Electoral Amendment Bill: consideration of NCOP amendments; Department response to Members’ Queries, with Minister

Meeting report

Opening remarks

The Chairperson said that the Members were meeting on a critical and painful day, as it was the Chris Hani Day of Action. The meeting was to consider the proposed amendments to the Electoral Amendment Bill, from the National Council of Provinces (NCOP). The Committee has taken note of the issues that arose during the public hearings and deliberations. The Committee Members are also fully aware of the views of the various political parties.

He noted that the Constitutional Court deadline for this Bill is 10 December. Parliament had requested the Constitutional Court for this extension, as a result of the process that this Committee has to undertake, as well as the period that the NCOP needed to deliberate. He was pleased that the Committees were able to deal with the amendments within the time period, but if there are issues that will arise during the briefings and the deliberations, then the Committee will make a decision on how it will deal with those issues.

Briefing by the Independent Electoral Commission (IEC)

Mr Mosotho Moepya, Chairperson, IEC, said that there have been a lot of engagements since the IEC had last met with the Committee. The Chief Electoral Officer (CEO) will highlight the amendments that were made to the Bill, as the process continued in the Select Committee on Security and Justice.

Mr Sy Mamabolo, CEO, IEC, said that there were three key elements that were proposed and passed by the Select Committee on Security and Justice, that were related to signatures. The first element related to the signatures, was in terms of bringing parity between the treatment of independent candidates and unrepresented political parties. The scope of the requirement for the signature submissions was extended to include unrepresented political parties. In other words, the version of the Bill that was passed by the Committee excluded the requirement for unrepresented parties to also meet the signature requirement, but this was changed in the Select Committee on Security and Justice. So, due to the proposed amendments of the Select Committee, all parties that do not have representation in any legislative body will also be expected to meet the signature requirement. The logic is that, like independent candidates, unrepresented parties have no proven support. Whereas those that are in the legislature, have proven support, which is why they have representation in a legislative assembly.

The second element was that in subsequent elections where an independent candidate had received enough votes to participate in a legislative assembly, they will no longer be required to meet the signature requirement, in the same way that parties with representation do not have to meet the signature requirement. Again, that brings parity between political parties that are represented, and an independent candidate that is represented in a legislative assembly, that in subsequent elections they do not need to meet the signature requirement.

The third proposed amendment is that the 20% quantum would apply to the highest quota in the regions that the independent candidate or political party wishes to contest. For example, if one intends to participate in five regional elections out of the nine, then one does not necessarily need to meet the 20% signature threshold in all five regions. That requirement has proven to be a tall order. So, the proposition that was introduced and approved by the Select Committee is that, of all the regions that an independent candidate or political party would wish to contest, it should meet the threshold in the region where the quota is the highest. Once the threshold is met, then the independent candidate or political party would not need to meet the 20% threshold in all other regions. This is an endeavour to keep the participation requirement, but without making it too onerous to the extent that it may be a barrier to participation.

He added that a fourth element would relate to the event that an independent candidate or political party did not meet the 20% threshold of the highest region that it intended to contest in. 

He explained that the second area where changes were proposed, relates to the factor of consideration, when an independent candidate has won more than one seat. This was changed, such that a more accurate consideration would be to look at the proportion by which the independent candidate had won. The independent candidates would take the seat where they have the greatest electoral strength.

The third area relates to Schedule 1A. A few editorial changes were made, which was basically a clean-up. The most substantive change made in the Select Committee was on items 7 and 12, with related contextual changes to items 23 and 24. That relates to the forfeiture calculation, as it relates to regions and provinces. Reference is made to item 21 so that the forfeiture calculation is treated as a vacancy calculation. If this change is made to items 7 and 12 to Schedule 1A, then it would lead to consequential amendments to items 23 and 24.

The Chairperson asked Mr Mamabolo to provide more explanation on the vacancy calculation.

Mr Mamabolo explained that in the version that the Committee had approved, the application of Schedule 1A said that a forfeiture methodology would be used to deal with the resultant vacancy if an independent candidate won a regional seat and a provincial seat because the independent candidate can only take one of those seats, not both. The Select Committee made a proposition that a vacancy calculation should be used instead because it protects the seat that is already held. Unlike the forfeiture calculation, the vacancy calculation has protection for those who already hold a seat.

Briefing by the Parliamentary Legal Service

Ms Telana Halley-Starkey, Parliamentary Legal Advisor, Constitutional and Legal Services Office (CLSO), said that the IEC had articulated the amendments correctly. There is another amendment to the Bill that the Department of Home Affairs (DHA) would need to explain. CLSO assisted DHA in the drafting of this provision. This was done on DHA’s suggestion and its counsel's advice. DHA would be best placed to inform the Committee regarding the reasoning and unpacking of that portion of the amendment. Once that is done, then the CLSO can delve into the procedural aspects of including these amendments and then discuss the possibility of an extension application.

