Electoral Laws Amendment Bill: adoption & committee report

Meeting report

The Chairperson opened the virtual meeting and welcomed Members and the delegation from the Independent Electoral Commission (the IEC). The delegation from the IEC consisted of Mr Masego Shaburi, Chairperson of the IEC, Mr Mosotho Moepya, IEC Commissioner and Mr Sy Mamabolo, Chief Electoral Officer of the IEC. Ms Sueanne Isaac was also in attendance on behalf of the legal services of Parliament.

The purpose of the meeting was for the Committee to conduct its clause-by-clause deliberations on the Electoral Laws Amendment Bill [B22-2020], and the Committee report on the Bill.

The Chairperson stated that the main role of the Committee is to hold the Executive accountable on behalf of the public of South Africa. This is intertwined with the duties of the Members. The Committee has been discussing the amendments to the Electoral Laws Amendment Bill for four to five weeks and have been in deliberation since. The Committee planned to finish off for the year a week ago and deal with the adoption of the Electoral Laws Amendment Bill in February 2021. However, the National Assembly must be afforded the opportunity to debate this matter orderly and properly in a way that does not negatively affect the schedule of the IEC and the upcoming local government elections. This necessitated that the Committee must deal with the adoption of the Bill before closing for the year. Members had ample time to engage with the contributions of the public regarding the Bill without fear, favour, or prejudice. From previous deliberations, Members collectively decided to suspend section 14 and 21 of the Electoral Laws Amendment Bill. The issues of these two clauses will be dealt with on a later stage after the Committee receives a thorough briefing from the IEC that addresses its concerns.

In the previous meeting, Mr A Roos (DA) raised the issue of section 8 of the Electoral Laws Amendment Bill. The Chairperson said he has taken it upon himself to engage with the Information Regulator relating to the issues of section 8. It is a matter that involves another Chapter Nine institution as envisaged in the Constitution. The Information Regulator indicated that it is comfortable with the inclusion of section 8 as it does comply with the regulations in place. It was in the wisdom of the Committee to accept section 8 as part of the Electoral Laws Amendment Bill.

He referred to an e-mail he received from AmaBhungane that section 8 must be removed before 09h00 of 1 December 2020. The Chairperson took exception to this request because of the late stage at which the letter was written. Parliamentary processes require that such letters be tendered earlier. AmaBhungane has been part of the consultations on the Electoral Laws Amendment Bill and have made written submissions. Its objections or comments to section 8 of the Electoral Laws Amendment Bill should have been tendered at that stage so that the Committee could consider it before deciding whether to adopt the Electoral Laws Amendment Bill. This was an overreach from AmaBhungane as the Chairperson do not have the powers to remove a section or clause from the Electoral Laws Amendment Bill. It is the collective duty of the Members of the Committee to debate the contents of the Electoral Laws Amendment Bill and to propose removal of sections that raise serious concerns. The decision of the Committee to remove sections 14 and 21 was based on serious and extensive deliberations.

The Committee did not hold public hearings as the Electoral Laws Amendment Bill is regarded as more technical than substantive. The main issue that was raised concerned clauses 14 and 21 of the Electoral Laws Amendment Bill where it stated that the IEC may prescribe a different voting method. The matter raised was that a different voting method is a policy matter that cannot be left to the IEC alone to decide inasmuch as the intention was to only allow for testing of such alternatives. Much of the concern raised by stakeholders and Members were around the potential risks and costs of electronic voting. The Committee must now conduct a clause-by-clause deliberation before deciding whether to adopt the Electoral Laws Amendment Bill. The Bill has been extensively discussed by the Committee, and there will be no further in-depth discussion on this matter. Any serious objections with any section of the Bill must be brought up when the National Assembly debates it.

The Chairperson said the Committee must take this opportunity to send condolences to the Deputy Minister of Home Affairs, Mr Njabulo Nzuza, who has lost his father this week. He expressed appreciation for the apology tendered that the Deputy Minister was unable to attend the meeting. The Committee expressed condolences to the Deputy Minister and his family.

