Electoral Matters Amendment Bill: DHA briefing (with Deputy Minister)

Meeting report

Mr Eddie Mathonsi (Committee Secretary for the Portfolio Committee on Home Affairs) said it was 9h00am and there were seven members of the Portfolio Committee on Home Affairs present. He suggested that the Chairperson ask the Committee Secretary for the Select Committee on Security and Justice how many members were present on their side so the meeting could start.

Mr Chabane asked Mr Mathonsi to proceed with his request.

Mr Mathonsi asked Mr Gurshwyn Dixon (Committee Secretary for the Select Committee on Security and Justice) to confirm how many members from the Select Committee on Security and Justice were present. 

Mr Dixon said there were three members from the Select Committee present. He noted that there were few apologies due to there being a Whippery meeting. Some of the members from the Select Committee would join this meeting later.

Mr Mathonsi said to the Chairperson the person the meeting could now start.

Mr Chabane greeted everyone in attendance and noted that this meeting was a joint meeting with the Select Committee on Security and Justice. He set out the agenda which included a briefing from the Department of Home Affairs (DHA) and a discussion on the issues related to the briefing.

Mr Chabane explained that following this briefing, the Portfolio Committee is going to invite the IEC early next year to present on the Electoral Matters Amendment Bill. The process today would assist with the advertising of the Electoral Matters Amendment Bill for public comments. It would ensure that there were deliberations on the issues that could be raised during the public participation process.

The Amendment Bill had been introduced and tabled by the Minister of Home Affairs in Parliament and then referred to this Portfolio Committee. The Portfolio Committee, Select Committee and Parliamentary Legal Services needed to work together during this process so that the deadline could be met and the Electoral Commission of South Africa could be allowed to deal with its undertaken processes.

Mr Chabane asked if there were apologies.

Mr Mathonsi noted apologies from Ms M Molekwa (ANC), Ms L van der Merwe (IFP) and Minister Aaron Motsoaledi (Department of Home Affairs). Deputy Minister Njabulo Nzuza (Department of Home Affairs) indicated he would have to depart early. Mr Mathonsi noted that the Office of the Chief State Law Adviser (OCSLA), Parliamentary Legal Services, and Committee staff were present.

Mr Dixon noted the apologies from the Select Committee which included one from Mr M Dangor (ANC, Gauteng).

Mr Mosotho Moepya (Commissioner at the Electoral Commission of South Africa) greeted and noted only one commissioner was missing due to being on assignment in the Democratic Republic of the Congo (DRC).

The Chairperson noted all the apologies and asked the Deputy Minister from DHA to proceed.

Remarks by Deputy Minister

Deputy Minister Nzuza greeted and introduced his delegation from the Department of Home Affairs. He said the purpose of the Department’s presentation was to brief the two committees on the progress made regarding the introduction of the Electoral Matters Amendment Bill. It was also to report on the implications of the recent Constitutional Court judgements relating to the Electoral Amendment Act.

The Deputy Minister said the Electoral Matters Amendment Bill makes consequential amendments, which arise from the introduction of independent candidates and independent representatives in the National Assembly and provincial legislatures, to the following statutes: (a) The Political Party Funding Act, 2018 (Act No. 6 of 2018) (the ‘‘Funding Act’’); (b) the Electoral Act, 1998 (Act No. 73 of 1998) (‘‘the Electoral Act’’); (c) the Electoral Commission Act, 1996 (Act No. 51 of 1996) (‘‘the Electoral Commission Act’’); (d) the Electronic Communications and Transactions Act, 2005 (Act No. 36 of 2005) (‘‘the Electronic Communications and Transactions Act’’); and (e) the Financial Management of Parliament and Provincial Legislatures Act, 2009 (Act No. 10 of 2009) (‘‘Financial Management of Parliament and Provincial Legislatures Act’’).

The Deputy Minister highlighted that a question had been raised whether it was necessary for the amendment on the 1000 signatures to be included in the Electoral Matters Amendment Bill. It was the DHA’s view that the inclusion of the 1000 signatures would not be necessary.

Briefing by the Department of Home Affairs
Adv Phelelani Khumalo (Chief Director of Legal at the Department of Home Affairs) presented on behalf of the Department.

Electoral Matters Amendment Bill

He highlighted the purpose of the Bill and summarised each clause.

Cabinet, on 29 November 2023, approved the introduction of the Electoral Matters Amendment Bill.

The Department, thereafter, submitted the approved Bill to the Office of the Chief State Law Adviser for final certification of the Bill as contemplated in rule 279(2) of the Joint Rules of Parliament.

