Electoral Amendment Bill: deliberations; Committee Annual Plan

Meeting report

The Chairperson recalled that in the previous week, the Committee had highlighted some of the issues to which the Committee needed to pay more attention. It had begun to discuss some of the key issues that needed consideration. The Committee then referred some technical issues to the Electoral Commission (IEC) so that it could respond to these. The Committee did not get the IEC report in time for the meeting, particularly on the Droop formula. The Committee would await that report from the IEC. The Committee would proceed with discussions, since that could not stop it from deliberating on the key issues it had to deal with.

Based on the public submissions, the Committee Content Advisor would summarise the main issues raised on the Bill. The Committee then had to discuss these and deal with them. The previous week, the Committee agreed that it needed to focus on particular areas so that it fruitfully resolved the issues raised. The different views that had been expressed were fruitful because this gave insight on what the Committee needed to deal with.

The Chairperson noted that in the plenary meeting today the Committee would be presenting its IEC report to the National Assembly.

The Committee Secretary noted an apology from the Minister of Home Affairs

Electoral Amendment Bill [B1-2022]: public comments
Mr Adam Salmon, Committee Content Advisor, presented the main points raised in the public hearings and which needed to be considered in the deliberations and the committee discussion points thus far.

"Revised Issues: Electoral Amendment Bill Deliberations" (Changes are noted in italics.)

Clause 1

1. Is the definition of “region” sufficiently clear as compared to province?
A member suggested that the word provinces should be used instead of the region. Two members felt it was clear enough.

2. Is there a need to redefine “Party Liaison Committees” as “Liaison Committees” or “Electoral Liaison Committees” along with the inclusion of such in amendments to Sections 20, 62 and 64 of the Electoral Act as well as related Clauses in the Electoral Commission Act to allow for the inclusion of Independent Candidates in these consultative bodies?
The Party Liaison Committee should be redefined to include independent candidates and the inclusion of Party agents to allow independent candidates to have agents during elections. The Committee also agreed that the word Liaison Committee should be used to include independent candidates. Can the IEC define inclusion of independent candidates in the regulations?

Clause 2

Requires those on the parties' regional list to be registered to vote but not ordinarily resident in that region. Should this change to include signatures since it is required of the IEC?

Clause 4

3. Should amendments to 31A(a) and 31B(3)(f)be removed to bring independents in line with political party candidates in terms of not being required to be ordinarily resident in the region in which they are registered to stand in an election?

There was one argument that the same requirement does not apply to political party candidates and this requirement was unfair. The suggestion by the IEC that independent candidates should be allowed to contest elections in all provinces but their votes should not be aggregated as this would be unfair. Another argument was that IC should either run for a province or national but not both or several provinces.

4. Should there be signature requirements in 31B(3)(a) for Independents as compared to none for party candidates? Should political parties require signatures?

There was one argument that political party candidates are not required to provide proof of support by providing signatures of supporters. This would be unfair to require it from independent candidates and this might discourage them from contesting the elections. The one opposing view is that signatures should be required to show support or maybe the requirement should be extended to political parties. There was also a concern during the public hearings about the long ballot paper. There was a need for independent candidates to show support.

5. Should the deposit for independents in 31B(3)(b) be the same as parties given that they only qualify for one seat?

One member suggested that independent candidates should not pay the same deposits as that of political parties and two opposing members’ view was that independent candidates should pay the same deposits as the political parties because the deposits would be refunded once an independent candidate wins a seat. It was also pointed out that there were political parties that had one seat in the National Assembly and provincial legislatures and they paid the same deposits as other parties. Deposits assist to carry the costs of an independent candidate to stand for elections. Independent candidates should be able to raise funds like political parties. If independent candidates do not pay deposits, will they qualify for the equitable share if they become members of Parliament?

6. Should the requirement for the determination of the number of signatures required or the deposit needed for independents be left to the IEC to formulate in regulations or should the formula for the determination of signature requirements or deposits be included in the bill?

The Committee should deliberate on the number of signatures to be included in the Bill.

7. Should the requirement in 31B(3)(f) of not having been a member of a political party for 3 months prior to running as an independent remain, be increased or reduced?

Two members were in favour of the current cooling-off period for independent candidates in the local government should be used for the national elections. The Committee agreed on the cooling-off period. The question was whether the IEC would be able to verify the signatures submitted within three months of each independent candidate.

Clause 11

9. Should the clause 11(1) ratio of regional and compensatory seats to Parties remain 50/50% (200 to 200 seats) or change to 75% to 25% or to allow all candidates to contest all 400 seats?

10. In 11 (4 to 9) should there be reference to constituencies (66 or 200) as in the Van Zyl Slabbert report or the Lekota Bill?

Three members felt this should rather be done in a later amendment given the time left.

11. In clause 11(5 to 8) on regional seats should the 3 rounds remain the same or a single round according to the Droop formula as proposed by the IEC to improve proportionality and inclusion of small parties? Alternatively, a two-stage process was proposed where all who meet the full quota for one seat, be awarded a seat – whether as parties or independents.  Once no one is left who is entitled to a seat based on meeting the full quota threshold, the remaining seats should then be given to the candidates that have the highest average of votes per seat won.

The Bill was in the right direction and on seat allocation, the IEC should come back to the Committee to explain the droop quota system.

12. Should clause 11.16 be removed in favour ensuring compliance prior to elections rather than forfeiting seats if parties don’t have enough candidates on their list after an election?

13. In clause 11 (11 to 16 and 25) should the IEC draft a proposal for inclusion in the bill of the 3 ballot system for National Assembly Compensatory; National Assembly Regional and Provincial Legislature either with a requirement for being ordinarily resident in the region for all candidates or a removal of this requirement for all candidates?

14. In Clause 11(34) how would it be responded in court to the objection that the major disadvantage of independents having their surplus votes discarded, effectively means they have no choice but to run as parties which then means the bill does not truly fairly address the Constitutional Court ruling for the inclusion of independents in the National Assembly and NCOP?

15. In Clause 11(34) should there be by-elections for replacing independents? What would this cost according to which calculation of the projected number of by-elections? Alternatively, should votes be transferable as per the Lekota Bill where Independents have a list of “running mates” OR should (all or just independent) candidates with next highest number of votes in the initial election fill the seat? (If going with DHA proposal of replacing vacant independent candidates’ seats with the candidate that received the next highest number of votes; will it not be argued that this gives political parties the benefit of replacing their seats with chosen candidates next on their list; whereas the independents and their support base could now be replaced by a political party or an independent with a completely different ideology?)