At this moment, CLSO cannot comment.

Briefing by the Department of Home Affairs

Dr Aaron Motsoaledi, Minister of Home Affairs, asked that the Report of the Select Committee on Security and Justice on the Electoral Amendment Bill be flighted on the screen because he wanted to indicate the clause that is in contention. It was a new clause that was added, as proposed by the NCOP.

He recalled that during the debate in the National Assembly, the DHA made it very clear that this Bill just answered the question about independent candidates but there has been a clamour from the public for broader electoral reforms. The DHA responded that the debate about broader electoral reforms would take place after the 2024 elections because electoral reforms would need so much time and there was not enough time in these 24 months. Electoral reforms could not be affected within 24 months. However, it seemed that people were not satisfied or they did not believe it or they were cynical about it. So, in order to satisfy this and to show that the DHA is actually serious, it must appear somewhere in the Bill. This is added as a new clause, which is clause 23. The Minister read through clause 23, that was based on the establishment of the Electoral Reform Consultation Panel.

Minister Motsoaledi pointed out that clause 23(2)(a) states that “The functions of the Panel are to independently investigate, consult on, report on and make non-binding recommendations in respect of potential reforms of the electoral system for the election of the National Assembly and the election of the provincial legislatures, in respect of the elections to be held after the 2024 elections.”  When this clause was presented, the word “non-binding” did not appear. Clause 23(2)(b) further states that Parliament will exercise its constitutional powers to determine the electoral system for the elections of the National Assembly and provincial legislatures, in respect of the elections to be held after the 2024 elections. He explained that this determination that “Parliament will exercise its constitutional powers” was taken from paragraph 15 of the Constitutional Court ruling. Parliament will exercise these powers on the basis of technical advice from the Electoral Reform Consultation Panel. The Electoral Reform Consultation Panel will not have decision-making powers, but it will make recommendations to Parliament. Parliament would then exercise its constitutional powers. For that reason, the DHA thought that the word “non-binding” would not be necessary, but it was insisted upon by the Parliamentary Legal Services. He understood what it meant legally, but he was worried that this may cause scepticism from the public. He felt that the use of the word “non-binding” is as if one is not committed to the process. He wanted the Committee to help resolve this issue.

Discussion

Mr K Pillay (ANC) appreciated the NCOP for the deliberations that they had in respect of the Electoral Amendment Bill. He supported the amendments in terms of signatures. This Committee was of the view that the IEC would remedy the issues with the signatures through the Electoral Act, and that is the reason why it was not part of the initial amendments that the Committee had sent to the National Assembly. He was happy that it was resolved because it was important to level the playing fields and treat all individuals and parties who want to contest in the same way.

He had a question of clarity in respect of the requirement of signatures in each region being the highest quota. He understood that an independent candidate or unrepresented political party would have to provide signatures if contesting for provincial legislature, as well as contesting for the National Assembly. He sought clarity whether this would still be required or if an independent candidate or unrepresented political party would only be required to have 20% of signatures once off, in terms of contesting for both the provincial legislature and the National Assembly.

He recalled that he had very clearly mentioned that there are provinces that are bigger in terms of population, for example, KwaZulu-Natal and Gauteng, and for that reason, the outcome should look at the highest proportion and not the highest number of votes. He was pleased with the submissions that proposed for the highest proportion. He supported the items that were brought forward by the NCOP.

He felt that it was important that the Electoral Reform Consultation Panel was addressed through the insertion of clause 23, following public participation and public comments. However, he felt that the terms of reference in the Bill might be unnecessary because it was too long to be added to the Bill. He thought that it would be efficient for the Bill to briefly mention the purpose and mandate of the Electoral Reform Consultation Panel, rather than go into the technicalities of the terms of reference.

He also felt that all of the issues that the NCOP has brought forward are items that have previously and extensively been consulted. There are no new items, but it was a matter to amend or make changes to existing things. He believed that the discussion around electoral reform and consultation has been done extensively through the public hearings. He did not see a need for it to go through further public consultation.

He supported all of the submissions, amendments and the report of the NCOP. He proposed that this Committee adopt this report to the National Assembly, so that it can finalise this Bill and also meet the Constitutional Court deadline, that is 10 December.

Mr A Roos (DA) felt that the signature requirement for both independent candidates and unrepresented political parties made sense, as it was something that was already proposed in this Committee. He did not understand why there was a parity regarding the signatures, but it was a different situation for independent candidates and political parties on the regional and national lists. One of the main motivations for the signatures was the worry that the ballots would be too long. He explained that allowing independent candidates to stand in every region, but not stand on the national list actually adds to the number of appearances on ballots across the country, which does not make sense. If the rationale is that there should be parity, then parity is needed in that regard as well.

