Legislature seat numbers: IEC & Researcher briefing

Adhoc Committee: WCPP Seats (WCPP)

07 September 2022
Chairperson: Mr A Van Der Westhuizen (DA)
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Meeting Summary

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The Ad Hoc Committee on Seats in the Western Cape Provincial Parliament met virtually for a briefing by the Independent Electoral Commission (IEC) on the processes for determining the number of seats in provincial legislatures. The Committee also received a briefing from its research section on ways of amending the provincial constitution to change the number of seats in the Western Cape legislature in the light of increased population numbers.

The IEC told the Committee that section 105 of the national Constitution provided for the composition of provincial legislatures. A provincial legislature comprised between 30 and 80 members determined in terms of a formula prescribed by national legislation. It said there should be one seat for every 100 000 members of the population.

Section 105 did not apply when a province, through its provincial constitution, determined the number of seats. The matter was settled in 1999 by the Constitutional Court in a matter between the Western Cape government and the IEC. The IEC had determined 39 seats for the provincial legislature in terms of section 105, while the province had determined 42 seats by way of the provincial constitution. The court ruled that the IEC determination was invalid because the province had already regulated the number of seats through section 13 of the provincial constitution.

A report from the researchers concluded that a formulaic approach was the conventional way of determining seat numbers. There was a conceptual link between an increase in members in a legislature and accountability. More seats resulted in a more evenly distributed workload for members to better fulfil their duties.

The Committee presented three proposals for amending section 13 of the provincial constitution. The first was to add a formula for determining seats; add an upper limit for the number of seats; and provide a mechanism for determining the number of seats. The second was to substitute the number of seats in section 13 with an alternative number. The third was to repeal section 13 of the provincial constitution.

The general feeling of the Committee was that an increase in seat numbers from the current 42 was necessary to account for population increases and ensure greater representation for communities. Members felt that while the Committee and the legislature had a mandate from the provincial constitution to determine the number of seats, there still needed to be an overall balance with what was done in the rest of the country.

The Committee resolved that the number of seats in the Western Cape be revised and linked to the population in the province. It should explore options to ensure that the constitution need not be amended each time the number of seats is adjusted. A draft report would be formulated for Members to present to their party caucuses before the Committee met again. 

Meeting report

The Chairperson welcomed all present. He expressed appreciation for the work of the Independent Electoral Commission (IEC). The Committee was grappling with changes in the IEC Act and was looking forward to hearing the IEC’s interpretation of the task at hand.

IEC on Number of Seats for Provincial Legislatures

Mr Masego Sheburi, Deputy Chief Electoral Officer: Electoral Operations, IEC, presented to the Committee. He thanked the Committee for inviting the IEC to share its perspective. Whatever was done in the Western Cape or the rest of the country should be guided by the promise of the equality of the vote, the commonness of the voters’ roll, universal franchise and the right to hold office if elected. In determining the number of seats in a legislature, the IEC did not want to create the idea that citizens in certain parts of the country enjoyed more rights than others.

Section 105 of the Constitution provided for the election and composition of provincial legislatures. A provincial legislature comprised between 30 and 80 members determined in terms of a formula prescribed by national legislation. It awarded a seat for every 100 000 members of the population. A determination was to be made by the IEC before every election. The last determination was in 1999. In the intervening period, there had been significant shifts in population composition. 

Section 105 did not apply when a province, through its provincial constitution, determined the number of seats. The matter was settled in 1999 by the Constitutional Court in a matter between the Western Cape government and the IEC. The Commission had determined 39 seats for the provincial legislature in section 105, while the province had determined 42 seats by the provincial constitution. The court ruled that the IEC determination was invalid because the province had already regulated the number of seats through section 13 of the provincial constitution. Section 105 did not apply and the process was outside the remit of the IEC.

Discussion

The Chairperson asked that Members keep in mind the mandate of the Committee. Its task was to investigate the number of seats allocated to the provincial parliament and whether the current number was sufficient to optimally serve the people of the Western Cape.

The crisis that the National Assembly was currently facing concerned independent candidates and what should happen should an independent candidate pass on. He asked that the Committee concern itself only with the number of seats in the Western Cape for the next elections.

Mr P Marais (FF+) said he wanted to clear up the misconception that having more seats in the Western Cape would not be more beneficial. If only half of seats were proportionally allocated to parties while the other half was determined by a Westminster system of winner takes all, certainly more seats would benefit the minority parties. He did not understand how there would be no benefit if seats were not increased at all. The proposal was that there should be 71 seats if the norm of one seat per 100 000 of the population was applied. However, if fifty percent of the seats were proportional and the other fifty percent went to independent candidates, there could be an uneven number such as 71. According to the Constitution, there was over-representation in the Northern Cape and the Free State legislatures, but they could not be allocated less than 30 seats. So why should the Western Cape not be able to increase the number above 71? The legal team needed to advise on this.