The gist of the judgement was to include the independent candidates to contest the national and provincial elections. The suggestion of running mates was problematic in that the votes could go to someone who the voter would not know. The independent candidates should consider contesting as a voluntary association and apply as a political party. If an independent candidate seat becomes available, it should be filled with the next independent candidate or political party with the highest number of votes.

Not in the Bill but to be considered for inclusion:

16. A proposed amendment to Chapter 5 (Section 68 and 69) of the Electoral Act is needed to allow for independents to have agents during elections. This could require an application to the National Assembly for revision of the bill.

The Committee wanted the IEC to clarify whether a voting station would be able to accommodate party agents and agents that would represent independent candidates.

(See document for full details.)

Discussion
The Chairperson said that the Committee would deliberate on each of the areas from the first point, so that it was able to pick up all the issues. The Committee would deliberate, and have an understanding of how it would attempt to resolve the itemised points in the document, as agreed in the last meeting. There were some issues which might affect its deliberations once the IEC came back and presented the Droop formula. However, that did not prevent the Committee from deliberating on the points in the document.

As the Committee proceeded, Members would make inputs during the meeting and gather views and then it would move to the next stage of clause-by-clause deliberations. The Committee would then request Parliament's Legal Services to raise issues in each clause which might impact on the legislation as reference for when the IEC would present to the Committee.

Mr A Roos (DA) asked if everyone would comment on point 1 and then move on to point 2, or if each Member should comment on points 1 to 16 before the next Member spoke.

The Chairperson clarified that each Member would speak to point 1 before moving on to point 2.

Clause 1
Mr Roos said that point 1 was fine.

Ms A Khanyile (DA) said the same.

Ms L van der Merwe (IFP) observed that she was the only person in the previous meeting that felt that the Committee needed to use the word 'province'. She looked at the definition of a province in the Constitution versus the Bill. It was still her view that if the Committee should use province for clarity, she would feel better, but considering that the Committee held the view that 'region' is fine, she would accept that point 1 was fine. The Committee could go with region instead of province.

Mr K Pillay (ANC) proposed that the Committee get input from both IEC and Parliament's Constitutional and Legal Services Office (CLSO) on 'region' and 'province'. For him, region does clearly define it. But one had to bear in mind what Ms van der Merwe was saying that it may make sense to use province. He was thinking about the ballots – when one votes, one says that one is voting for the provincial legislature on one ballot, and then one votes on the national ballot.

Mr Pillay said that 'Party Liaison Committee' in clause 1 was important. If one looked at the IEC submission, it had already indicated that there will be a need to amend the Electoral Commission Act to allow for that. The definition needed to be there. It was important for it to be there. The wording of 'Party Liaison Committee' was something the Committee could deal with later on whether it to change it to something else. It made sense if one said 'Liaison Committee' as it then included both parties and independents, but again, he suggested that the Committee listen to what the IEC had to say about that. He did support inclusion of independents as well as party agents as part of the Liaison Committee.

The Chairperson noted that the Committee in principle affirmed the term region. It would then have to interact with the IEC and Legal Services at a later stage, as well as the State Law Advisor. The Committee might have to come back to that but, in principle, there was an affirmation and understanding of the definition of 'region'.

On point 2, Mr Roos said that that matter had been covered. Calling it a 'Liaison Committee' was probably fine. There was a suggestion that when the IEC reported back, that the Committee could get some options, but on first look, to drop 'Party' should make it work; just to make it a 'Liaison Committee'.

Ms Khanyile said that her point was covered by Mr Roos.

Ms van der Merwe felt that all Members agreed that it could not be a 'Party Liaison Committee' because independent candidates were now included. Thus the Committee should look for a different name such as 'Liaison Committee' or 'Election Liaison Committee', or something to that effect.

Clause 2
Mr Roos said this was another clause where the Committee had asked for input from the IEC. One thing that might come up there is when one looked at the Constitutional Court judgement, it talked about how an independent candidate should be able to participate in the election and not be prejudiced by the fact that they are independent. One might need to look at an independent participating in an election versus a one-person party. And what would the difference be? In that respect, the Committee was talking about signature requirements, the ability to stand in all the regions, but only having one’s votes for one region count, etc. He was not talking about specific persons; he was talking about constitutionality and the discussions that the Committee had about the right for someone to vote for somebody, and if the person got enough votes, then they got a seat in Parliament. He thought it could be problematic if the Committee said that an independent could stand in all nine provinces, but only the votes of the highest province would count. He thought that might be problematic.

Ms Khanyile agreed with Mr Pillay, who suggested that the Committee needed to be given clarity so the Committee could take a decision instead of leaving the matter to the IEC. She had been partially covered by Mr Roos. However, she wanted to say that during the public consultations in the provinces, there was a very big concern from members of the community that it was necessary for the independent candidates to show that they really have support. That needed to be a qualification set out in the requirements so one did not end up with a very long ballot paper. Perhaps that was something that the Committee needed to look at and decide on.

Ms van der Merwe noted that this was an issue in the last meeting that the Committee said it needed guidance on. The Committee could continue to debate this but as guided by CLSO. She knew that Mr Pillay felt strongly that independent candidates must be treated the same way as political parties. But she held a different view. The Committee should encourage independent candidates as the court ruling guided it when stating that one should make conditions for independent candidates to contest elections. Parliament should not be putting up barriers for independent candidates to be able to contest. It was unfair for independents to pay the same deposit as a political party. It was the same with signatures: If one asked independents for signatures, then would the political parties also be asked to have signatures? She understood the reasoning that one did not want a long ballot paper. However, in the 2021 Local Government election, 325 political parties contested the election. She appealed that in everything that the Committee did in amending the Electoral Amendment Bill, the Committee should keep fairness in mind. She felt that this specific clause was an issue that the Committee should further debate after it got input from CLSO.