He did not see how the report of the Electoral Reform Consultation Panel would be any different to the Ministerial Advisory Committee (MAC) report. It would appear that the Minister would then just choose whatever he wants to do, whether he would accept or reject the recommendations of that report. It seems to be a lot of expenditure. Clause 23 is certainly a new and different item in this Bill. It creates a committee by an act of Parliament. He was surprised that this proposal seemed to be fine and that it does not constitute a substantial change that would need permission from the National Assembly. He was concerned about this, because there may potentially be persons that do not want this legislation to go through as it is. If an opportunity is left for a person to oppose this, based on a process, then it would not be worth it. He strongly believed that the Committee should refer these changes to Parliament, and get approval for it. He felt that the Committee should follow due process to have a public participation process, again. Thereafter, the Committee can wrap up this matter and be sure that there is no gap left for anybody to challenge it on procedural grounds.

Ms L van der Merwe (IFP) agreed that the signature requirement that is extended to unrepresented political parties makes complete sense. The threshold remains at 20%, and it is always the IFP’s view that it should have been lower, at 10% or 15%. She said that the highest quota made sense.

On the Electoral Reform Consultation Panel, the first question that arose for her was how this panel would be different from the MAC that had previously advised the Minister. She would assume that quite a substantial budget would have to be put aside for the establishment of this panel, considering the time that its members would be allocated to do their work. She questioned how this panel would be different from the work that has previously been done by Motlanthe’s high-level panel report and the Van Zyl Slabbert report.

She agreed with Minister Motsoaledi, that there was a problem with the word “non-binding”. The use of the word “non-binding” makes it seem that the panel would be engaging in a process where the outcome had already been concluded. The word “non-binding” has a negative connotation that the recommendations of the panel would not be considered. She explained that she would opt for the word “non-binding” to be omitted because it goes without saying that the panel reports back to Parliament, and Parliament would then consider the proposals and take it through the parliamentary processes.

She noted that the section pertaining to the composition of the panel mentions that political parties and civil society would be given an opportunity to engage with the panel’s report, once it has done its work. She thought that this should make provision to include some of the civil society organisations that have been against this Bill because it has been said that not enough work has been done in terms of addressing electoral reform.

She agreed with Mr Roos’ comment, that this Committee should go back to the Constitutional Court to ask for an extension, and that the proposed amendments should be presented to the public for comment. This is to ensure that the Committee does justice to the process.

Ms A Khanyile (DA) agreed that the proposed amendments would need to go through public participation. The previous public participation was flawed. In some instances, it was found that members of the community were not even aware of the meeting, others did not have proper documentation, and some complained that the documents were not translated into the languages that they understood. She said that the Committee would have a problem if the proposed amendments were not taken back to the communities.

Ms M Modise (ANC) supported the omission of the word “non-binding” because it gave the impression that there would not be a commitment to the recommendations made by the panel.

She wanted to agree with taking the proposed amendments through public participation, but she was worried that the Committee did not have time. She did not agree that the Committee should request a further extension. She worried that if the Committee sought further extension, it would seem as if the Committee did not want the Bill to be finalised and that it did not support the inclusion of independent candidates in the upcoming elections. Therefore, she agreed with Mr Pillay’s proposal that the Committee should adopt the report as it is, and refer it to the National Assembly.

The Chairperson said that he wanted to capture the views that were expressed. He got a sense from the Members that the Committee should consider adopting the proposed amendments. The issues that were highlighted have been deliberated on in the Committee, in the NCOP and in consultation with the people and the stakeholders. He emphasised that the Committee had not gone through a flawed process, since the Bill has been brought to its attention, but he could see that there was a flaw in the public hearing. To that extent, the Committee and NCOP were able to deal with that and interact with the written public comments and oral submissions.

He noted that the Committee welcomed clause 23, on the Electoral Reform Consultation Panel. Clause 23 is an expression of the deliberations and the comments submitted before the Committee, that there was a need to take the opportunity to bring reform to the entire electoral system. This Committee affirmed to deal with the current electoral system, and create conditions for independent candidates to participate, as this was the directive of the Constitutional Court.

He said that the Minister could provide more explanation on the terms of reference of the Electoral Reform Consultation Panel, which might not be necessary to detail in the Bill.

Mr Moepya noted that the Minister had pointed out the word “non-binding” in clause 23, which may have implications. There was a similar concern in item 6, where there was a term relating to “provisionally” allocated regional seats, when in fact, with the changes that have been made, it is not provisional. He similarly suggested that the word “provisionally” be removed from item 6(d). He also referred to another small change, that paragraph 5(h), would become paragraph 5(i), because of an insertion that has been made.

He asked the CEO to respond to Mr Pillay’s question, in relation to the requirements for regions versus the requirement for provincial legislature.

Mr Mamabolo agreed that there was an editorial clean-up. The word “provisionally” will be removed from item 6(d), because it is a final allocation. In the same item 6(d), paragraph 5(h) would become paragraph 5(i).