Ms L van der Merwe (IFP) conveyed her sympathies to the Deputy Minister and the Nzuza family. Regarding the issue of AmaBhungane, she has also received the letter regarding the removal of section 8 of the Electoral Laws Amendment Bill. The letter from AmaBhungane is a legal one that cannot simply be brushed over because it contains complaints stating the public participation processes the Committee followed was inadequate. This is concerning because it can have serious consequences regarding the validity of the Electoral Laws Amendment Bill if it is adopted. AmaBhungane claims that it did not have an adequate opportunity to address the Committee and that it has written to the Committee to have the opportunity to make oral submissions. AmaBhungane further states that section 8 of the Electoral Laws Amendment Bill is substantive in nature and the amendments affect the voters’ roll, and consequently affects the credibility of the elections. It is a very serious matter that must be considered by the Committee as there are court rulings against Parliament where fair and adequate opportunity must be given to organisations to engage with Committees on the amendments to legislation.

The Chairperson responded that the Committee will not be addressing the issue of AmaBhungane now, and that Members can raise their concerns when it comes to each clause of the Electoral Laws Amendment Bill and the relevant considerations of the amendments to those clauses.

Mr J McGluwa (DA) fears the Committee might face a court interdict relating to the participation of all possible organisations which has an interest in the adoption of the Electoral Laws Amendment Bill. This is an issue that must be addressed by the Committee.

Mr M Chabane (ANC) said the Committee must be cautious of delaying or interrupting the process that it has been engaging in regarding the deliberations of the Electoral Laws Amendment Bill. He agreed with The Chairperson’s proposal that Members raise their concerns when the clause-by-clause deliberations progress to the clauses that are of concern.

The Chairperson responded that the Committee must deal with the issues decisively and in an orderly, dignified way. He stated that it is important that the Committee finalise its deliberation and stance on the Electoral Laws Amendment Bill because the National Assembly must be afforded the opportunity to debate this matter orderly and properly in a way that does not negatively affect the schedule of the IEC and the upcoming local government elections. The Committee is mandated to conduct a process of clause-by-clause deliberations before voting whether the amendments are adopted.

Clause-by-clause deliberations:

Ms Sueanne Isaac, parliamentary legal advisor, presented the list of amendments that the Committee agreed to in previous meetings.

Amendments to the A-version:

The first amendment regarding the A-version of the Electoral Laws Amendment Bill was to reflect the correct wording of the long title.

The second amendment related to section 14, which has been rejected by the Committee. The section has been deleted and the numbering will be changed.  

The last amendment on the A-list relates to section 21 where the Committee has rejected the inclusion of section 21(8) and which has now been deleted.

Amendments on the B-version – General:

The first clause relates to the long title of the Electoral Laws Amendment Bill.

Mr McGluwa stated that the Committee does not have a problem with the revisions and changes that has been made to the final version of the Electoral Laws Amendment Bill, except as it relates to the deletion of sections 14 and 21. The problem that must be discussed in this meeting is whether the Committee has adequately allowed for public participation throughout its deliberations. Members should be satisfied with the Electoral Laws Amendment Bill as it stands in the B-version, because it has been dealt with extensively in the meetings of the Committee. Going clause-by-clause is unnecessary. The concern is whether adequate public participation processes were followed in the Committee’s deliberations and finalisation of the Electoral Laws Amendment Bill.

The Chairperson  said he does not take Mr McGluwa’s comments very seriously. He has outlined the process of finalising the deliberations regarding the Bill, which includes conducting a clause-by-clause deliberation procedure. The Committee must follow the same procedures as it has previously done when dealing with routine legislative amendments.

Mr McGluwa withdrew his comments.

Amendments on the B-version – Clauses 1, 2, 3, and 4:

Ms Isaac stated that the first amendment (in clause 1) is to section 1 of the Electoral Commission, Act 51 of 1996, which will insert the definitions of ‘district municipality’, ‘local municipality’, and ‘metropolitan municipality’.

The next amendment (in clause 2) is to section 12 of the Electoral Commission Act, which will update the reference to the Public Finance Management Act 1 of 1999 relating to the accounting officer of the IEC.

The next amendment (in clause 3) is to section 15 of the Electoral Commission Act, which inserts the provisions as outlined by the B-version of the Electoral Laws Amendment Bill.