Mr Pillay was of the view that the Committee should get legal input. The last thing the Committee would want after it finalised the Bill, was court action or court case against the Bill based on that. What was important was the principal view that there is going to be a need for criteria. He wanted to caution Ms Khanyile that the Committee did not use the word “qualifications” because he thought there was confusion at some of the hearings about having matric or post-matric. It was actually “criteria or requirements” to contest as an independent. He observed that the current form of independents at local government level required signatures in terms of support. The question here was about the number of signatures needed, and the Committee could still have that discussion and as it deliberated further.

Clause 2 also spoke about deposits. All in all, those three points would filter into clause 2, about whether it was a regional list, whether one was registered to vote, or an ordinary resident. What would happen is if one was contesting a particular region, it meant one would have to have signatures and a deposit for that region. The same would apply to all the regions, and one would not be able to use the same signatures in each region. One would have to use different signatures if one was contesting in a different region. If the Committee had further deliberations, it would be able to tell if it can be open.

On the point from the IEC submission that one aggregate the votes, the Committee needed to have clarity because there was the view that one cannot do that. But then what happens when independents are contesting different regions and getting signatures for each of those regions? His opinion was that the Committee would only be able to deliberate on this once it had legal guidance.

The Chairperson said one area Members may need to discuss further was if there was a need to have more barriers for independent candidates, which may constitute unfairness. An argument which arose from the public submissions was that political parties seemed to want to bring in law that would make it difficult for independent candidates to participate in both the provincial and national elections. The CLSO needed to expressly present that. Arising from this clause, the Committee may need to affirm the principle of fairness to independent candidates (as per the Constitutional Court judgement) to participate in the national election. Ms van der Merwe had properly captured the idea of political parties feeling a need to create more barriers for independent candidates. He asked for Members’ take on the narrative that political parties wanted to bring in a lot of barriers that will limit the participation of independent candidates.

Mr Roos replied that what came out strongly in the public hearings was accountability in addition to fairness. The showing of support was an indication of the fact that one was accountable to a voting constituency. He did not think political parties would have a problem if parties also had to submit a list of supporter signatures. Fairness was the one side, but accountability was the other side, to say if one should run. There was an example in 1994 where there was a party called the KISS (Keep It Straight and Simple) Party on the list. He recalled that people were quite curious about that. When people went to find out who the KISS Party was, they found that it was the wife of a wealthy person who just formed the KISS Party, paid the fees and put it on the ballot. Again, fairness was the one aspect, but accountability was the other aspect.

Another aspect was the signatures. He recalled that the Chairperson had mentioned the IEC processing tens of thousands of signatures. It might be useful for the Committee Researcher ahead of next week's meeting to find out what best practice on how those signatures are handled and calculated, so Members can understand what was done around the world about that. Members would also be able to understand how one would make this practical, because otherwise one could have 40 to 50 candidates, each with 30 000 signatures, and somebody has to go through the several hundred thousand voters and verify them, which can create quite a massive challenge. That was another item the Committee could potentially look at.

Ms van der Merwe said that the Chairperson captured what she was trying to argue earlier. She understood there were concerns on the one hand about a long ballot list. The Committee’s job as lawmakers is guided by the outcome of the Constitutional Court. The Court had given Members a task to include independent candidates in the election. The Committee’s job, therefore, was not to create barriers for independent candidates to stand, but to create fairness, equality and ensure inclusivity. For example, she did not think the Committee could use the argument to say, “let’s look at the conditions for a single-member party”. She did not think the ATM went into the last election thinking it was only going to get one member. The ATM contested an election hoping to become the government of the day. The ATM ended up with one MP and the UDM ended up with two MPs. Such parties were contesting in the same way as the ANC, DA, IFP or EFF.

When talking about political parties paying deposits, one could have a scenario where the ANC submits a list and pays a R100 000 deposit, but also has 100 000 members it is fielding around the country. In her view, one could not expect an independent candidate to pay that same deposit. If Members said that there needed to be a deposit, what is a fair deposit for an independent candidate? If Members agreed on signatures, what was a fair number of signatures, and should that also be extended to political parties? She was not against signatures or deposits. She was only appealing that there should be a fair formula.

Ms Khanyile agreed that in all that the Committee was doing, it needed to ensure that the independent candidates were also treated fairly.

Mr Pillay wanted to dispel the notion that political parties were trying to put in place many barriers for independent candidates. That was not the case. It was not as clear cut as the court judgement that said to for independents to contest elections. There were so many other things that came into play when one has to take into consideration the inclusion of independents. Even after this process, there were going to be so many other pieces of legislation that would have to be considered and perhaps amended just to be able to allow for this. If the Committee rushed the process, it might cause a serious challenge later on or there could be “legal challenges left, right and centre”. Political parties were not wanting to put in place many barriers.

There had to be some kind of criteria because if there were no criteria, it meant that just anyone and everyone could contest elections. He cited the point made at the public hearings by ordinary community members who spoke about the challenges at municipal level where people had contested and got elected as independents but then disappeared. Then, important items such as the budget of municipalities could not get passed as meetings did not have a quorum and council meetings could not be held.

Again, it came to what Mr Roos was saying about accountability and who holds that independent candidate accountable. Another important point, which he felt the Committee had missed was the public submission saying that it was not just independents, but also new political parties which should be required to follow that same criteria of getting signatures. He agreed with Mr Roos that it would not be a challenge if new political parties had also to provide signatures. Getting signatures were levelling the playing field and it would not be a serious challenge for political parties because they have membership databases across all provinces.

He also agreed with Ms van der Merwe that there should not be many barriers but one needed to have some kind of criteria for those contesting elections. One had to show that one had support before being able to contest. One would be contesting a bigger space; it was not just local government elections in one’s ward. This was about a legislature, both national and provincial. It was important that there had to be clear guidelines on what the criteria and requirements were.

The Chairperson said they would need to probe that discussion and thanked Members for their contributions. The IEC needed to give input on benchmarking in the processing of independent candidates in the local government elections when it dealt with the Droop formula.

Clause 3
Mr Roos said the points under clause 3 were related to what Members were discussing; this was the non-compliance aspect of those matters. He did not have anything to add to the policy discussion at that point.

Ms van der Merwe, Mr Pillay and Ms Khanyile said they were covered by Mr Roos.

Clause 4
On point 3 Mr Roos observed that the Committee had had that discussion when it discussed clause 2. More input was needed on the signature requirements, etc. and then also the three-month period.