He referred to Mr Pillay’s question regarding the signature requirement for regions and the signature requirement for a provincial legislature. He explained that an independent candidate or unrepresented political party would still need to meet the 20% signature requirement, based on the previous comparable quota. A regional election is part of the elections of one National Assembly. A provincial election is an independent election, that has its own set of participation requirements that must be met, and that is independent of the requirements for the elections of the National Assembly. The signatures for regions can be obtained from everywhere as long as the person is on the voters roll. The signatures for provincial legislature must be from the provincial segment of the voters roll.

Mr Moepya said that the CEO had correctly indicated that a provincial legislature is an election on its own, and that of the National Assembly is a different election. The two have different requirements. If an independent candidate contests in a provincial legislature, then he or she would need to meet the requirements of that election. The National Assembly is the country’s one constituency. Whereas with provincial legislatures, the country has nine different constituencies and each one of the constituencies is very different.

Minister Motsoaledi referred to Mr Roos’ comment that the Minister would accept or reject the recommendations of the Electoral Reform Consultation Panel report. He replied that it is not so, and if one read clause 23 carefully, (2)(b) clearly states that it is Parliament that would “exercise its constitutional powers to determine the electoral system for the elections of the National Assembly and provincial legislatures, in respect of the elections to be held after the 2024 elections.” Subsection 7, further states that “Upon receipt of the report contemplated in subsection (4), the Minister must within 30 days table the report in Parliament for its consideration and publish the report through electronic and any other means.”

In response to Ms van der Merwe’s question about how the Electoral Reform Consultation Panel would be different to the MAC, Motlanthe’s high-level panel report and the Van Zyl Slabbert report, he emphasised that there is a huge difference. He said that Motlanthe and Van Zyl Slabbert never mentioned the word “independence”, their reports were about political parties fighting in constituencies only. They never imagined that an independent candidate would be able to sit in Parliament, and may, in terms of the Constitution, find themselves being President if appointed in the National Assembly. This is completely different because it is based on the Constitutional Court ruling, which has added independent candidates into the frame. So, the Electoral Reform Consultation Panel would be working on completely new parameters, of looking at electoral reform with people called “independent candidates”. This is why subsection 8 explains that the panel would call for and receive written submissions from political parties, independent candidates, civil society organisations and any interested persons. This is a new era all together. The DHA believes that this panel would provide something different in comparison to other previous reports. The panel would also be different to the MAC, by virtue of the work that would be done. For instance, the MAC relied on a report written by the DHA, after the DHA had done research on 15 electoral systems. Whereas this panel would have to start its own research, four months after being appointed. The Electoral Reform Consultation Panel would be a complete game changer.

The Chairperson said that the Committee agreed that the word “non-binding” should be removed from clause 23.

The Committees are working in terms of the deadline of 10 December. The Bill reflects the spirit of the Constitutional Court directive, which is for the inclusion of independent candidates and their participation. He got a sense from all Members that the deliberations in the National Assembly and the NCOP has been satisfied.

He noted that Mr Pillay had formally moved for the adoption of the Report of the Select Committee on Security and Justice on the Electoral Amendment Bill. He asked if any Member seconded the adoption of the report.

Ms Halley-Starkey referred to the amendments proposed by Mr Moepya, on item 6(d) and the reference change from paragraph 5(h) to 5(i). She wanted to know whether these additional amendments that have been suggested by the IEC are connected to amendments that were suggested by the NCOP. She pointed out that the National Assembly Rule 307 (2)(b) states that the committee to which the Bill is referred “may not propose any amendment which is not strictly relevant either to the Council’s rejection of the Bill or to the amendments proposed by it”. So, in order for the Committee to adopt the amendments to item 6(d) and the reference change from paragraph 5(h) to 5(i), it would need to be connected to what was proposed in the NCOP. The Committee would need more detail on whether those amendments do connect to the amendments proposed by the NCOP.

Mr Moepya explained that the amendments were as a result of the changes that were made in the Select Committee on Security and Justice. The word “provisionally” in item 6 was necessary at the time, because of the forfeiture versus the vacancy. Once the forfeiture calculation was treated as vacancy calculation, the seats were no longer provisional but final. To leave the term as “provisionally allocated” might not be correct, and it might create doubt when certainty is needed. The reference change for paragraph 5(h) is just a clean-up and consequential. The IEC would do whatever is necessary to follow the legal process.

Mr Mamabolo reiterated that the word “provisionally” would be removed from item 6(d), and then there would be a reference change of paragraph 5(h), which would become paragraph 5(i). Those two changes are connected with the proficiency enhancements of the electoral system. It gives clarity to the seat calculation process.

Mr Pillay proposed that the Committee accept the changes, and adopt the amendments and the report.

Mr Roos asked for clarity on the two amendments so that the Committee is certain of what it is being asked to agree to.

The Chairperson asked Mr Mamabolo to flight the changes on the screen so that the Committee has clarity on what is being corrected in the amendments.