The OCSLA certified the Bill and submitted same to the Bills Office, Parliament.

The Department also proceeded to, under Proclamation R702, Government Gazette No. 49836, publish the Explanatory Summary of the Electoral Matters Amendment Bill, 2023.

The Minister subsequently addressed letters to the NA Speaker and the NCOP Chairperson, indicating the Minister’s intentions to initiate the processes of introducing the Bill in Parliament.

Constitutional Court Judgements

On 4 December 2023, the Constitutional Court (“CC”) delivered 2 judgements on the Electoral Act, 1998 (as recently amended by the Electoral Amendment Act, 2023).

Following the judgements, the Minister, on 6 December 2023, issued a Media statement wherein the Minister welcomed the Independent Candidate Association South Africa NPC v President of South Africa and Others and the One Movement South Africa NPC v President of South Africa and Others judgements.

Minister further noted that 1 000 signatures will apply for each region in which a candidate intends to contest an election

On 8 December 2023, Parliament Legal Services briefed the Portfolio Committee on Home Affairs on the CC’s judgments, as well as the implications of the judgments.

The Department is of the view that the Parliament must proceed with the Electoral Matters Amendment Bill as is, without dealing with the introduction of the reading-in wording of the CC.

Parliament has 24 months within which to deal with the constitutional defect referred to in the One Movement judgment.

Recommendations

It is recommended that the Joint Sitting of the Portfolio Committee and the Select Committee note the progress made in introducing the Electoral Matters Amendment Bill in Parliament.

(See Presentation)

Mr Chabane said he would invite the Parliamentary Legal Advisor to comment and Mr Mathonsi to present the draft legislative programme.

Parliamentary Legal Services Input

Ms Telana Halley-Starkey, Parliamentary Legal Advisor, Constitutional and Legal Services Office, welcomed the DHA’s presentation which set out the various clauses in the proposed legislation. Parliamentary Legal Services agreed with the Department in terms of the reading-in provision on independent candidates inserted in the law currently. The bigger issue was that the presentation did not mention whether unrepresented political parties should still provide 15% of the quota or whether there should be parity.

In terms of the 1000 signatures for contestation, Parliamentary Legal Services was mindful that if this was the DHA’s policy intention to not include a thousand signatures there was a time issue at hand. Therefore, if it was the Department’s policy intention to decrease the threshold for signatures to a thousand, the Department needed to be mindful that there couldn’t be further delays.

There was now a situation where unrepresented political parties had to have 15% of the quota of the previous election to contest which was the current position of 27 (c),(a) and (b). If the Department’s policy decision or direction was to change the requirement of 15% it had to be done now. This was because the elections were looming and therefore there could be no delays.

Her second point pertained to understanding what the process going forward would be. Mr Mathonsi would be able to describe the process better because he was in contact with the National Assembly (NA) Table. At this point, the Electoral Matters Amendment Bill would be published along with a call for public comments. However, if the Department intended to extend the Bill’s scope and bring parity to the unrepresented parties a simple solution would be to advertise the Bill as is and invite the public to comment on the situation on unrepresented political parties. This was the only position the Department decided on.

Ms Halley-Starkey added that at this stage, Parliamentary Legal Services welcomed that presentation and agreed on the insertion of the reading provision which was not necessary. 

Mr Chabane highlighted that Parliamentary Legal Services briefed the Portfolio Committee on Home Affairs last week and issues were raised for the Department to respond to. The purpose of highlighting last week’s meeting was to ensure that the Select Committee on Security and Justice was aware that some of the issues the Department was responding to were raised in a meeting last week. The Select Committee on Security and Justice was not present in that meeting.

The presentation the Parliamentary Legal Services gave to the Portfolio Committee on Home Affairs last week would be made available to the Select Committee on Security and Justice.

Mr Chabane asked Mr Mathonsi to present the draft proposal on the process going forward.

Draft Legislative Programme

Mr Mathonsi said when drafting the programme related to the processing of this Amendment Bill the Secretary of the National Assembly (NA) was consulted. The Committee Secretariats from the Portfolio Committee on Home Affairs and the Select Committee on Security and Justice drafted a consolidated programme that would allow the two committees to process the Bill urgently.

Mr Mathonsi noted the drafted programme indicated that in December the Department would brief the committees and introduce the Bill. There was no exact date indicated because the date of the briefing and introduction of the Bill was unknown at the time the programme was drafted. Today was the day the Department was briefing the Committee on the Bill after its introduction. The next phase of the process would be publishing and advertising the Bill for public comment on social media and Parliament’s website.