Mr Sheburi said he apologised if what he said came across as a political statement. The  IEC was not opposed to increasing the number of seats. It accepted that it facilitated accountability and responsibility. Increasing the number of seats might not help as there were no direct, demarcated constituencies. He highlighted that the allocated number of seats in a legislature would not change even if the legislation was changed. A different allocation of seats would not be introduced in a way akin to local government where 50 percent of seats represented constituencies and the other 50 percent were proportional. There would still be proportional representation, even with the participation of independent candidates.

Mr R Mackenzie (DA) said the IEC had confirmed that section 105 of the Constitution provided the correct guidance on whatever needed to be determined going forward. The Committee should allow the Constitution to guide it. 

Mr K Sayed (ANC) said he was comfortable that the process was correct. An interesting point was whether increasing seats was the solution to ensuring greater accountability. It might not be the solution to ensure greater accountability in the province, but it surely contributed to that. It was important to bear this in mind going forward, beyond what the Ad Hoc Committee had been formed for. 

Mr F Christians (ACDP) said the presentation was quite clear. He wanted to speak on behalf of parties like the ACDP. Bigger parties like the ANC and DA would find it easier to have constituency heads, but smaller parties found it difficult. The entire Western Cape was his constituency. With the population number increasing to over seven million, greater representation was necessary to assist with greater accountability in communities.

Mr P Marran (ANC) said it had been confirmed in the last meeting held that determinations by the IEC did not apply to the Western Cape as per section 143 of the Constitution. If a province had its own constitution, the province could determine its own numbers. Representation was based on the size of the population. It was a pity the Committee did not have the formula used to calculate this previously. Whichever number the Committee arrived at above 42 would require an amendment of the constitution. He highlighted that the Western Cape had its own constitution and therefore could determine its own numbers.

The Chairperson said his understanding was that the earliest date elections could be expected February 2024. He asked when the IEC would need to know what number the Western Cape had decided upon. Should Western Cape’s constitution be changed? He asked about schedule 3 of the Electoral Act. While it did not apply to the Western Cape in numbers, the 100 000 figure had not been changed after the amendments to the Electoral Act.

Mr Sheburi said the amendments only gave the IEC authority to deal with the number of seats beyond the 1999 election, but this had not changed the formula of one seat for every one hundred thousand. A determination would not necessarily go to its logical conclusion because of section 105. The formula could be applied, but limits on the number of seats could not be breached. For example, it was estimated that there were 14 million people in Gauteng, but Gauteng would not get close to the number of seats yielded by the formula, because the maximum number of seats in a legislature was 80. He said the IEC needed to know the number decided on by the Western Cape by the end of the Calendar year 2023. The earliest possible date for elections was the third week of May 2024.

Mr Michael Hendrickse,  Provincial Electoral Officer, IEC,  said that while the Committee and the provincial Legislature had a mandate in terms of the provincial constitution, there still needed to be an overall balance taking into account what was happening across the country. The Committee should also consider other intrinsic factors.

The Chairperson said the Committee was honoured to hear the perspective of the IEC, as it believed they could learn from one another.

Mr Marais asked for clarity on whether the Court had instructed the IEC to change the Electoral Act so that provision was made for independent candidates on a fifty-fifty basis. 

The Chairperson corrected Mr Marais. The IEC was not asked to change the Electoral Act, but the National Assembly was.

As it currently stood, Mr Sheburi said the Bill had independent candidates contesting on the provincial election ballot paper. It did not split the seats or reserve seats for independent parties. The number of validated votes cast would be divided by the total number of seats in the legislature. Fractions would be disregarded and the answer would become the quota. The quota would divide all the votes for parties and independent candidates. Whoever met the quota would be allocated a seat. If a party or independent candidate did not meet the quota for a seat, it would be allocated based on the highest remainders. Both parties and independent candidates stood to benefit from this.

The Chairperson thanked Mr Hendrickse and Mr Sheburi for their contributions and excused them from the meeting.

Research presentation

The Committee received a briefing on ways of calculating the number of seats in legislatures from its research team. The research included case studies of other countries.

It concluded that applying a formulaic approach was the conventional approach to determining seats, as it allowed for consistency. The formulaic approach worked best when population growth was reviewed and when seats were adjusted accordingly to reflect population fluctuations.