Mr Pillay observed that points 3 and 4 under clause 4 had been discussed at length. Point 3 was talking about candidates needing to be ordinarily resident in a region, which was featured above. Point 4 was talking about signature requirements. Members agreed that they needed to get further input on that. Point 5 talked about the deposit (which Members had already discussed).

The Chairperson noted that the Committee had exhausted the issues for discussion in points 3 to 5 under clause 4.

Ms van der Merwe agreed.

Mr Roos asked for clarity, because his understanding was that the Committee was looking at the amendments from last week and just trying to get an agreement on those. From what he saw in the document, the next one was clause 11, point 10. Or did the Chairperson want Members to speak to all of the clauses, in which case it was more like a clause-by-clause deliberation?

The Chairperson clarified that the intention was to get contributions on those points so that it resolved principal issues, noting that there were stakeholders that had to come back and deal with technical issues. Then the Committee would be able to go clause-by-clause, and have resolutions for the purpose of the Committee in terms of the clauses. Now Members were contributing, and where there were responses that needed to come back to the IEC on technical areas, it would then be able to resolve those issues. The “danger” was that if Members made resolutions now, they may get [unclear 01:05:32] on another view. It was not wrong to change one’s decision, but it would assist the Committee to have a proper resolution on the framework it had established.

Mr Roos said that he had no input on point 5 at that point.

With point 6, Mr Pillay wanted to agree that the Committee should deliberate on the number of signatures and not the IEC. It was something that was included in the bill. But he also wanted to support what Mr Roos was saying: That perhaps the Committee could look at other practices and look at what the formula was around signatures or even criteria, and perhaps receive a presentation on that topic. The Committee could then deliberate further on it. But he agreed that the part in the requirements in terms of the number of signatures should be in the Bill itself, and not left to the IEC.

Ms van der Merwe said that she was not against deposits and signatures, but she wanted it to be fair. Thus, the fairness issue needed to be looked at. When the Committee looked at a “cooling period”, she did say in the previous meeting that she thought three months sufficed. She felt that the Committee had dealt with all of those issues in the previous discussions.

On signatures: Mr Roos and Mr Pillay made the point that the Committee should look at other examples of how countries had handled that, and then the Committee could take it further.

The Chairperson noted that the Committee would link up with Mr Salmon and the team, as well as the IEC. Members raised the point that the Committee might need to look at best practices, particularly on signatures. Members would recall that in 2021, the IEC gave the Committee a presentation on the practices in other countries, with an attempt to reflect on what the Constitutional Court judgement raised. He thought that a report would assist the Committee concretely on the signatures, on which the Committee might need to get the IEC’s inputs. Members were persuaded that that matter should also be included in the Bill. That would take the Committee to an earlier discussion, which noted that the signatures may need to be extended to political parties, or to the new political parties that would be in the National and Provincial Assembly. The IEC would help the Committee to refine the benchmark presentation, which it had presented in the previous meeting. It was helpful in understanding the Constitutional Court judgement, and also the terrain and practices of countries outside of South Africa.

On clause 4: With the cooling-off period, there was a principal understanding that it may need to be affirmed as it was in the document. He asked if he had understood the point by Mr Roos.

Mr Roos confirmed that that was correct.

Mr Pillay had a differing view. If there was going to be a requirement of signatures, etc., then a cooling-off period might not be necessary (at a later stage, the Committee would reach that decision). Such an issue might not be clean-cut, namely that one would require “x amount” of signatures in a period of time before registration of candidates for elections, and if it then became necessary to have a cooling-off period. He would be guided by the views of the Committee, and if the Committee agreed that there should be a cooling-off period, then perhaps he would agree with that as well. But his view was that if there was going to be a requirement of signatures, then perhaps one needed to look at if it was necessary to have a cooling-off period. His view was that if there was going to be a requirement of signatures, then one needed to have a look at if it was necessary to have a cooling-off period, because one was already going to have that space of time. There would be an opening and closing date for the requirement of signatures. That might already be a “cooling-off period”.

Ms van der Merwe felt that the issues raised around clause 4 were something that the Committee needed to debate further. Fundamentally, she did not have a problem with the cooling-off period, although she heard what Mr Pillay was saying. In her view, the cooling-off period and its proposed time frame added to the checks and balances, which the Committee had been talking about previously.

[Mr Pillay took over as Chairperson due to the Chairperson having difficulties with his network].

Clauses 5 to 7
Mr Pillay said the discussion on these clauses had already been dealt with. The information was covered in the points on what might have to be looked.

Mr Salmon confirmed that there were no contentious issues in clauses 5 to 7 in the submissions. He put them in the document for reference, in case anything came up, so that the Committee would not be accused of missing any out.

Clause 8
Mr Salmon said Clause 8 spoke to the topic of refunds and related to the requirement for a deposit. If the Committee decided that the deposits were to be the same, then the section on refunds would have to change as well. The document noted that depending on decisions about deposits, the section on refunds may have to change.

Mr Pillay observed that it made sense. If one was to ask a person to pay a deposit, then it should also state that there would be a refund if the person did get a seat.

Mr Roos, Ms van der Merwe and Ms Khanyile agreed.

[The Chairperson reconnected to the platform].

Clauses 9 and 10:
There were no contentious issues

Clause 11
Mr Roos commented on point 9. Clause 11 talked about 200 regional seats and 200 national seats. He did not think that there was a general issue with that. The more regional seats, and the more calculations that took place for independent candidates, the fewer distortions there might be if one had 300 regional seats to 100 national seats. He felt that 300/100 seats would lessen some of the distortions from lost votes, etc.

Mr Pillay agreed that the ratio should remain 200 regional seats to 200 national seats, with compensatory seats.

Ms van der Merwe said that she did agree to an extent with having 200 regional seats to 200 national seats. However, if one went back to fairness, and to the concern raised in the public hearings that independent candidates could not contest all the seats, then 300 seats would be better as opposed to 200. Such a ratio (300/100) would deal with fairness, and with other issues that might arise as Mr Roos indicated. It was something that the Committee would have to continue debating, but she would be in favour of a bigger portion of seats being able to be contested by independent candidates.

Ms Khanyile said that her points were covered by Mr Roos.

Mr Pillay supported the ratio of seats remaining at 200/200.

