Implementation of Concourt judgement; with Ministry & Remuneration of IEC Commissioners; GPW Oversight Report

Meeting report

Opening Remarks
The Chairperson greeted the Minister of Home Affairs, Dr Aaron Motsoaledi, and the
Deputy Minister of Home Affairs, Mr Njabula Nzuza, the Chairperson of the Independent Electoral Commission (IEC), Glen Mashinini, the Deputy Chairperson of the IEC, Janet Love, members of the media, stakeholders and Members of the Committee.

He confirmed the agenda and stated that he had invited the IEC to have a notes-sharing or information-sharing session. He had also invited the Minister and the Deputy Minister because, administratively, the IEC received its allocation from the Department of Home Affairs (DHA) and because a lot of the work done by the IEC had to be corroborated by DHA. He was aware that the IEC was a Chapter 9 institution and the content of its work was that of a constitutional institution. The Committee was clear about the different ways in which it had to interface with the Department and how it should interface with the IEC.

The Committee had invited the IEC to give a helicopter view of the norms and standards in neighbouring countries as the Committee looked at the implications of the Constitutional Court (Concourt) judgement. The IEC was going to give options as it would be up to Parliament and the Executive to decide which way to go. The Executive had to give the Committee guidance as there would be financial implications for whichever method of instituting the court judgement was decided on. The IEC was there to equip Members of the Committee as study tours to Botswana and other countries were not possible due to the lockdown. However, the IEC was well-versed in what was happening in elections in other countries. The IEC would share with the Committee but questions would not be posed to the IEC. Committee Members could engage in discussion but the presentation would not be used as a template.

The Chairperson cautioned that the presentation should not be seen as an overreach by the IEC. The Commission was assisting Members of Parliament at a technical level to understand the electoral processes and to produce a solution that would be long-lasting and would benefit the people of the country.

The Chairperson pointed out that it was a major decision. The electoral system chosen in 1994 had been based on a number of things, including but not limited to building a non-racial, non-sexist, democratic, united and prosperous South Africa. Everything in the democracy was maturing 26 years down the line, even the trias politica: the legislature, the executive and the judicial, which required that each arm of state had to work independently and interdependently and to respect and have regard for each other.  

The judgement on the inclusion of independent candidates in national and provincial elections meant that political parties had to have a conversation and Parliament also had to have a constructive conversation about the judgement and the best way to implement it. Members would really have to apply their minds for the good of the country for many years to come. As part of the research, the Committee would be inviting as many people as possible in order to engage with as many options as possible before the Committee could begin crafting legislation.

The Chairperson noted that the IEC was a scientific organisation because its work involved calculations and so it was beneficial for the Committee to engage with the IEC.  He invited the Chairperson of the IEC to make the presentation.

Presentation by the IEC
Introductory remarks by the Chairperson of the IEC
Mr Glen Mashinini, Chairperson, IEC, introduced his fellow Commissioners and the staff of the IEC. He informed the Committee that he and the Committee Chairperson had engaged to ensure that there was an understanding between Parliament and IEC because it was Parliament that made the policy options and would have to address the matter of correcting the electoral legislation as parts of it had been found to be unconstitutional by the Constitutional Court. The role of the IEC was to provide education without over-reaching its mandate. It kept to the principle of separation of powers and that was why the court had correctly requested Parliament to review the legislation and not the IEC.

As the Committee Chairperson had pointed out, the IEC was sharing electoral systems from around the world to embellish the Members’ understanding of electoral systems that were at work. The presentation was not exhaustive but he believed that it would help the Committee to better understand which systems were at work. The Commission was deeply mindful that the electoral system adopted would have far-reaching implications for the Constitution.

The conversation that the Committee was embarking on, i.e. reviewing and reflecting on the country’s electoral system, had to be a broad-based and highly inclusive one, drawing on inputs from all sectors of society and most importantly the electorate and the public at large. No one size fits all when it came to electoral systems but choices would have to be made. Lessons would have to be learnt from regional and international systems as well as from SA’s own experiences. One would have to consider the various systems in the light of SA’s own Constitution and social and cultural norms.

A decision would have to be made about whether SA moved to a presidential system or remained with the Westminster system. The IEC offered to stand available to support the parliamentary process by offering technical assistance.

Commissioner Mashinini noted that some points had already been made in previous discussions. In the last engagement, Mr Dyantyi had called for a timeframe. The Committee would also need to obtain the resources required to provide support. The Commission would assist but the Committee would need other resources such as political scientists and lawyers. The Committee was advised to invite public submissions and then the Committee could come up with a shortlist of approved systems. He reminded the Committee Chairperson to conduct public hearings, even if in virtual format.