The next amendment (in clause 4) is to section 15A of the Electoral Commission Act, which repeals the section.

The Chairperson called for the adoption of clauses 1 to 4.

The Committee adopted clauses 1 to 4.

Amendments on the B-version – Clause no. 5:

Ms Isaac stated that the next amendment (in clause 5) is to section 16 of the Electoral Commission Act, which deals with the prohibition on the registration of parties under the circumstances outlined.

The Chairperson called for the adoption of clause 5.

The Committee adopted clause 5.

Amendments on the B-version – Clause no. 6:

Ms Isaac stated that the next amendment (in clause 6) is to section 23 of the Electoral Commission Act, which is related to the regulations, and section 23(3) is deleted.

The Chairperson called for the adoption of clause 6.

The Committee adopted clause 6.

Amendments on the B-version – Clause no. 7:

Ms Isaac stated that the next amendment (in clause 7) is to section 16 of the Electoral Act 73 of 1998, to amend the definition of ‘voting day’.

The Chairperson called for the adoption of clause 7.

The Committee adopted clause 7.

Amendments on the B-version – Clause no. 8:

Ms Isaac stated that the next amendment (in clause 8) is to section 16 of the Electoral Act 73 of 1998, with the amendments as listed in the B-version of the Electoral Laws Amendment Bill.

Ms van der Merwe stated that the in-person requirement to inspect the voters’ roll hampers the work of anyone who wants to audit the election process, as not everyone can travel to an IEC office to see the voters’ roll. Section 8 would have operated better if it included a provision allowing for the voters’ roll to be inspected through an electronic copy. The deletion of section 16(2) of the Electoral Act, as provided for by clause 8 of the Electoral Laws Amendment Bill, would have granted some relief for this issue. Section 16(2) included that the Chief Electoral Officer of the IEC must provide a certified copy or extract from a segment of the voters’ roll as it exists at the time to any person who paid the prescribed fee. The deletion of this section is removing meaningful access to the voters’ roll for people who would like to play their role in detecting fraud or unacceptable conduct relating to our elections. She agreed with Mr McGluwa regarding the problem of having organisations which wanted to make oral submissions who were not able to do so.

Mr Chabane stated that this matter has been dealt with and the IEC has been engaged with extensively on this issue. Two further processes must be completed before the Electoral Laws Amendment Bill is adopted, which includes the process in the National Assembly and the National Council of Provinces. When the Committee dealt with the Electoral Laws Amendment Bill, there was a process of public comments and public hearings and the Committee resolved to follow the procedure for public comments as part of the consultation process. He took comfort in the view that the Information Regulator has approved the amendments to the Electoral Laws Amendment Bill, and he then proposed the adoption of clause 8.

Mr Roos said the Committee needs to make it very clear to the Department of Home Affairs and its entities (including the IEC) that it cannot be put in this tenuous position again. The situation has put the Committee in a very difficult position where there is suddenly an emergency to adopt the Electoral Laws Amendment Bill because of the limitations of the IEC’s timeframes. While it does sound as if the National Council of Provinces will save the day in this regard, there was a simple solution to include an additional provision that refers to persons in terms of section 7 of the Protection of Personal Information Act 4 of 2013. This will cover journalists and the use for artistic purposes, but the Committee is rushed in this regard and cannot make proper considerations on the amendments to the Electoral Laws Amendment Bill. Inclusion of this regard would have been a neat solution to the problems raised by AmaBhungane.

Mr M Tshwaku (EFF) stated that the EFF is not aware of the concerns raised by AmaBhungane as the letter was not received by all Members. He asked for clarification on the legal opinion on the inclusion or exclusion of section 8 from the Electoral Laws Amendment Bill. He enquired as to the meaning of the clause that states that the Chief Electoral Officer of the IEC must reject any information appearing on the voters’ role that should have been redacted or censured.