Mr Mathonsi noted the time constraints as Parliament was closing on Thursday. The Bill and the advert needed to be up on Parliament’s website by Thursday so the public could make submissions. He recalled that additional issues that were raised by the Select Committee were also advertised around this time last year.

The advert on the Amendment Bill published last year would be emailed to some of the stakeholders. Mr Mathonsi hoped that there would be advertising done in print media. The advert on the Bill was also sent to translators to be translated into the other ten languages. Therefore, if it was decided that the matter on the 15% threshold needed to be added to the advert the advert would have to be resent so that it could be translated into the other ten languages.

Mr Mathonsi said if the advert was published this week it would run until the 2nd of February 2024. Once the advertising period concluded, a joint public hearing with the Select Committee on Security and Justice would be held. The joint public hearing was scheduled for the 5th and 6th of February 2024. After the public hearings, the DHA, IEC, Parliament, Parliamentary Legal Services and the Department of Communications and Digital Technologies (DCDT) would respond to the public submissions made.

Mr Mathonsi said the DCDT had to respond because of the Electronic Communication Act that falls under this department. Parliament also needed to respond because of the Financial Management of Parliament and Provincial Legislatures Act. The Bill’s implementing agent was the IEC and therefore, the Commission had to respond too. After the responses to the public submissions made regarding the Bill, the Portfolio Committee on Home Affairs will consider and adopt the Motion of Desirability (MOD), deliberate on the Bill, consider and adopt the A-list with the state law advisors and deliberate on the Bill clause-by-clause. The Portfolio Committee would then consider and adopt the Bill and its report by the 19th of February 2024.

Mr Mathonsi said although it was indicated as the 21st of February 2024 on the programme once the Portfolio Committee finished with the Bill, the NA should then consider the Bill and refer it to the National Council of Provinces (NCOP). The Select Committee on Justice and Security would only have to deliberate on and finalise the Bill before sending it to the NCOP for processing. This was because the briefings, public hearings, and responses to the public comments regarding the Bill would be done jointly with the Select Committee on Justice and Security.

Mr Mathonsi said as stated by Parliamentary Legal Services if like today’s briefing the public hearings were held jointly it might mean that substantial changes to the Bill don’t need to be made. This was because some of the issues in the other legislation were just technical issues. If changes were made to the original Bill, it could create problems for the Select Committee. They were looking to finalise this Bill by the 28th of February 2024.

Mr Adam Salmon (Content Advisor for the Portfolio Committee on Home Affairs) indicated that on the 7th of February 2024, the Committee’s programme was changed to ensure that there were summaries of the submissions. He said the legislative programme had not been updated yet to reflect that there would be summaries of the submissions that the researchers and content advisor team would consolidate and present to the Committee before the DHA responds. This was the one change the Committee Secretariat had made since drafting this programme.

Ms Sarah Govender (Senior State Law Adviser, at the Office of the Chief State Law Adviser(OCSLA)) noted the presentation from the DHA, the comments from the Parliamentary Legal Services and Mr Mathonsi’s proposed programme. The OCSLA had nothing further to add at this stage but she and her colleagues were available to assist this Committee in the finalisation of the Bill.

Discussion

Mr Chabane asked that both the committees proceed with their comments and questions on the presentation from the DHA on the Amendment Bill. He asked the Chairperson of the Select Committee on Security and Justice, Ms Shaikh, to comment or provide some guidance on how the process would unfold. He further asked Ms Shaikh if the Select Committee would raise comments and questions later to the DHA.

Mr Chabane said the Portfolio Committee’s understanding was that the presentation from the DHA was for noting so that the process of advertising and public submissions could proceed. The committees would be able to contribute in detail to the finalisation of this Amendment Bill.

Ms Shaikh thanked Mr Chabane and greeted everyone in attendance. She wanted to comment on the NCOP’s processes for processing the Bill. The Select Committee was committed to this process and expediting the Bill but this was also dependent on whether the Portfolio Committee made amendments at the end of its process. This was because these amendments would have implications for the Select Committee’s processing of the Bill.  If there were amendments, the Select Committee would have to review this aspect. The Select Committee wanted to ensure that in processing the Bill the correct prescripts in terms of the Constitution and processing of Section 75 legislation were adhered to.

Ms Shaikh added that in terms of the Rules of Parliament and processes, questions related to the Bill would come later.

The Chairperson invited members from both committees to comment and ask questions on all the presentations and programme proposals tabled.