Mr Masego Sheburi, Deputy CEO: Electoral Operations, IEC, explained that the Committee approved a phrasing that only required signatures in respect of independent candidates. The proposal by the NCOP is to also require support shown, by way of signatures, from parties that are registered but are not represented in the National Assembly or provincial legislatures. Those parties would have to meet an average quota if they wish to contest all nine regions for the National Assembly.

Adv Suraya Williams, Principal State Law Advisor, Office of the Chief State Law Advisor (OCSLA), read through the changes made to the amendments as proposed by the IEC. She also pointed out where the word “non-binding” would be removed from clause 23. She said that the new clause, clause 23, would not form part of the principal Act. It would only form part of the Amendment Act, but it is not an amendment to the principal Act.

Mr Mamabolo explained that item 6(d) makes reference to “provisionally allocated” regional seats. Hence, the IEC proposed to remove the word “provisionally”, because those regional seats have already been finally allocated. It is a mistake that came with Schedule 1A from 1999 when it was passed. It is important for greater clarity and correct referencing in the schedule. The changes are not fundamental or material, but it brings greater clarity and correctness to the language of Schedule 1A.

Mr Pillay said that the changes made were clear and made perfect sense. He moved for the adoption for all of the changes.

Ms Modise seconded the adoption of the changes. She also seconded the adoption of the report.

Mr Roos asked that the Chairperson note the objection of the DA. He said that the two changes by the IEC were fine, but not the other amendments.

Adv Williams said that the OCSLA will proceed to redraft the document and submit the revised document to the Committee. The Parliamentary Legal Service would be best placed to advise the Committee of the procedure, moving forward.

Ms Halley-Starkey recalled a prior occasion when the CLSO had explained to the Committee the Constitutional Court judgement in the South African Veterinary Association versus the Speaker case. The judgement dealt with the Medicines and Related Substances Act. When the Medicines and Related Substances Act was first published, veterinarians were not included in the original Bill. Prior to going out for public participation, it was then suggested that veterinarians be included, as they would also dispense medicine in terms of the Medicines and Related Substances Act. However, that Bill was then never advertised.

She explained that a similar problem has happened here, where the regulations required parties to produce a thousand signatures to register, but now with this new amendment that had been incorporated, the new parties that are not represented in the National Assembly or provincial legislature will not only have to provide a thousand signatures for registration, but also the 20% of that region that they were contesting. This changes the dynamic of the Bill completely, because it is a material change to the Bill. And those people, particularly the unrepresented parties, have not had an opportunity to comment on this material change.

The CLSO has advised the Committee to advertise the amended Bill, purely because there have been significant and material changes made to it, that the public or a certain portion of the public, have not had an opportunity to comment on. This leads to a troubling situation because there are about 12 working days left until 10 December. It is therefore suggested that the Committee apply for an extension. CLSO has discussed the possibility of an extension with the IEC. The IEC indicated that within reason, they would not be opposed to an extension, because a lot of changes made to the Bill emanated from the NCOP, and the IEC themselves.

She reiterated that the Committee might need to request for an extension because it would be in contempt if it does not advertise the Bill.

The Chairperson said that it seems as if the Committee is now dealing with the decision to either request for an extension or not. He asked Ms Halley-Starkey if she ought to say that the public would need an opportunity to comment on the proposed amendments that emanated from the NCOP, instead of saying that the public has not had the opportunity to comment on the Bill. He asked her elaborate on the proposed amendments for which public comment is sought.

Ms Halley-Starkey clarified that the members of the public have had extensive public participation on this Bill. She intendent to point out that the public has not had the opportunity to engage on the new amendment. Following public participation, these new amendments were included in the NCOP, but there is a concern that the amendment regarding signatures is that material, that the public or a certain portion of the public had not had the opportunity to engage on. It would be remiss to not advertise the Bill again.

She explained that in terms of the procedure, there are no rules on how to properly engage with the public. However, there are guidelines that are set by the Doctors for Life judgement. The guidelines would highlight the nature and importance of the legislation, the intensity of the impact on the public, the time and expenses that it would take and also the urgency; while noting that there is a looming deadline. The CLSO would suggest that a simple advertisement would be sufficient, and a call for written public submissions would be sufficient. The CLSO also advise that the Committee not do so over the December period, because the Constitutional Court had previously questioned the advertising over the Christmas and holiday period.

Mr Pillay asked if there were any guidelines or a stipulated minimum period for the call for public submissions, because this may impact the decision that the Committee would make. The Committee should be cognisant that the Constitutional Court may not allow the Committee an extension. The Committee should be guided on how it would finalise this if it does not receive an extension. He felt that all of the items had extensive public participation, and the amendments came as a result of public submissions.

Mr Roos said that his understanding was that the Committee did not have a choice, because if it does not advertise the Bill then it would be in contempt of the Constitutional Court judgement.