The Chairperson suggested having the principle of 200/200 seats, because different views were expressed on the matter of representation. It went back to the matter raised earlier on the fair participation of political and independent candidates, or individual persons. He got the sense that Ms van der Merwe had made slightly different contributions on the matter.

By the time the Committee deliberated on points 10 and 11, the IEC would have presented the Droop formula. That presentation will clarify for the Committee the options in terms of the representation of seats in the Electoral Amendment Bill proposed amendments. The Committee might need to consider a policy position on the allocation of representation in Parliament.

On points 10 and 11, Mr Roos observed that the Committee had debated these at length and that these points reflected the discussion. The DA’s policy was to have more constituencies closer to voters (specifically multi-member constituencies). However, the Committee would not make those changes in time for the next election if it insisted on including that change this time around. Certainly, it was something that the Committee needed to look at quite urgently after the election.

Ms van der Merwe said constituencies were important, but considering the time frames and the need for the Committee to finalise this work, it would have to be deferred to a later Amendment Bill.

Ms Khanyile said her points were covered by Mr Roos.

On points 10 and 11, Mr Pillay agreed that the Committee would not be able to deal with that today and that perhaps it should be a discussion at a later stage.

The Chairperson said the Committee would skip point 11 unless Members still wanted to make contributions. The Committee had resolved that it needed the IEC to deal with the Droop formula in detail at its next meeting.

On point 11, Mr Pillay asked for clarity as he heard Mr Salmon say something about three rounds (of contestation over regional seats). Perhaps the Committee needed to understand what the current system was, and how many rounds were used in the current allocation of seats in Parliament. That point needed to be included as part of the IEC presentation. The three rounds were what was put in the Bill, but that was not part of the current system being used.

The Chairperson observed that the IEC did express its response on that matter. The Committee might need to bring back that item to deal with it at the level of the IEC. The IEC “was not appreciative” of the proposed rounds in the Electoral Amendment Bill. Thus, the Committee would come back to that matter. The Chairperson thought that the IEC was proposing that the Committee may need to consider an alternative to the three rounds, on the basis that it may not fairly accommodate the participation of independent candidates. That was the Chairperson’s understanding; the IEC might need to elaborate on that point when it responded next week.

The Chairperson asked Mr Salmon to note the matter of allocation of rounds and best practice in the document.

On points 13 and 14, Mr Roos said those points also related to point 11. His understanding from a meeting the Committee had with DHA and IEC, was that the IEC indicated that the seat allocation system needed to change; and that the IEC would bring the proposed rewording for that change that was agreed on at that stage, and that the Committee would receive that rewording. All of those points were interlinked. For example, if the independents were on the proportional representation (PR) ballot, that then affected the different rounds one had, how many ballots one had, and so on. His understanding was that the Committee would receive the reworded seat allocation process. About two meetings ago, Ms Molekwa requested that the Committee receive step-by-step guidance on how that worked, so that the Committee was clear on the process, and could then finalise that point.

Ms van der Merwe agreed that the Committee should wait for the IEC to come back on that. The IEC should take it through the steps and proposals, and how things would work in practice.

Mr Pillay was fine with waiting for the IEC to come back and give the Committee a presentation. He noticed that the IEC mentioned three ballots, which made sense. However, perhaps the Committee needed to deliberate further on whether having two ballots should remain, or if having three might make sense.

The Committee had covered the compensatory seats matter in point 13.

Mr Salmon indicated that the Committee skipped out point 12. That related to where parties did not have enough members on their lists and therefore forfeited seats, versus the option of ensuring parties had enough members on their list prior to the election so they did not have to deal with that. The question was whether to sort out the matter before or after the election.

On point 12, the Chairperson replied his understanding was that because the Committee would be receiving information on the seat allocation formula this might give clarity on point 12. When the Committee had earlier discussions that point was reflected in the document.

Mr Roos said his understanding of the way it worked was that if a party did not have enough members on its list for the number of seats it had, then it had a small time period to correct that defect. He was unsure why the Constitutional Court judgement required the Committee to change that. He did not see what the benefit was for independent candidates.

Mr Pillay thought that point 12 spoke to the filling of vacancies. But he agreed that if a party did not have enough members on the list, then it was given an opportunity to make those changes because ultimately that seat still belonged to the party. Point 12 spoke to filling of vacancies, because there was that discussion on whether there should be by-elections. Members agreed in principle that it was not going to be feasible to run by-elections. Perhaps the proposal the Committee received prior on the filling of vacancies should be one that it considered.

Ms van der Merwe was unsure because the current model where one was able to submit additional names and correct after the elections seemed to be effective. Mr Salmon asked if defects should be fixed before or after the elections. However, the current model worked, so she was not sure why the Committee wanted to make changes to that. Perhaps the Committee should get further advice and deliberate on that. For now, the system as it stood worked for her.

The Chairperson asked Mr Salmon to note the current model used, so that the Committee got further insight on that process. Members had an understanding of how to resolve compliance prior to elections.

On point 15, Mr Roos recalled that the Committee discussed that matter and the agreement it came to in the meeting with DHA and IEC was that there should not be by-elections. Instead, there should be either re-calculation or use of the calculation from the last election to allocate the next person in line to come in. If it is a party, then the next person on the party list comes in. The point of contention was that if an independent resigns or is incapacitated, then did one take the next independent, or if the next highest number of votes was for a party, did one give it to the party? The DA’s view was that whoever was next on the list, based on the highest remainders after the election, whether a party or an independent, then that person should get it. That was the will of the voters – the highest number of voters voted for that party or independent candidate to get the seat.

Mr Pillay agreed with the DHA proposal on filling of vacancies in independent candidate seats. One could recalculate, then give to the political party or independent with the next highest number of votes. He supported that because of the following reasons: One got allocated seats based on the number of votes one received. If a vacancy arose and the next person, be it a political party or an independent candidate, had the number of seats that met the next qualifying threshold; then that should be the person who got the seat. Having to ensure that an independent was replaced by an independent would not be fair to the electorate. It was important that the Committee take on the proposal that stated either a political party or an independent who had the next highest number of votes would get the seat.