There was a conceptual link between an increase in Members and accountability. Legislatures served as an ‘accountability agency’, representing and advancing the interests and wellbeing of the people. Accountability was the ability to serve effectively. More Members resulted in a more evenly distributed workload for members to better fulfil their duties.

Discussion

Mr Marais asked if he had heard correctly that in Nigeria, grounds for deviating from equal population distribution were that people with a history of rivalry or conflict should not be ethnically grouped together. He asked how this would affect the delimitation of boundaries in the current situation in South Africa.

The Chairperson said Members should not go into issues such as delimitation. The Committee's task was only to express itself on the appropriate number of seats.

Mr Mackenzie referred to slide 2 of the presentation, dealing with determinants of the number of seats. The presentation pointed out that of the 41 members of the legislature, 11 served in the provincial cabinet, leaving only 31 to represent the people of the Western Cape. He said the number would be reduced if the Speaker and Deputy Speaker were removed. Traditionally, the chief whip was a member of the cabinet. The chief whip and the opposition’s chief whip were also alternate members of committees due to the size of Parliament.

He also referred to determinants such as population density and voter registration. The researchers pointed out that Members were assigned to constituencies based on regions rather than population density. When people approached Members of Parliament, they did not ask whether they were registered as voters. There was severe under-representation in the Western Cape, where 1999 numbers were used in 2022. The recommendations should take into account the baseline and other factors.

Mr Riedwaan Baboo, Manager: Knowledge Management and Information Services, WCPP, said it was important to bear in mind that there were significant fiscal factors. The redrawing of municipal boundaries involved a range of stakeholders and might not be a pragmatic solution where population density was concerned. A legislature should make appropriate and adequate resources available for a constituency with a high density area. The report emphasised Member accountability as well as effectiveness and efficiency. A Member’s ability to respond timeously to the interest and wellbeing of a citizen within a particular constituency might be affected.

Mr Christians said he agreed with the previous speaker. There should be regular intervals where an increase in seats was considered. Internationally this happens every five to ten years. Looking at the committees, members sat on only two or three committees and did not have input on the others. The case studies were excellent, because now, the Committee could start to think about how it could better serve the people of the Western Cape. One of those ways was to increase the seats in the legislature. He agreed with the Chairperson that the Committee’s job was simply to find out whether it was feasible to increase the number of seats. He emphasised that the Committee was on the right path and that the current number was definitely insufficient. 

Ms P Lekker (ANC) said her issue was around the determination of a constituency if the Committee was to rely on directly elected members. How would the Committee make a determination on what would constitute a constituency? She was trying to make sense of the population factors, for example, the numbers in Philippi or Nyanga as opposed to those in Matzikama.

Mr Baboo said he was not sure he was in a position to comment on the constituency issue as this was not in the scope of the research.

Mr Marran said he agreed that the baseline used should be the population as the Members did not only serve registered voters, but the people of the Western Cape. The number of seats in the Western Cape was not sufficient to serve the people. Whatever formula was used must speak to the population. Uniformity and what happened in other parts of the country had to be considered. They could consider 60 plus 11 seats, which amounted to 71. Eleven would then form the executive and 60 would be responsible for constituencies. The Committee should look at what the IEC was doing regarding its formula. If the Committee was satisfied, the Constitution should be amended. 

Mr Marais said if he received a report, it should not include things Members should not ask about. He took exception to being reminded to stick to the point. The last time the Committee met, reference was made to Europe and he had suggested that it look at Africa for guidance on seat allocations. He was glad that African states were considered in the research. He said the ACDP had asked the same questions, but this was allowed. He said it was necessary to look at African models and not only colonial powers. He wanted to voice his protest about certain questions being curbed.

Mr Baboo asked one of the team’s researchers, Ms Natascha Visser, to address Mr Marais’s question about ethnic rivalry. He said it was important to conduct a periodic review of population size and equally important to include some form of determination about what should trigger a process of recalculating seat numbers.  

Ms Visser said Nigeria had a history of intense conflict between small ethnic groups. There were many ethnic groups and language communities in Nigeria. If people were divided between the different rival groups, one group might lose a voice, leading to popular unrest. This did not apply to South Africa as it did not have direct representation, but rather proportional representation.

Options for amending the provincial constitution

Adv Andre le Roux presented three proposals for amending section 13 of the provincial constitution.

The first was to add a formula for determining seats; add an upper limit for the number of seats; and provide a mechanism for determining the number of seats.

The second was to substitute the number of seats in section 13 of the Provincial Constitution with an alternative number. This approach was uncontroversial, and had already been judicially assessed and upheld by the Constitutional Court.