Ms van der Merwe agreed with Mr Roos. The question that the Committee would have to ask is whether these amendments are substantial or not. The previous Bill did not contain the new clause on the Electoral Reform Consultation Panel. The amendments also require unrepresented parties to also obtain approximately 16 000 signatures. The amendments are substantial and this means that the public would have to be given an opportunity to comment. Public participation is premised on the belief that those who are affected by the decisions that the legislators make, should be involved in the decision-making process. She agreed that the Committee should seek an extension, and if it is granted, then the Committee could advertise the Bill for public comment on the amendments. The Committee should be guided on a feasible timeframe to conclude its work on this Bill because the amendments are substantial and must be commented on by the public.

Ms Modise agreed with the view that before the Committee makes a decision, it would first need guidance from the legal team on the substantive changes that might have been affected by the NCOP, in relation to the moralities of being able to adhere to the deadline of 10 December.

Mr Moepya said that he would comment on the IEC’s response to an extension being obtained. On reflection, he said that the material circumstances that were before the Constitutional Court had not changed. The technical aspects underpinning what was set in the court application and what the Committee is dealing with now truly remain constant and have not changed. The IEC accepts the challenges before the Committee. He pointed out that the Committee would have to look at what the Constitutional Court extension would mean for the work that would have to be done. The IEC was cautious to say that it would not be a problem, as there were no changes in the underpinning technical aspects. The IEC is of the view that there are going to be consequences, and it would have to see how best to manage those consequences, in the face of an application that is before the court.

The Chairperson said that in principle, the Committee affirmed that these are not new issues. Society’s call for electoral reform has been before the Committee and the NCOP. The Committee may not need more consultation on whether there would be a consideration of a new electoral system or not, because this resides with Parliament, as it was informed by the public engagements and public submissions. This was a central matter that was carried over the period of the deliberations.

Now that the Committee has adopted the report, it may need guidance from the legal team to resolve this process. There is a need to note that the Constitutional Court deadline which cannot be avoided is on 10 December. He emphasised that all of the issues have been interacted with by the stakeholders and have been considered by the Committee.

He fully agreed that the report should be referred to Parliament, to also allow the President enough time to interact with the report. If there are certain issues that the President might not agree with or might require Parliament to look further into, then the report will be referred back to the National Assembly. It will affect the programme of the IEC, in preparation for the election.

He said that there would be further engagements with the legal team, and the Committee will convene on Friday to consider the decision that will be made.

He thanked the Members for considering the report of the NCOP. He thanked the Minister, the IEC, the parliamentary legal advisor and the state law advisor for extensively contributing to this process. It has not been an easy process, but the issues have been dealt with collectively with the NCOP.

Briefing by the DHA on queries sent to the DHA by Members of the Committee

Mr Tommy Makhode, Director-General (DG), DHA, said that the DHA would respond to the request to deal with queries submitted by Members of Parliament (MPs) and members of the public. In the main, these queries are related to two branches, that is civic services and immigration services. The DHA received 91 queries from the Committee and it was able to address at least 70 of those queries. There are 21 queries that still need to be addressed. There is a lot of work that happens behind the scenes with immigration. In some instances, the team would have to conduct investigations which leads to some of the delays in responding to MPs.

Mr Yusuf Simons, Provincial Manager: Western Cape, DHA, presented the list of queries in the immigration branch. It was a list of 91 applications. 63 of the applications were temporary residence applications; 20 were appeal applications; 8 applications were from functional services, which include waiver applications, exemptions and proof of permanent residency. Out of the 91 applications, the DHA had finalised 71. He noted that five of the 20 outstanding applications do not have references, so the DHA are engaging with those clients to provide reference numbers.

He said that a copy of the progress report is sent every week to Mr Lereng Tsetsana in the DG’s office, as well as to the Committee Secretary, Mr Eddy Mathonsi.

In terms of permitting, the applications are resolved through different levels of quality assurance. For example, permanent residency has five levels of quality assurance that must take place, and there are three quality assurance levels for temporary residency. It takes a longer time to finalise the immigration queries, because it is not only one person that finalises any of those queries.

In late October, the DHA implemented a query management system. Immigration services has partnered with the DHA contact centre because that is the nodal point for all queries into the Department. There are more than 100 agents that deal with queries, and six agents are dedicated to only dealing with queries relating to immigration. All queries from the Chairperson, MPs, the Minister, the Public Protector et cetera, are then forwarded to the contact centre and prioritised. More officials were appointed to deal with the queries in the permitting environment because the majority of the queries are about permits.

The contact centre uses a case resolution management system. The moment a query is received it then sends a communication to the client to acknowledge receipt. After five days, it gives the client or the person that lodged the query an update. After 25 working days, the query is programmed in the case resolution management system, and a report is generated to the client about the progress.