Commissioner Mashinini requested the CEO of the IEC, Mr Sy Mamabolo, to present to the Committee.

Presentation on Electoral Systems
Mr Mamabolo presented a representation of electoral systems and the constitutional values that had to underpin an electoral system. There were two main families of electoral systems in the world: (i) proportional and (ii) pluralist or majoritarian systems, also known as single-winner systems or multi-winner (multi-member) systems. Between those two broad families of systems, mixed systems had emerged. The system used for South African local government elections is the mixed member proportional system. It is an electoral system in which each voter gets two votes: one for a candidate in a constituency and another for a party. A fraction of seats are elected using plurality and the remainder from the list proportional system. The list seats are allocated after the plurality seats in such a way as to achieve proportionality with the overall party vote. Multi-party systems promote previously disadvantaged groups.

The Court stated that reading section 19(3)(b) that limited the exercise of the right to stand for political office to having to do so through a political party would result in the infringement of other rights in the Bill of Rights. In relation to sections 46(1)(d) and 105(1)(d) of the Constitution, the Court held that: i. “The focus of the sections is on the “result”: whoever the participants may be, the system must be one that “results, in general, in proportional representation,” and that “proportionality does not equal exclusive party proportional representation.”

Constitutional principles at play in SA include a fairness which implies that every eligible voter should have the opportunity to vote and that votes should be of equal value, i.e. proportionality in general. Secondly, the principle of simplicity is important so that the electoral scheme is accessible to practically every voter. The principle of inclusiveness implies that every attempt should be made to allow the widest possible degree of participation by various and diverse political preferences in the representative legislatures. The principle of accountability is a key demand in public discourse.

Discussion
The Chairperson reminded Members that it was not a question and answer session, but a time for discussion. Members could offer views, comments, etc.

Mr A Roos (DA) stated that the values described at the end of the presentation were very important, and whether or not people agreed with the values set up by the Van Zyl Slabbert Commission, they were important as they would guide all the decisions that would be made in terms of a new electoral system. The Committee should look at the values and see if Members agreed with them or not. He also agreed that accountability was very important. There had been a lot of discussion in the past about whether an electoral system could create accountability. The element of the electoral system that gave the best possible chance of making Members of Parliament accountable to their constituencies was essential but one also had to consider how the Parliamentary system worked in terms of accountability to constituencies.

Mr Roos stated that the other important point was that the Van Zyl Slabbert report stated that the members of the Commission had been rushed and yet they had been given two and a half years to come up with the report. There had been a lot of talk about changing the electoral system completely and there were two aspects to consider in that regard. Firstly, the judgement of the court had given Parliament two years to deal with getting independent candidates into the system of national and provincial elections. That aspect required a lot of consideration in terms of the Electoral Act and how it could be amended, but the Committee also had to look at the political party Acts and how those had to be changed. What other legislation was affected by bringing individuals into the system? Secondly, there was the consideration of whether or not, the Committee would the change entire electoral system.  Alternatively, the Committee could decide to address policy input on the system changes while, in the short term, complying with the court judgement.

Mr J Mcgluwa (DA) appreciated the informative input from the IEC. He had caught the point about political parties being heard. He also made the point that the Constitution said that public involvement had to be incorporated in law making. Political parties would play a pivotal role in deciding on a system and the Committee should seriously consider requesting political parties to present their positions, either verbally or in writing as that would help Parliament to take an informed decision in the matter. Political parties should prepare themselves so that they would be ready when called as time was against the Committee. The Committee should include other interested parties or organisations as they would reflect the position of the public.

He suggested that, because of the lockdown, the IEC should consider a virtual tour or benchmarking because the Commission was privy to that information. He would like the IEC to play a role in sharing the information with political parties and other parties or organisations to make informative decisions.

Mr Mcgluwa requested that the Portfolio Committee made a clarion call to IEC to come out strongly in respect of online registration. Mr Mashinini had already mentioned electronic registration.

Mr M Lekota (COPE) thanked the IEC for the presentation. It was clear that the Committee needed more time to deal with the presentation. The Portfolio Committee should consider how it could make the information available to as many people as possible, especially those in Parliament. Had the IEC considered how to make the information accessible? There was a large number of citizens not in Parliament who were critical in influencing decisions affecting the thinking of the nation. That information had to be made accessible to as many people as humanely possible.