Mr K Pillay (ANC) noted the presentations and said it was fine for the Committee to proceed. She added that two things needed to be considered. The unrepresented political parties needed to be considered which was perhaps a discussion for later.  In terms of the programme, consideration of the State of the Nation Address (SONA) was needed. There may be an oversight regarding SONA.

Ms A Maleka (ANC, Mpumalanga) noted the presentation and hoped that the proposed programme went as scheduled. The Portfolio Committee would ensure that the public hearings and everything else was done. She had no questions.

Mr A Roos (DA) wished the Minister of Home Affairs a speedy recovery. He agreed with the Department’s suggestion that the Bill continue as is with a reading in and that the Bill’s scope not be extended. The proposed schedule with a completion date of 28 February 2024 was aggressive. He wanted to understand if the tagging of the Bill was as a Section 75 or Section 76 bill.

Mr Roos was concerned about Section 10 where it was mentioned that the change was made because of the State Capture Report. He said Section 10 seemed to be weakened because it prohibited donations to members of political parties but now it was said to be okay as long as the donation was not made to influence the awarding of tenders or licences etc.  He wanted to know how this would be policed. For example, if a person made a donation and got awarded work but the donation did not influence this decision, how would this be policed? He did not understand how this was a consequential amendment that had to do with independent candidates. This seemed to be a different issue being brought in.

Mr Roos also wanted to know how the parties accounted for these donations. If it is a donation to a member of a political party, is the political party responsible for getting this information and reporting this to the IEC? What defined the reasonable grounds by which the IEC could suspend payments to political parties and independent candidates?

Mr Roos said this was a joint programme with a completion date of 28 February 2023. He wanted to understand whether regulations would need to be changed and how long that process would be.

Ms T Legwase (ANC) noted the presentations and the presented draft consolidated legislative programme. He suggested that the dates be checked to ensure that nothing stopped them from completing the processing of the Bill by the 28th of February 2024. He had no further comments or questions.

Ms M Bartlett (ANC, Northern Cape) said she was present and had no comments or questions.

Mr R Badenhorst (DA, Western Cape) asked if the Bill was a Section 75 or Section 76 bill.

Ms A Khanyile (DA) said she had been largely covered by her colleagues. What was left was now to ensure that the 28 February 2024 deadline was met. She asked if there were regulations that would need to be changed after the 28th of February.

Mr Chabane noted that some members from both committees were experiencing network issues.

Ms Shaikh commented on the extension of the Bill’s scope especially in terms of the 15% signature quota and unrepresented political parties. She said a question the DHA still needed to respond to was the implications of policy related to signatures and unrepresented political parties. Perhaps both the Portfolio Committee and Select Committee needed to consider including these matters.

Ms Shaikh asked a question related to Clause 12. She asked for clarity in terms of the right to refuse donations or allocations. She understood the refusal of donations from private persons but in terms of refusals related to allocations from the multiparty and independent democracy fund, she asked for clarity in this regard.

Ms Shaikh said she wanted clarity in terms of Clause 29 and the amendment related to funds allocated to unrepresented political parties and independent candidates on a proportional and equitable basis.

Mr Chabane invited the DHA, the IEC, Parliamentary Legal Services and the Deputy Minister to respond to the questions raised. He also wanted to raise the matter about Clause 29. Has the DHA interacted with the IEC’s presentation that had been communicated to the Committee? Did it interact with the IEC's interpretation of the signature requirement? This was because there was a line by the IEC on the signature campaign for independent candidates.

Mr Chabane noted that the IEC had not been invited to report to the presentation because a time earlier in 2024 had been allocated for an interaction with the IEC. He also asked that comments be shared on the proposed schedule to ensure that there was alignment across the board. As mentioned, the IEC was already under pressure to deal with other issues such as regulations.

Mr Chabane asked if there had been interactions with other departments particularly, the Independent Communications Authority of South Africa (ICASA) on the issues related to this Amendment Bill. 

Adv Khumalo said the DHA had interacted with the IEC’s presentation and was busy with adjustments to the IEC’s budget this morning. He spoke to the DHA’s Chief Financial Officer (CFO) about the need to allocate more funds to the IEC because of the 1000 signature requirement. The requirement meant that more ballots needed to be printed than anticipated.

In terms of Section 10, the wording remained the same and rather an insertion was made that dealt with donations with expectation. He understood the concern of how this would be policed in cases where it was a mere coincidence that a person who donated during an open and fair process was awarded a tender in the portfolio of the person to whom they donated. These matters, like all other crimes, needed to be investigated when complaints were raised to ascertain if everything was above board and in the case wrongdoing is discovered escalated.