The Chief Director in the office of the Deputy Director-General (DDG) is the overall coordinator of queries. Immigration management meetings are held on Tuesdays. The outstanding queries are a standing item at the management meetings.

Mr Simons added that the DHA has taken note of the concerns raised by the Members of the Committee, that the DHA has not been responding to queries. The DHA has therefore implemented the query management system, and dedicated staff to deal with queries. The DG has recently approved another nodal point that will deal with litigation cases and letters of demand from court, to deal with court matters timeously.

Mr Thomas Sigama, DDG: Civic Services, DHA, took the Committee through the queries that were received from MPs, in relation to civic services. He said that the civic services branch received 976 queries. The civic services branch managed to conclude 893 of those queries, and 43 are pending. The pending queries are applications that lack supporting documents or require additional information. There are 30 cases where clients have complained to MPs but no applications were lodged on the system.

There are 13 categories for the 976 queries. The highest number of queries received was for unabridged birth certificates, wherein 321 queries were received, of which 303 were concluded. The second category with the highest number of queries was for unabridged marriage certificates, wherein 197 queries were received, and of which 188 were concluded. The third category with the highest number of queries was for passports, wherein 157 queries were received, and of which 154 were concluded.

The categories where the civic services branch encounters the least challenges are on death registration. This is solely because the DHA had lodged overtime, wherein it was able to rearrange its storage and fix the index system which stores all of the death registrations, this has made it easier to conclude these queries.

There are plans underway for the DHA to digitise all of its paper records, to modify the system without any difficulty.

The Chairperson asked Mr Sigama to clarify whether he had said that the DHA had received queries from MPs that relate to queries from the public or whether the DHA had received complaints from MPs to resolve their own problems.

Mr Sigama replied that the DHA had responded to the queries that were directly from Mr Lereng Tsetsana in the DG’s office, in Cape Town.

The Chairperson said that he wanted to clarify that because it must not be misinterpreted that the DHA is receiving complaints from the MPs about their own problems. The DHA received queries from MPs that are informed by their constituencies.

Minister Motsoaledi said that he wanted the Members to be aware of some important facts before they asked questions. He noted that Mr Sigama had informed the Committee of the 976 queries in the civil services branch, and a breakdown of how the queries have been resolved. He wanted to bring to the attention of the Committee that the backlog of civic matters, dealing with issues of unabridged birth certificates, unabridged marriage certificates and passports et cetera, actually stretches back from 2002, for the past 20 years. There are more than 400 000 issues in the backlog.

The biggest issue is the unabridged birth certificates, which are needed most of the time because the DHA had previously issued abridged birth certificates. But from 2013, the DHA no longer issued abridged birth certificates, but the DHA is still dealing with a backlog from 2013 backward. The DHA has a special programme to clear this backlog and if it goes according to plan, then it is believed that the backlog will be finalised by March 2023. This means that there may still be queries coming in before March, on the very same thing that is being resolved. It is only that people want the queries to be resolved as quickly as possible.

Although the DHA stopped issuing abridged birth certificates from 2013, in more than 60% or two-thirds of the time it is not possible for the DHA to issue complete, unabridged birth certificates due to the social problems in communities. Precisely with teenage pregnancies, where the mother is not able to provide the details of the father of the child, as an unabridged birth certificate contains the details of both the father and mother. Minister Motsoaledi explained that the DHA, theoretically, no longer issues abridged birth certificates, but the birth certificates end up being abridged because the details of the father are not known, because of social problems.

Secondly, he explained that the issues take time because the records are not digitised. After the backlog is cleared in March 2023, the incoming queries would be finalised much faster, because the records would be digitised.

Minister Motsoaledi requested for the Committee to give the DHA an opportunity to come and present the plan. He explained that this was important, because some queries are sent by MPs that are informed by their constituencies, but there are members of society who for one reason or another, have no access to MPs. It is not to say that MPs are not accessible, but some members of society do not have access to MPs or Ministers. He also received queries from other Ministers in Cabinet who are approached by people. It was important for the Members to know that as the DHA is forced to rush to respond to queries, in respect of MPs or Ministers, there are members of the public who are waiting.

All of these things will abate once the DHA has digitised its records. For instance, amongst the 10 000 unemployed graduates that the DHA are hiring, 200 of them are going to assist the DHA to clear the backlog of unabridged birth certificates et cetera. After the digitisation, the DHA will no longer need them, because the permanent staff would be able to cope, as the records would be available.

Discussion

Mr Pillay appreciated the progress and the intervention that has been made by the DHA. He said that one of the underlying factors that are a concern is that it cannot be that it takes MPs to raise queries of outstanding matters for it to receive attention. There are ordinary citizens who face these challenges daily and for lengthy periods, who do not find the means to escalate these matters to a Member of the Committee. The DHA should be able to expedite all of the matters raised and provide this service for all citizens of the country. It also cannot be, that a DG or DDG would respond almost immediately to correspondence or emails, but when the matters are referred to the relevant persons then there is no response. He asked the DHA what disciplinary measures it had in place for those officials who fail to respond and resolve queries timeously because it clearly impacts performance management. He said that nothing was more frustrating than having sent three emails and not getting a response.