Mr Lekota had no answer but he thought that the Committee should reflect on making the information available to citizens.

Ms L van der Merwe (IFP) thanked the IEC for the informative presentation. She agreed that it was a mammoth task and a very important issue. The information should be shared with parties and she agreed with Mr Mcgluwa that political parties, and other stakeholders, should submit their position on how they think the Committee should remedy the shortcomings in the electoral system as indicated by the court.

She noted that the Van Zyl Slabbert report had pointed out that no electoral system could guarantee accountability but the members of that Commission had suggested the mixed proportional system in which some candidates be elected directly and others from the party list. Her party was re-assessing the Van Zyl Slabbert report in relation to the judgement and would be presenting its recommendations. Although the presentation was for noting, it was important that the IEC had given Members a lot of information to digest and it was important to share that with their constituencies and political parties. The task for individual Members of the Committee, and as members of political parties, was to come back with the most perfect solution that ensured fairness, inclusiveness, simplicity and accountability.

Mr D Moela (ANC) agreed that it was an informative presentation that gave Members an inner understanding of what was happening and what could be implemented. What was important was that the Members noted the report and Members would contribute accordingly. On the issue of accountability, it was important that political parties had to make sure that there was an accountability on the issue so that, at the end of the day, they did not point fingers at one another. The Members of the Committee should work as a collective.

Mr M Chabane (ANC) said that as it was a national policy matter, the Committee might need to get clarity from the Executive as to the process. The Committee should establish a reasonable timeframe, especially for the Executive so that they could come back and outline policy options, noting the outline established by the IEC, as the 24 months would lapse quickly. The Committee needed to engage with the public, so if the Executive could come back to the Committee to give policy options by early August, political parties would then be able to engage with the process.  The IEC could also come back at that time to give assistance, as promised, to move the process forward. Members of Parliament had to commit to moving fast so that Parliament engaged with the process timeously.

Mr M Tshwaku (EFF) had hoped that the IEC would show how the electoral systems worked. Would they result in bloc votes? The main part was the “how” part and that was what some of the Members were concerned about. How would one go about things in SA? In local government, the country already had a system that included independent candidates. He would have liked to hear how it would work at national and provincial level. How would they divide into constituencies? A question was what would happen if a person died. He would like to see a correlation between the type of electoral system operating in a country and the success of the economy, such as in China and other countries. The presentation was enriching and the EFF would consider it and present a position to the Committee on the matter.

Mr Q Dyantyi (ANC) stated that the presentation had given a lot of food for thought.  He was inspired by two things that the Chairperson had said. The Chairperson had charged the Members to approach the matter as South Africans and not as party members and now that he had heard the presentation, he understood why he had made that point. The Chairperson had also made the point about it being information sharing. He appreciated the IEC making that presentation because it helped the Committee by providing a menu of available systems across the globe, without going into too much detail.

Mr Dyantyi wanted the Chairperson to lead the Committee in a number of ways. The approach of IEC to share information had helped the Committee which had decided that day that it wanted to insulate the IEC because the IEC was a key institution in SA and one did not want the IEC to be exposed as both a referee and a player. The IEC had been very careful in the way it had approached the matter as it would play a role in the elections. He did not want the IEC to tell the Committee how to deal with the matter.

He reminded the Committee that when the system had been developed 25 years ago, the drafters had only had international experience to work on. Currently, Members had 25 years of experience of how voting worked in a democratic SA. Those who had originally crafted the voting system had not had the benefit of that South African voting experience. The Members had to use the experience that they had.

Mr Dyantyi wanted the Committee to take the presentation a step further. In line with the Chairperson’s call for Members to do the work as South Africans, he asked that the Committee, and not the IEC, hold a symposium where the Members could delve into the details of electoral systems and even consider the principles of the original framers. Even those who had determined the system could tell the Committee how they had made their decisions. They could explain why they had chosen not to have a winner-takes-all position. Members should suggest who should attend the symposium of a day or two and who could be on the panel. The Committee could bring in people from the academia and even international experts. That would reinforce the Committee’s integrated roadmap.

Even though the court had given 24 months, the Committee might need to first fix the things that the court wanted Parliament to fix. He reiterated that it was important to insulate the IEC. The IEC should not be accused of pushing a particular position. He added that the Van Zyl Slabbert report was not the only signpost that the country had and it had to be seen in the context of other people’s view and ideas. Other people had their ideas, especially the younger generation.

