputs received.

Clause 18
The Content Advisor said the section ignores the operational and financial requirements of running a campaign as an independent candidate. There was a 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.

There were no inputs received.

Clause 19
The Content Advisor said this amendment to section 13 of the PPFA to refund unspent money at the end of the financial year. It was deemed impractical for political parties. The IEC agreed that section 13(3) of the PPFA should apply to independent representatives only.

There were no inputs received.

Clause 20
The Content Advisor said this clause amends section 14 of the PPFA to include the monitoring and inspection of both political parties and independent representatives. 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.

There were no inputs received.

Clause 24
The Content Advisor said this clause amends section 19 of the PPFA. Reference to the fine of R200 000 was deleted from the Bill and included in the regulations.

There were no inputs received.

Clause 27
The Content Advisor said this clause 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. The IEC and DHA agreed to revert to the wording in the original Act, which provides for the President to act on a resolution of the National Assembly.

There were no inputs received.

Clause 29
The Content Advisor said this clause amends schedule 2 of the PPFA. Submitters said 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.
Mr Badenhorst asked legal services to comment on whether the change in the formula is substantive. In his view, it was substantive. It was against section 236 of the Constitution, which prescribes that funding to political parties should be provided on an equitable and proportional basis. The 90/10 change would be to the detriment of smaller political parties. We have a participatory democracy.

He read out various provisions in the PPFA dealing with the disclosure threshold for donation limits

Clauses 29(g) and 8 of EMAB now amend two clauses, but the threshold and limit amounts are not included in the new clause. Thus, there is no threshold or limit, and this renders the PPFA ineffective until Parliament passes new regulations to set a reporting threshold and upper limits for donations. This was a serious issue. He suggested adding existing thresholds to the new clauses would be easier.

Mr Dodovu did not understand the overwhelming concerns about clause 29. The clause dealt with two aspects: the first was proportionality, and the second was equitability concerning the funding of candidates and political parties. In his view, the 90/10 formula was fine because you award to the parties in relation to what they have obtained. Interestingly, smaller parties are having a problem with this, and he could not understand why. Under normal circumstances, you would not have equitable distribution of funding in this instance because if “I have 70%, I must get my 70% allocation because this is what the people of this country have ruled”. Smaller parties are accommodated. A party that gets 50% does not get 50% of the funding. It receives less, but still, they complain. He supports the 90/10 formula and the clause.

The Chairperson noted the removal of the figures concerning the upper donation limits and disclosure limits and regulations that have to be put into effect after a resolution of the National Assembly. This was a matter of timing. Her question is to ensure there are no gaps. She agreed that putting these limits in regulations, which is in legislation, can be tedious, especially if there are to be any amendments effected, which must then go through any entire legislative process

She asked the Deputy Minister to comment and then the legal advisors.

Mr Njabulo Nzuza, Deputy Minister of Home Affairs, responded to the issue of the 90/10 split in fund allocations. The Constitution provides that the allocation must be both proportional and equitable. The introduction of independents would impact the spread of constituency offices by those who have received a large number of seats.

Regarding the upper limits, he explained that ideally, the state should fund political parties to prevent external influence on those represented in Parliament. However, the state was not in a position to fully fund political parties due to the country's economic situation. Regulations provide flexibility in involving Parliament and do not leave the decision to the President only.

The Chairperson asked the Department to comment on the timing of the regulation, which should be done as soon as legislation is promulgated.

Adv Phelelani Khumalo, Legal Advisor, DHA, said the timing should be closely managed such that after the Bill is passed and before the President could proclaim it into operation, the National Assembly resolution should be in place. There should be no gap in the resolution, empowering the President to make regulations determining the upper and disclosure limits. The regulation should be gazetted the day after the Act comes into operation.

Adv Charmaine van der Merwe, Senior Legal Advisor at PLS, said nothing prohibited a Bill from containing substantive amendments.

This should not be confused with the requirement for public participation, which is material changes.
The Bill before the Committee did not have any material changes. The Bill contains drafting changes or matters that were overlooked. There was no need for advertising in the Portfolio Committee and not in this Committee. Sufficient participation was done. The amendment was simply a matter of timing with regard to the processing of the Bill which the National Assembly had passed. The constitutional concerns about the 90/10 allocation had been presented to this Committee. The office had already advised the Speaker about the need for a resolution regarding the regulation of upper limits. Consultations in this regard had started.

Mr Badenhorst sought clarification on the difference between material and substantive change from a legal perspective. The Portfolio Committee was advised that changes to Regulation 2 were substantive and not consequential. He referred to case law, which compels public participation when a material or substantive change is made to regulations.

Adv van der Merwe said when the bill was introduced, there was a clear need for haste in terms of processing by the two houses. Parliament was assured that the amendments were consequential in nature. Conferral meetings were held to see what could be done to speed up the process. Concerns were raised that some amendments were not consequential but substantive and required more deliberations. That is where the term substantive came into play. It is a very different factor from whether a bill is amended by a committee in a material way because the consequences are different. The issue of substantive amendments to the bill is simply that it requires more deliberation, and the department, in each instance, could convince the Portfolio Committee that it was necessary because of the inclusion of independent candidates. The relevance of substantive was about discussion.

Regarding material amendments to a bill, the courts require further public participation. The Portfolio Committee amendments were not material in nature, so no further public participation was needed. No additional public participation is needed from this Select Committee as well. The fact that the amendments may be substantive simply means the Committee may need to spend more time in its discussion.

Clause 31
The Content Advisor explained the amendments effected by the Portfolio Committee.

There were no inputs received.

Clause 35
The Content Advisor The Content Advisor explained the amendments effected by the Portfolio Committee.

There were no inputs received.

Clause 38
The Content Advisor explained the amendments effected by the Portfolio Committee.

There were no inputs received.

Clause 39 and 40
The Content Advisor explained the amendments effected by the Portfolio Committee.

There were no inputs received.

The Chairperson summarised the deliberations. The Committee had worked through the public comments, and the changes effected due to amendments made by the Portfolio Committee. Broader issues were raised only in clause 29. Members would be advised of the next meeting, taking Mr Badenhorst’s objection into consideration.

The Chairperson thanked the teams from the DHA and PLS for their attendance and input to the Bill.

Administrative Matters
The Chairperson announced that the Committee had received an invitation from the Department of Justice to attend a conference on the state of human rights in the country. She requested the Secretariat to update the Committee on the arrangements for attending the conference.

A member of the Secretariat said he started sourcing quotations but has not yet submitted the financial application. He needed to first determine the number of members who would be attending the conference. The invitation was received on short notice and might cause problems with logistical arrangements. The departure date is Sunday, 17 March 2024.

Mr G Michalakis (DA, Free State) said he and the other DA members would not attend the conference. He was familiar with the state of human rights in his constituency.

The Chairperson requested the Secretariat to deal with the logistical issues outside the platform. The Chief Whip had advised of a plenary meeting scheduled for Tuesday, 19 March 2024, which she encouraged Members to attend. The feasibility of the Committee Programme would be reviewed to accommodate future meetings because the Bill must be finalised.
The meeting was adjourned.