Ms van der Merwe understood that by-elections were too costly, not feasible, and would not work. She could not wrap her mind around a running mate either, because going into an election and then having a running mate defeated the objectives. She agreed with the proposal that a seat should go to the next political party or independent. Her view was that if it was an independent that resigned or passed away, it should go to an independent. However, the question of fairness arose because if the next in line was ten political parties, and one skipped over those parties to fetch the next independent candidate, which might be number 11 on the list to fill a seat, that might not be fair. As much as her view was that independents replace independents, that might not be fair. She would thus support Mr Roos and Mr Pillay that it should be the next in line whether a party or an independent.

The Chairperson noted that Members agreed on the principle that by-elections might not be an option. The Committee needed to consider a replacement of by-elections. The modalities for that replacement were brought up by the IEC. The view was raised what would happen if for example five members of a political party resigned. That was a matter the Committee could discuss, which reflected on the principle of fairness about a replacement. The Committee might need to interact with the technical team on the principle of fairness about replacements in the event of resignation by a political party member or an independent. The Committee considered both the principle of not having by-elections, and the principle of replacement.

Mr Roos added that another discussion point was if one recalculated the result when working out who was next on the list, there was a risk that recalculation would change the quota. It was not impossible that when one recalculated, one of the parties or candidates in Parliament would then not make the quota. A proposal would be that if one was going to use the list and take the next person on the list, that one calculated that list based on the highest remainders after the election, and then that was the list that was fixed. One did not recalculate, because it would be a problem if one recalculated and somebody who was in was suddenly out – how would one deal with that?

The Chairperson noted this concern. This went back to the matter of the formula. The IEC would need to input on that so that parties and independents were able to understand the framework of those recalculations.

Matters not in the Bill but to be considered for inclusion
Mr Salmon said the Committee wanted the IEC to clarify if a voting station would be able to accommodate party agents and agents representing independent candidates. Point 16 outlined a proposed amendment to Chapter 5 (Section 68 and 69) of the Electoral Act to allow for independents to have agents during elections. According to National Assembly Rule 286(4), the Committee would have to apply to the House for inclusion of that section because it was not currently included in the Amendment Bill.

Mr Salmon added that according to the Committee revised programme, it was supposed to already be at the stage of clause-by-clause discussions by next week. He suggested assessing if there was capacity in the current meeting for the IEC to respond to some of the issues, so the Committee could perhaps make a decision. It would then be able to come up with draft clauses the following week, which the Committee could then decide on. If it did not decide on holding clause-by-clause deliberations next week, the process would be delayed. The Committee could assess if Parliament's CLSO or DHA wanted to respond to some of the questions raised in this meeting.

Mr Pillay thought this could be unfair to the IEC which did indicate the previous week that it would not be able to come with responses to the 7 June meeting. The IEC required more time, which seemed clear in the previous meeting.

Ms van der Merwe did not think that the Committee could start with clause-by-clause deliberations next week on Tuesday 14 June. She thought it was a bit premature, given that there were many issues on which Members were asking for guidance and feedback. She thought that the Committee would have to rework its programme.

The Chairperson noted that there were two issues:
1. The Committee requested that it continue with the Committee programme;
2. The Committee would allow the IEC and CLSO to come back to the Committee. In the next meeting, it would hear from the IEC and CLSO, and would deliberate further.

Thereafter, it would be able to deal with clause-by-clause deliberations. These were important matters, so the Committee needed to give the IEC time to present on the issues that the Committee raised. It would then formally recraft the document on the issues raised by stakeholders to allow for proper responses as per committee deliberations.

When it was time to deliberate clause-by-clause on the Bill, Members would fully appreciate the comments, responses plus guidance on technical issues. The Committee would then finalise its deliberations. The Committee would also note the different views expressed as it moved forward.

Ms van der Merwe, Mr Roos, and Mr Pillay agreed with that process on behalf of their parties.

Committee Annual Plan
Mr Salmon noted that it was a statutory requirement for the Committee to have an annual business plan (ABP). As Members would note from the way the Committee ended up working, its programme was a lot more flexible than its ABP allowed for, because it responded to issues as they arose. Additionally, legislation often took priority, so that could put other scheduled items further down on the agenda. The ABP gave broad guidelines and tended to be a lot more adaptable in practice.

Mr Salmon gave a summary of the key issues and strategic targets of the IEC, DHA and the Government Printing Works (GPW) in the ABP to ensure that those entities were in compliance with the National Development Plan and the larger priorities of government.

There was an outline of the Committee activities as well as key outstanding issues from the Budgetary Review and Recommendations Report (BRRR). What happened in 2021 and in previous years was that DHA and its entities would respond to BRRR recommendations within six months after the BRRR was presented. That did not happen in 2022, so the ABP had a longer list of outstanding issues, as listed below.

3.5.       Outstanding issues from 2020 and 2021 BRRR
The 2021 BRRR adopted by the Committee on 23 November 2021 of which the following are outstanding:
 
Department of Home Affairs
3.5.1.    Report on the full reopening of refugee offices in Port Elizabeth and Cape Town as per court orders as a matter of urgency.
3.5.2.    Strive towards a clean audit opinion and better adhere to in-year audit plans. In particular, the impairment of departmental revenue in collecting of penalties, issues of significant contingent liabilities and the reduction of irregular expenditure. Progress on audit plans and the Auditor General Management Letter must form part of all future quarterly performance reporting to the Committee.
3.5.3.    The Department of Home Affairs should ensure that it plans budgets properly to ensure that if 100 percent of the budget is spent, it means 100 percent of the targets are also met.
3.5.4.    DHA should continue to address long queues at its service offices.
3.5.6.    lack of policy/implementation on revenue collection should be addressed before the end of the 2021/22 financial year.
3.5.7.    The Department should review and monitor compliance with applicable legislation related to financial expenditure management so that material misstatements are identified prior to the next annual financial statements being submitted to the Auditor General.
3.5.8.    Ensure that the Department of Home Affairs assess the financial viability of more offices at malls across the country because of the large number of people and convenience at malls compared to the security risks before the next budget allocation.
3.5.9.    Assess and report within 6 months to the Committee on the cost and benefit of having security cameras, security services and cash collection for the staff and clients at vulnerable Home Affairs offices.
3.5.10. Ensure that the Department of Home Affairs works with landlords to ensure that the Bara Mall Office is renovated and reopened as soon as possible.
3.5.11. A further update on the contention around the extended contract with EOH Mthobo must be presented to the Committee within 6 Months of this report.
3.5.12. Ensure that the Department of Home Affairs secure a big enough office space and staff contingent for the Mamelodi office.
3.5.13. Increase the progress made in the modernization of all Home Affairs offices and report on the progress in this regard in the next quarterly report.
3.5.14. The relevant planning and risk Committees needed to be established or made more efficient in preventing and addressing security challenges including rapid deployment of more Mobile units.
3.5.15. The Committee welcomed the dual connectivity links at several offices and the installation of power generators at 196 offices but urged DHA to increase this number. The Department must also report on the partnership with SITA and Dimension Data to resolve the network connectivity within the 24 months target as specified in the 2019/20 Annual Performance Plan.
3.5.16. The Department should be advised to develop and implement an action plan to prevent irregular expenditure.
3.5.17. Disciplinary actions to be pursued and Cases should be opened with the Directorate for Priority Crimes Investigations (The Hawks) to address corruption, theft or fraud more earnestly before the next annual report.
3.5.18. DHA should continue progress towards registering births at all health facilities in the country to prevent late registration of birth.
3.5.19. The upgrading of key Ports of Entry should have prioritised timeframes and progress be reported to the Committee by the end of June 2022.
 