Comments by the Deputy Minister
Deputy Minister Njabula Nzuza reminded the Committee Members to be aware of the timeframes and that whatever had to be done, had to be done within the timeframe given. He added that the final decision would not only be a decision of the Executive. He also reminded Members that the IEC was not responsible for drafting laws. Parliament had to draft the laws but the IEC could inform them of best practices and the Committee had to work quickly and incorporate best practices. In the critical time in which they found themselves, they should not point fingers at each other but craft a system that would be a legacy for generations to come.

Comments by the Minister of Home Affairs
Minister Aaron Motsoaledi appreciated the presentation. Every day that he looked at the Concourt judgement or heard discussion on it, he learnt something new or afresh. That emphasised the fact that one could not stop learning in that situation, so he agreed with Mr Lekota that more time was needed for the presentation. He supported Mr Dyantyi’s proposal of a workshop of one to two days. That was very important.  He did not want the Committee to view the court judgement just as an instruction to amend certain weaknesses in the Constitution. In legal terms, one said one was curing a mischief. He did not want Parliament to be curing something that might have been seen as a mischief in the legislation but he wanted to see it as an opportunity to come up with a new electoral system. The country had come up with an electoral system and even a Constitution which had been informed by everything that was happening elsewhere in the world. That statement was very important to him. The country had based the electoral system on what it had thought was good because it was happening elsewhere in the world. For the past 26 years, elections had happened in the country and there was currently experience of such things. He knew that society believed that political parties were scared because independents were being introduced and parties might be wiped out by the independents. He did not believe that would happen. The ancient philosopher Heraclitus had said that “the only constant in life is change”, so one had to expect change all the time.

The Minister proposed that the Committee agree to Mr Dyantyi’s proposal for a workshop. He said that they needed to come up with a clear new electoral strategy but they also needed to examine the Constitution, not to take away the right for independents to stand for election, but ever since that judgement had come to the fore, people seeing more things that needed to be corrected and people had seen all the challenges in the legislation, so Parliament had to address that. Parliament would be rushing to court every day if it did not attend to the challenges. Even before the ink had dried on the judgement on the Independent candidates, people were serving papers on the Department of Home Affairs and the IEC asking for other aspects of the election to change. Already one party was demanding change in 14 days or they would go to court.  He believed that the opportunity should be taken to address all challenges in the legislation.

Response by the IEC
Mr Mashinini thanked the Committee for the opportunity to make a presentation as the country embarked on the important journey to review the electoral systems in the country. He and his team had noted all the comments but it was not necessary to respond. He thanked everyone for their warm comments about the presentation but also for understanding the position of the IEC. He thanked the Minister and Deputy Minister for joining the IEC in the meeting and reminded everyone of the Concourt timeframe. He reiterated that the IEC stood behind the Portfolio Committee and would give all the technical advice the Committee needed.

Mr Mashinini was reminded that the choices about the electoral systems before the country were similar to the choices that President Xi Jinping of China had faced when he stated: “The colour of the cat’s eyes is not important; what is important is whether the cat is able to catch the mice.”  Choices about the electoral system should be evaluated according to whether the system would deliver the elections required in the country. He thanked his staff, CEO and the Portfolio Committee and offered the support of the IEC going forward.

The Chairperson thanked the IEC for the eye-opening presentation. The Committee appreciated the support given to the Committee by Mr Mashinini and his team. He stated that the Committee was not going to wait for the process to start and for the Executive to come to the Committee. The presentation by the IEC had been the start, as the Minister had said, of a long journey. It was not a simple matter and he agreed with Mr Dyantyi that the Committee needed other presentations. The Committee had to make sure that it took along all Members of Parliament on the journey so that when the Executive came to say what had to be done, Members of Parliament were on board.

The Chairperson added that it was not just a question of changing the law. There had to be a serious effort to have a conversation with the electorate. The people needed to understand changes to the regime. Their forebears had looked at creating a non-racial, non-sexist, multi-party. The system had to be a multi-party system and so Parliament had to allow for a proper conversation. Sometimes the Committee would invite the IEC to listen in and follow the conversations that it engaged in. He thanked everyone and excused the IEC, the Minister and the Deputy Minister.

Letter from the President on Remuneration of IEC Commissioners
The Chairperson informed the Committee that a letter from the President had been circulated to Members the previous week. The President was looking for concurrence regarding salary amendments for IEC Commissioners, as proposed in the letter.

Mr Chabane stated that his party (the ANC) concurred with the President’s letter.