Adv Khumalo said Clause 26 gave the President the powers to make regulations and there were a lot of sections where regulations would have to be made. He said the DHA intended to not wait until the last minute to draft regulations that were critical to the implementation of the Amendment Bill. Waiting until the last minute came with the risk that some sections would not be implementable so to avoid this the DHA planned to draft important regulations in time.

Adv Khumalo invited the OCSLA and Parliament Legal Services to respond to areas that he had not covered in terms of the committees’ questions. He also asked the IEC to respond to the questions especially those on the threshold in terms of donated funds.

Ms Halley-Starkey said the OCSLA and Parliamentary Legal Services recommend that the Bill be tagged as a Section 75 Bill but the final decision was the Joint Tagging Mechanism (JTM). The JTM’s decision will be made by the Portfolio Committee’s next meeting.

The Chairperson asked the IEC to comment even if they were invited to formally present early in 2024. This was because it was important to get a sense of the IEC’s thoughts, especially on the proposed schedule for processing this Bill.

Mr Mosotho Moepya (Commission at the Electoral Commission of South Africa) noted the presentations and said the IEC would comment when invited back to the Portfolio Committee. In the next interaction, the IEC would look at the issues that had been raised and incorporate them in their comments.

Deputy Minister Nzuza said there were a lot of issues that would be dealt with during the consultation process that would have been introduced and presented earlier in this meeting. The Department - in its approach - set out to assist the IEC in ensuring that the elections were well run and on time. The DHA had no intention of delaying the process. There was a clear directive from the Constitutional Court on what issues regarding independent candidates needed to be fixed within 24 months and what was deemed urgent around the issue of 1000 signatures.

The Deputy Minister said it was directed that this requirement be directly read in which meant that it was already included. This issue had been dealt with and the DHA did not have a policy appetite or a policy direction to venture into issues regarding unrepresented political parties. This was because in terms of the scope as per the Constitutional Court standing from the previous judgement on the introduction of independent candidates, the DHA’s approach was to take the minimalistic approach whilst broadening the overall situation.

The Deputy Minister said the advert for the review panel went out this morning. The panel would be doing extensive work related to electoral reforms. However, for now, the Department was dealing with the issue of donations as per the Constitutional Court’s directive.  The main issue with donations was the prevention of people with scrupulous intentions from funding political parties and independent candidates. Corruption was everyone’s concern and tightening up laws and regulations made it easier for law enforcement to with these issues. This amendment meant that people could report instances where an intention to rig the tender awarding process was suspected. Law enforcement agencies would then be able to investigate and enforce the law just like any other crime.

The Deputy Minister said the Department would be available to respond to further questions the Portfolio Committee had.

Mr Chabane asked if Ms Shaikh had additional comments.

Ms Shaikh noted it was indicated that the Department and IEC could come back to respond to outstanding questions. She asked that the issue related to the 15% signatures for unrepresented political parties be discussed further.

Closing remarks from the Chairperson

Mr Chabane thanked the Deputy Minister, DHA, Parliamentary Legal Services, OCSLA and the IEC and noted the presentations made in this meeting. The Portfolio Committee will await the IEC’s response on the matters raised in this meeting.

Mr Chabane appreciated the presentation as it would assist both committees in terms of further consultations and public hearings. Now that the Department had briefed the committees, the programme proposed by Mr Mathonsi would be followed. The Amendment Bill would be advertised for public comment and once the public comments were made discussion on issues including the issues raised in this meeting on the Bill would be had. Careful consideration of the Constitutional Court Judgement and the work of the IEC would take place.  The committees needed to work hard together to assist the IEC and make the work of processing this legislation easier.

Mr Chabane said the DHA still needed to consult with ICASA and other departments on this Bill. The Portfolio Committee also still needed to hear ICASA and these other departments' responses and attitudes in terms of this legislation. He noted all the reports and comments and assured that there would be formal deliberations after the public comments were made early next year.

The Portfolio Committee would be inviting the IEC to respond formally to the DHA’s presentation early in 2024.

Mr Chabane thanked everyone in attendance and wished the Minister of Home Affairs a speedy recovery. He noted that this was the Portfolio Committee’s last meeting of 2023. He wished everyone a happy festive season.

Mr Chabane said as public representatives they were preparing for voter registration in February and suggested that everyone work hard to respond to the issues raised.

Mr Chabane asked the committee secretaries from both committees if there were additional comments.

The comment secretaries had no additional comments.

Mr Chabane thanked both committees.

The meeting was adjourned.