The Chairperson said these matters have been discussed extensively in the meetings of the Committee. Mr Roos was the champion of removing sections 14 and 21 of the Electoral Laws Amendment Bill, and if he had a concern relating to section 8 that should have been raised earlier. The manner in which these concerns are raised is not fair as the Committee is at the last stage of finalising its deliberations. It is not in keeping up with the principles of public participation and our democracy. Concerns relating to clause 8 of the Electoral Laws Amendment Bill must have been raised at an earlier stage of the deliberations. Members have consistently raised concerns about sections 14 and 21 and the Committee collectively decided to remove these sections from the Electoral Laws Amendment Bill. It is unfair and confusing to raise concerns about other sections at this late stage and it will not be tolerated.

Ms van der Merwe said that Members are merely raising a concern of whether the Committee has done justice to the required processes of public participation. Would it not have been better to invite AmaBhungane to a meeting of the Committee to conduct oral representations? Members are not discussing whether they want to insert word-for-word the proposals from AmaBhungane, but are rather raising a fundamental issue that the Committee must do justice to inviting people to speak about concerns relating to the Bill before the finalisation of this matter. She was concerned that people are saying that they have not been heard in this regard, especially in light of legislation becoming a problem when the courts have held that the public participation processes were not adequate.

The Chairperson responded that any serious concerns regarding section 8 of the Electoral Laws Amendment Bill must have been raised at an earlier stage of the deliberations.

Mr Mosotho Moepya, IEC Commissioner, said that in dealing with the difficulties of section 8 of the Electoral Laws Amendment Bill, the IEC has previously indicated that it consulted with political parties and the Information Regulator regarding this issue. The intention was not to withhold any record on the voters’ roll that is used for legitimate purposes. It is a misunderstanding to say the only way that the voters’ roll can be accessed is in-person at an IEC office. It can be accessed on the IEC’s website and by contacting the IEC call centre. Section 8 of the Electoral Laws Amendment Bill was intended to stop the abuse of accessing the personal information of voters, particularly the identification numbers of voters, in ways that do not further or enhance electoral processes and practices. The information remains available for the media.

The Chairperson called for the adoption of clause 8.

The Committee adopted clause 8.

Amendments on the B-version – Clause no. 9:

Ms Isaac stated that the next amendment (in clause 9) is to amend section 24A of the Electoral Act 73 of 1998, which deals with voting in voting districts that are not registered.  

Mr Tshwaku asked if it was too late to propose that parties must be notified on time of the people who are going to voting on a day that are not residing within the area of the particular voting station. The problem that political parties are facing is that it does not have time to process or be notified of special votes. He asked whether an amendment to the IEC’s timetable can be effected in this regard.

Mr Moepya commented that what forms part of the IEC’s timetable is determined by legislation. Lists of special votes are circulated and provided to political parties well in advance of the election taking place, and the IEC undertakes to continue this practice. As the Committee will recall, the IEC facilitates this process to ensure that no votes are casted unlawfully and that every vote counts equally.

Ms Isaacs responded to Mr Tshwaku that it is a policy decision, and it depends on whether the Committee wants to include an amendment that the political parties be given a list of the special votes in a certain time.

Mr Tshwaku said political parties have had to ask and beg for the list of special voters, and it has been a difficult process. He appealed to the other Members to decide in favour of including a certain date by which the list of special votes must be made available to political parties. It must not be at the discretion of the IEC officials in various provinces of our country.

The Chairperson said the timeframe for making the list of special votes available to political parties could be included in the regulations in this regard. The Committee will follow-up and conduct oversight over the management and implementation of the regulations regarding the list of special votes.

The Chairperson called for the adoption of clause 9.

The Committee adopted clause 9.

Amendments on the B-version – Clause no. 10:

Ms Isaac stated that the next amendment (in clause 10) is to section 27 of the Electoral Act 73 of 1998, which deals with the submission of the list of candidates.  

The Chairperson called for the adoption of clause 10.

The Committee adopted clause 10.

Amendments on the B-version – Clause no. 11:

Ms Isaac stated that the next amendment (in clause 11) is to section 28 of the Electoral Act 73 of 1998, which deals with non-compliance relating to the submission of the list of candidates.   

The Chairperson called for the adoption of clause 11.

The Committee adopted clause 11.

The Chairperson said Members must be reminded that this is a Committee of a multi-party Parliament and Members must work in the collective interest of what the Constitution requires.

Amendments on the B-version – Clause no. 12:

Ms Isaac stated that the next amendment (in clause 12) is to section 30 of the Electoral Act 73 of 1998, which deals with objections relating to the list of candidates.