Mr Roos stated that the DA supported the recommendation.

The Content Advisor informed Members that it was a retrospective recommendation and that something similar would come to the Committee for the current year.

Resolution
The Portfolio Committee on Home Affairs concurred with the recommendations of the President on the salaries of the IEC Commissioners. The motion was proposed by Mr Chabane and seconded by Mr Roos. The motion was unanimously adopted by the Committee.

Oversight Visit to Government Printing Works
The Chairperson presented the report on the Oversight Visit to Government Printing Works (GPW).

Mr Dyantyi agreed with the report.

Mr Roos stated that it was interesting that a report had come from that oversight meeting but there had been several other oversight visits, where there were no such reports, e.g. Lindela and the issue of the court cases. Were the reports also coming?

Mr Roos said that he did not know what the visit had been about. The recommendation stated that Nehawu’s views were heard but that was not in the minutes. He did not know if it was a commission of inquiry or fact finding, or what it was. The reason that the DA had not taken part was that the party had been advised that it could influence the process. The DA’s position remained the same. The DA had asked for the terms of the reference for the Hawks to satisfy itself that all allegations against Ms A. Fosi were being investigated. Secondly, the DA wanted the opportunity to cross-examine the report from the PSC. The report on the table did not change the DA’s position.

The Chairperson called for a seconder. He would take the DA’s input as an objection.

Mr Chabane seconded the report.

The Chairperson stated that the report would go to the National Assembly where there would be discussion on the matter. However, Mr Roos had raised a very important matter. The Committee had gone to Lindela and to the Department regarding what the judge in the Western Cape had requested Parliament to do. The reports had not been sent to the Committee and the latter had to be dealt with urgently.

Mr Mcgluwa suggested that a timeframe could be put on the other reports to be submitted for adoption by the Committee.

The Chairperson requested the Secretary to submit the reports at the next meeting.

Minutes
The Chairperson noted that the minutes had been sent to the Members to review.

04 February 2020: The minutes were adopted unanimously following an amendment by Mr Roos who stated that the Minister had committed to resolve the matters before the Refugee Appeal Board (RAB) within four years. That was an important commitment and the Minister should be kept to his promise so the minutes needed to reflect that.

26 Nov 2019:
Mr Roos stated that the minutes showed Committee had made a resolution six months previously to call the union in to discuss the re-opening of Home Affairs offices on Saturdays, but nothing had happened.

Mr Tshwaku advised the Chairperson that he would soon be moving to the Committee. He advised that the minutes needed to track actions decided upon by the Committee. When one noted that the Committee was looking at minutes of November the previous year, it raised the question of the purpose of having meetings. He suggested that the minutes should contain an action tracker that the Chairperson could go through to determine whether resolutions had been actioned. He stated that the Portfolio Committee on Public Works had implemented an action tracker and it was working well.

The Chairperson welcomed the advice and agreed that the Committee had resolved a number of things that had not been actioned. He requested the Committee Secretary to action the resolution, especially the one regarding the Saturday openings. In future, the agenda would be determined by the action tracker.

The minutes were adopted unanimously with no amendments.

18 February 2020: The minutes were adopted unanimously with an amendment: Resolution 6.1 – DA rejected the Bill.

03 March 2020: The minutes were adopted unanimously

10 March 2020: The minutes were adopted unanimously. Mr Roos stated that there had been no agreement on how to address the challenge with the refugees but he was overruled by the Chairperson.

07 May 2020: The minutes were adopted unanimously

11 May 2020: The minutes were adopted unanimously

19 May 2020: The minutes were adopted unanimously

29 May 2020: The minutes were adopted unanimously

02 June 2020:  The minutes were adopted unanimously

09 June 2020: The minutes were adopted unanimously

25 June 2020: The minutes were adopted unanimously

07 July 2020:  The minutes were adopted unanimously

Closing remarks
The Chairperson stated that the Border Management Authority Bill had been passed by Parliament and two days earlier the President had accepted it. It was now an Act. The Chairperson thanked everyone for the hard work that they had put into working on the legislation.

He reminded Members that the Budget Vote for Vote 5 was the following day and he hoped that all Members were ready for the Vote.

The Chairperson appreciated the constructive inputs of Members during the meeting that day. The
third quarter programme would be finalised by the Committee management. Management would also look at the resolutions that the Committee had taken. What was outstanding would form the basis of meetings in the third term.

The Chairperson greeted participants in the meeting.

The meeting was adjourned.