Government Printing Works
3.5.20. GPW should report on the implications of introducing legislative provisions for ring-fencing of certain government printing work prior to the tabling of such legislation at Parliament.
3.5.21. Ensure that the State Security Printers Bill is submitted to Parliament by the end of the 2019/20 financial year.
3.5.22. GPW should attempt to table their 2021/22 Annual report before May 22 and report on those being held responsible for the loss of financial data without the relevant backups being in place.
3.5.24. The Committee urged GPW to amplify their engagements with the Department of Public Works and Infrastructure to expedite the overhaul of the entire operational system to meet requirements.
3.5.25. Regarding human resources in the IT environment, the Committee urged GPW to develop a strategy to augment skills and capacity, to ensure sustainability in the long run.
3.5.26. The Minister should report on the outcomes of any ministerial task team, Committee Reports and criminal cases established to address GPW issues raised above by the end of November 2021.
3.5.27. A report must be submitted by GPW before the end of December 2021 on progress made on recovering key financial data and the cost to rebuild the financial data.
 
Electoral Commission
3.5.28. Provide detailed motivation and budgets for the procurement of permanent headquarters rather than continued payment of considerable rent prior to the end of the current lease agreement and in view of medium to long term financing.
3.5.29. The lack of finances needed to retain employment of some permanent staff and make 92 appointments as well as inadequate training contributed to the challenges that were identified during the 2021 LGEs. This must be addressed in the upcoming 2022 budget application to the National Treasury.
3.5.30. The IEC in collaboration with key stakeholders will need to further improve to ensure that more eligible South Africans are on the voters roll and participate in elections during the upcoming National and Provincial Elections scheduled for 2024.
3.5.31. The IEC needs to increase innovative measures together with its stakeholders (political parties and civil society) to address the continuing decline in voter participation, particularly amongst the youth, prior to the 2024 National Elections.
 
The Committee would update its online spreadsheet on the outstanding issues that still needed to be addressed, such as the track-and-trace system. He would send the spreadsheet to Members again.

The ABP noted the matters outstanding from DHA, IEC, GPW 2022 Budget and Annual Plans (see  document).

Part B of the ABP indicated what the Committee needed to do for each of two main outcomes:
1. Increase Government’s Responsiveness and Accountability;
2. Improved Oversight of Legislation.

On Outcome 1, an output was “Oversee programmes and initiatives of DHA, IEC, GPW” and the Committee would review performance each quarter of the financial year. Another output was “Committee Meetings Attended & Minutes Adopted”. The Committee had not done that in the current term, which it would factor into the beginning of next term. Another Committee output was “Portfolio Committee report on the strategic plan and budget votes of DHA, GPW, IEC”, usually in the second quarter. The Committee would look at quarterly reports which it had not done in Quarter 2 due to the focus on the Electoral Amendment Bill.

The Committee tried to visit the nine provinces in each five-year cycle. The Committee had already covered some of the provinces through the 2021 civil unrest oversight visits and had gone on the provincial public hearings in 2022. The Committee usually planned issue-based oversight visits to the provinces, and would probably do the visits at the end of 2022, given the work on the Electoral Amendment Bill. Each time the Committee did an oversight visit, it would have to ensure that it produced a report.

The Committee would look at reports on annual performance. The GPW Annual Report was still outstanding. GPW said that it would table the report in May, but he had not yet seen an indication that the report had been tabled. The Committee would get clarity once it had the ministerial report on the GPW investigations.

On stakeholder engagement, the Committee would engage with Home Affairs provincial managers every two years. The Committee did not do that in 2021 due to COVID-19 disruptions. The Committee would invite the provincial managers to give a State of the Province report towards the end of the year, time permitting.

There were also statutory requirements for appointment of commissioners, which it had recently done. On the outcome “Improved stakeholder engagement and public participation”, the Committee usually had an engagement once a year with non-government organisations (NGOs) and academics, usually on migrant issues. Such engagements could also be on marriage or other policy issues that emerged. Perhaps in the next quarter, the Committee would factor in a meeting with NGOs on migrants. There had been a recent upsurge in challenges around xenophobia, so the Committee would try to factor that into the Quarter 3 programme.

The Committee was also supposed to have the output of “Effective participation in international relations and cooperation" which usually dealt more with implementation of international conventions. This output was also international study tours. Budgets had been limited in the last few years, so the Committee had not done an international study tour since 2012. The Committee tried at least once a year to reapply for an international study tour, but funds had been limited. The Committee would try to factor an international study tour at the end of the year, funds permitting.

Outcome 2 was legislation. The Committee would be focusing on the Electoral Amendment Bill in the first three quarters. There were two outstanding bills: DHA Bill and State Security Printers Bill. The DHA Bill was supposed to have been tabled at the end of 2021, but had been delayed due to COVID-19, amongst other things. The outputs under Outcome 2 dealt with what the Committee needed to do when those bills were tabled, including advertisements, provincial hearings, reports and their referral to the House.