The third was to repeal section 13 of the Provincial Constitution. This approach was uncontroversial, and had already been judicially assessed and upheld by the Constitutional Court. 

Discussion

The Chairperson again emphasised that Members should remain focused on the mandate of the Committee when asking questions. Looking at the constitution would be the task of the Standing Committee and not the Ad Hoc Committee.

Mr Sayed said he saw sense in looking at proposals two and three. He asked how the Committee could ensure that it looked at either proposal in the context of the IEC determination.

Mr Marais said he would not like to concede power to an outside body such as the IEC. What would the government actually be saying if it did this? There were already complaints that the national government had too much power. Which of the options would provide the greatest stability and comfort? If it was left to the constitution, as suggested in the first proposal, it would mean that opposition parties also had a voice, given that a two thirds majority would be required to amend it. This also meant the majority party could decide on whatever it wanted. The Committee was between a devil and a blue sea. This needed to be analysed far more intensely and the Committee needed to ponder the implications. It could not be rushed into a decision.

Mr Christians said the second proposal seemed to be the better option, but the Committee represented all parties. Members should consult their caucuses and then return to the Committee to debate, make a firm proposal and consider the time frames. The Committee must look at what would be in the best interests of the people and what would constitutionally be the best way forward.

Resolutions

The Chairperson proposed that the number of seats in the Western Cape be revised and linked to the population in the province, with motivations to support this.

The Committee should look at an option where the provincial constitution did not need to be changed each time the number of seats was adjusted due to population growth. He proposed that the Committee favour the formulaic approach. The Committee must determine whether it would proceed with one seat per 100 000 of population, or whether there would be room to decide that this should not apply if the legislature becomes too big.

Ms Lekker proposed that the number of seats be regularly reviewed. Population growth should thus be monitored.

Mr Marais said he still believed the constitution should be referred to for guidance and that there should be time limits on how often seats were reviewed. He would like to maintain stability and the current constitution, with its present formulation, has served the province well. The legislature won the case against the IEC in 1999. It could not win a case on rules, but would win it if it was based on the constitution.

Mr Sayed said he supported Mr Marais in moving from rules to the constitution and finding a way to consistently assess the amount of seats. He asked for advice on how to phrase this.

The Chairperson said a draft report needed to be drawn up at this point and referred to the party caucuses to present a mandate. It seemed there was overwhelming support in the Western Cape to amend the provincial constitution to compensate for the growth in population numbers. The Committee should look for a solution to allow the number of seats to change in a way that does not require the constitution to be amended each time this was done.

Mr Marais said the Committee could not foresee the future and should be prepared for resistance. He emphasised that a provision should be made in the constitution that the number of seats was subject to increases or decreases in the population, since people might leave the province. When it was changed, it would require the buy-in of all parties.

Mr Mackenzie said the research and the IEC backed the Committee’s approach on the baseline, and the wording should simply be amended in the constitution. This should be formulated legally to take out the number of 42 and apply a formulaic approach with conditions about timeframes. This would ensure that future generations were not stuck with a particular number. Conditions should be stipulated in the rules and not the constitution so that in 20 or 30 years, the formula could simply be adjusted.

The Chairperson proposed that a report be drafted for the next meeting. He said Mr Marais had proposed a fixed number such as 72 or a formulaic approach.

Mr Mackenzie said he did not understand why there needed to be a fixed number. He had not heard a plausible explanation for this.

The Chairperson said the courts needed to be approached on this matter.

Mr Sayed said having a fixed number would be problematic. This matter should be presented to the parties.

The Chairperson referred Members to the Electoral Act that was adopted in 2021. The IEC needed to recalculate seat numbers for elections. The formulaic approach seemed to have been adopted here by the National Assembly.

Mr Christians said the Committee needed to investigate the number of seats to establish whether this was sufficient. Adv Le Roux said Option 1 could be challenged and was somewhat ambiguous. He suggested the Committee go for a safer option that would not be challenged in court. He questioned why the Committee could not opt for determining the number of seats.

The Chairperson said Adv Le Roux’s presentation had raised serious questions. There needed to be a lot more thought and a further legal opinion. There was general consensus that sufficient information had been gathered from role players to have a concrete proposal for a report. He hoped the Committee would support this.

Mr Marais said Members should exercise caution about playing politics. This was a matter of constitutionality versus law. The authority could not be given to the ruling party to say that rules should determine the number.

The Chairperson said if the provisions were contained in the constitution and based on a variable such as population, he differed from Mr Marais’s view that this would mean handing power to the governing party.

The Chairperson said a draft report would be drawn up. He hoped this would be engaged with as much vigour as had been seen up until the present.

The meeting was adjourned.  

 

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