The Chairperson called for the adoption of clause 12.

The Committee adopted clause 12.

Amendments on the B-version – Clause no. 13:

Ms Isaac stated that the next amendment (in clause 13) is to section 33 of the Electoral Act 73 of 1998, which deals with special votes in the elections.

Mr Roos stated that on 24 November 2020, the Committee raised a concern of the 15-day time period being taken out of section 33 of the Electoral Act. The response from the IEC was that it committed that the time period would not be less than 15 days, but this commitment does not appear anywhere in clause 13.

Mr Moepya stated that the IEC has indicated that the scheme was to improve access by persons who would now not need to make an application to obtain this information. He ensured the Committee that the timeframe enforced in terms of clause 13 would not be less than the 15 days agreed upon.

The Chairperson called for the adoption of clause 13.

The Committee adopted clause 13.

Amendments on the B-version – Clause no. 14:

Ms Isaac stated that the next amendment (in clause 14) is to section 50 of the Electoral Act 73 of 1998, which provides for the procedures concerning the provisional results and voting materials.  

The Chairperson called for the adoption of clause 14.

The Committee adopted clause 14.

Amendments on the B-version – Clause no. 15:

Ms Isaac stated that the next amendment (in clause 15) is to amend section 99 of the Electoral Act 73 of 1998, which provides for an electoral code of conduct and other relevant codes of conduct.  

The Chairperson called for the adoption of clause 15.

The Committee adopted clause 15.

Amendments on the B-version – Clause no. 16:

Ms Isaac stated that the next amendment (in clause 16) is to amend Schedule 3 of the Electoral Act 73 of 1998, which provides for the composition of the National Assembly and provincial legislatures.

The Chairperson called for the adoption of clause 16.

The Committee adopted clause 16.

Amendments on the B-version – Clause no. 17:

Ms Isaac stated that the next amendment (in clause 17) is to amend section 1 of the Local Government: Municipal Electoral Act 27 of 2002, by inserting the definition of ‘district council’ and deleting the definition of ‘district management area’.

The Chairperson called for the adoption of clause 17.

The Committee adopted clause 17.

Amendments on the B-version – Clause no. 18:

Ms Isaac stated that the next amendment (in clause 18) is to amend section 14 of the Local Government: Municipal Electoral Act, that provides for the requirements for parties who contest the election of parties in certain specific circumstances.

The Chairperson called for the adoption of clause 18.

The Committee adopted clause 18.

Amendments on the B-version – Clause no. 19:

Ms Isaac stated that the next amendment (in clause 19) is to amend section 17 of the Local Government: Municipal Electoral Act, which deals with the requirements for candidates contesting elections.  

The Chairperson called for the adoption of clause 19.

The Committee adopted clause 19.

Amendments on the B-version – Clause no. 20:

Ms Isaac stated that the next amendment (in clause 20) is to amend section 47 of the Local Government: Municipal Electoral Act, which deals with voting procedures. 

The Chairperson called for the adoption of clause 20.

The Committee adopted clause 20.

Amendments on the B-version – Clause no. 21:

Ms Isaac stated that the next amendment (in clause 21) is to amend section 84 of the Local Government: Municipal Electoral Act, which deals with the effects of certain irregularities during elections. 

The Chairperson called for the adoption of clause 21.

The Committee adopted clause 21.

Amendments on the B-version – Clause no. 22:

Ms Isaac stated that the next amendment (in clause 22) is to amend section 87 of the Local Government: Municipal Electoral Act, which deals with the electoral code of conduct 

The Chairperson called for the adoption of clause 22.

The Committee adopted clause 22.

Amendments on the B-version – Clause no. 23:

Ms Isaac stated that the next amendment (in clause 23) is the short title and the commencement of the Electoral Laws Amendment Bill.  

The Chairperson called for the adoption of clause 23.

The Committee adopted clause 23.

Report of the Portfolio Committee on Home Affairs on the Electoral Laws Amendment Bill [B22 – 2020]

The report was adopted.

The Bill will be debated on Thursday, 3 December 2020, by the National Assembly.

 

The meeting was adjourned.