Mr Salmon informed the Committee that it could defer adoption of the ABP until the following week, given that he had sent it to Members late. The issues were not contentious, and the plan was essentially a summary of what the Committee was already doing. It was a statutory requirement that the Committee had a plan in place so it could compare its performance to its targets at year-end.

Discussion
The Chairperson said that he would get comments from Members on the ABP and the issues that needed to be taken into account since the Committee was not going to adopt it that day.

Members had been raising key concerns about DHA and GPW in particular. The previous budget vote debates reflected that. The Committee might need to get concrete progress on those key matters Members had been raising for some time. The Chairperson had gone through some of the matters as reflected in the ABP, on which DHA had not provided a progress report. There was only a year and six months left of the Sixth Parliament. The Committee might need to craft some of those for the purposes of accountability, as part of oversight work.

Mr Roos observed that the Members received the ABP at two minutes past midnight, so he did not know if any Members managed to go through it, and if they would be able to fully express their comments and input. He thought that it was important to step back and look at the kind of impact that Committee was expected to have, which was to reduce poverty, unemployment and inequality. The Chairperson rightly said that there was only a year-and-a-half left, and at the end of the five-year term – what was the Committee going to have achieved? Certain items stood out as opportunities. The Committee needed to see through improving the GPW audit performance. At one stage, GPW received very good audits. Its performance had gone down, and this was certainly something the Committee could review to ensure that the audit action plan happens, and that the Committee would see a clean audit. Clean audits were a key aspect. If one looked at the impact of poverty, unemployment and inequality, one also could see statelessness. There was a 2024 target to end statelessness, to which South Africa was a signatory. He had raised that matter in connection with a number of undocumented South African schoolchildren and government started to tackle that and put programmes in place to deal with that. Home Affairs offices were opening on Saturdays, which would enable schoolchildren to apply on a Saturday outside of school hours.

On mobile units, at one stage the Committee was pushing for mobile units, and then it was indicated that there were some new ones. However, he had started to get the sense that a number of mobile units were not operational, or were broken. The Committee needed to ensure that by the end of its term, the mobile units were fully capacitated and “out there”. The Committee was pushing this in the beginning, and it had bubbled under the surface at the moment. He proposed that at the next Management Committee (MANCO) meeting, there needed to be a strategic view stating what the Committee's top priorities were for the next 18 months so that it could state what it achieved as a Committee - rather than reacting to “all sorts of things”

Ms van der Merwe did not have the opportunity to go through the document, but would go through it in the next 48 hours. She would then send input to Mr Salmon. She wanted to thank Mr Salmon for the work that had gone into that document.

She fully agreed with Mr Roos. The Committee had two years left, and the work that the Committee did should, at the end of the day, help DHA to become stronger, more efficient, and able to deliver on its mandate and vision. For her, the concern remained about the immigration crisis, and the impact it had on the safety and security and the wellbeing of South Africa’s communities. She remained concerned about queues at Home Affairs and the slow roll-out of ID and passport services to banks. With queues, for example, there were many stories of how corruption had infiltrated DHA, because people went to those queues and bribed officials. Members each had key issues that they wanted to focus on, and the Committee only had a short amount of time left to leave a legacy, and to leave change. She agreed that the Committee should prioritise a few points to focus on for the remainder of its term. She would go through the document, and make comments before the Committee adopted the report the next meeting.

Mr Pillay shared the sentiment that he had not looked at the document in detail. But having looked at it that morning and in the meeting, there were a few things that he thought could still be looked at. Even if the Committee was not able to do international study tours, providing oversight and being able to do provincial visits was something that it could still do. The Committee had only done such provincial visits through public hearings. The Committee had not been able to do oversight visits apart from the one it had to GPW, and its visit after the civil unrest. Those were specific, and the Committee just visited when there was a “crisis”. The Committee should be providing oversight generally. It was important for the Committee to factor oversight visits into its plan, even if it was only able to do a few visits here and there.

The challenges that were very concerning to him were the queues and the IT system downtime at Home Affairs. Recently, the Committee had seen that a lot of the challenges were around the State Information Technology Agency (SITA), and he was hoping that the Committee could prioritise that challenge. If the Committee was not able to achieve that by the time its term was over, then it would look like it had not achieved much. The Committee needed to have a discussion with DHA on whether it should have its own system, and if the Committee could still make that possible. Just that past week, the reliance on SITA was a huge challenge, and the system had been down so many times. Connections from one province to another were not happening. It was creating serious challenges in Home Affairs offices. He thought that it was one of the items that the Committee should prioritise.

The Chairperson was glad that Members were resolved on service delivery to South African people. The Committee needed to account for the work it was doing in interacting with DHA, the IEC and GPW. The Committee was drawing closer to the end of its term, so it needed to prioritise certain issues. He wanted to single out the matter that was before the Committee and the IEC. Members would recall that there was a strong discussion on the consideration of electronic voting. The Committee could not agree on that submission. Those were some of the issues that the Committee might need to take up to seek out the testing of modalities in other countries, benchmarking these to domestic issues. Even if those issues mentioned by Members were not resolved in this Committee's term, there must still be an indication towards an appetite for moving in that direction.

The Committee, together with the Deputy Minister and Director-General, would have some sort of “strategic retreat” with the Committee and DHA, to deal concretely with some of these issues raised by Members. When Members were debating, there were issues coming up from Members. There was appreciation of the progress, weaknesses and challenges. The Committee needed to venture into those, so that it was able to contribute to the issues Members were talking about, since service delivery was key to South African people. The Committee could not always discuss the downtime; it had had sessions with the SITA and DHA, but it remained with challenges that it was facing. The Committee would look into the various issues that were mentioned, and it might need to have a “strategic retreat” in the period during the year on how it would deal with those issues.

Perhaps the Committee might need to caution in future that when an item is on the agenda for the Committee to discuss, a report cannot “be sent when people are asleep”. That was “setting Members up for failure” as they are expected to comment on a report received late. The Committee might need to see how it can correct that. There were other items that needed to come before the Committee. Now that the Committee is delaying the adoption of the ABP to another meeting, it delayed some of the items the Committee needed to deal with.

The Committee would go through the ABP and adopt the framework as presented. A Committee Report would be presented to the National Assembly that the Committee had made a resolution about the candidate for Electoral Commissioner, who must be recommended to the IEC.

The meeting was adjourned.