Mr Roos said that whenever the Committee had such meetings it was always made to sound as if things are going well, but if it was so wonderful then the Members would not be receiving so many calls and emails every day. These are issues that are long overdue. He asked whether the Service Delivery Charter was still applicable at DHA because one does not see it being enacted. He said that the Service Delivery Charter speaks of transparency. A member of the public should be able to see how far their application is processed in plain English. The Service Delivery Charter speaks of a language that is understandable, not tech speak. The DHA needs to ensure that the Service Delivery Charter is applied at their front office, over the telephone and through emails.

He said that he had three urgent cases that were not on the spreadsheet. He was not sure if there was a special process to get the cases on a spreadsheet. He reiterated that there should be more transparency at DHA so that people could get proper feedback on their applications.

Ms van der Merwe appreciated Mr Lereng Tsetsana in the DG’s office for always being available when responding to queries. She was aware that the number of queries was tremendous. However, she concurred with Mr Pillay, that as soon as Mr Tsetsana referred these queries to other colleagues then there was no response. She also appreciated the DG that normally responds very quickly and would always be willing to assist. She was concerned that there was a wider problem within the DHA, where no one answers the telephone and it is a struggle to get through to the call centre. Some members of the public cannot refer their queries to MPs, and it is a problem when trying to resolve some of their issues.

She asked how long it took for spousal visas and permanent residency visas to normally be resolved. She explained that someone had written to her to follow up on the status of his wife’s application for permanent residency, because the application had been submitted more than six years ago, and since then they had only received one phone call. In this case, the lady has been married to her husband for 13 years and they have two children; she has been waiting for her paperwork to be finalised for more than six years. She said that the DHA is not accountable to the people that they are meant to serve, and it is people’s lives who are affected.

She said that she had recently been approached by Konrad-Adenauer-Stiftung that has been in South Africa for many years doing development and community upliftment programmes. The new Head of the Foundation Office was meant to come to South Africa from Germany eight months ago, but he was unable to get his work permit.

She also had a recent case of a young man who applied for a passport renewal in June, because he needed to go to work in October, but the payment had not been processed. He had subsequently almost lost his job, because he could not fly out even though he had timeously applied for a renewal.

She asked how frequently the DHA could not issue identity documents (IDs) or passports because of IT glitches that do not link the payment to the application.

She understood that the DHA did not have the funds, but the DHA should consider moving towards some type of platform to provide better service to its clients because the current call centre is not working and phoning offices does not help.

Ms Khanyile said that she also appreciated the work done by Mr Lereng Tsetsana, as he was seconded by the Minister after the Members complained that they were not getting any assistance. It appeared that Mr Tsetsana’s emails would be ignored when he forwarded the queries to other colleagues.

She said that Mr Pillay had covered her question, in terms of the disciplinary measures that are in place for officials that are not doing their job. The Members find themselves doing work that is meant to be done by officials in the local offices. The members of the public seem to be ignored when they go to the local offices.

She explained that she submitted a query three weeks ago about a case of a duplicated ID number, and she received a response within a week. She questioned why it took the DHA three years to give the client feedback on her ID, when they were able to respond to her within a week.

She felt that the DHA was not realistic when informing members of the public that they would be issued an unabridged birth certificate within eight weeks of the application because some people wait for more than three years. She said that it was even more heart-breaking that there are people from the communities that do not know that they can approach MPs and find their details on the Parliament website.

She was disappointed when working on a case where a lady had dual citizenship, in South Africa and Hungary. The client applied for a South African passport in July as she planned to come home and spend Christmas with her family. The client's family approached her in November to try and get this matter resolved. The DHA had all the documentation and confirmed that she had dual citizenship, but one of the officials said that the citizenship lapsed. About three days ago another response was received to say that the DHA was busy processing the passport. She explained that there was a level of confusion within the DHA, and confusing responses.

She said that she submitted 122 cases relating to adoptions that had court orders. She understood that the DHA did not want them to submit queries that came from a third party, because third parties got paid to do that job. But a lawyer had sent her a forwarded email, and it was clear that she was trying to get a hold of the Department to be able to process these court orders from 2019 and no one was responding to her. These 122 children have not been properly documented, simply because the Department has not processed these court orders. She questioned why the Department took four years to register these children that were adopted. If the Department does not do what it is supposed to do timeously, then it delayed these children a chance to start a new life with their new families.

She felt that the officials at the local and head office should be realistic about the turnaround time when doing their job.

Ms Modise appreciated the progress report that largely emanated from the queries that have been lodged by the Members of this Committee. It was worrisome that ordinary members of the public might not find the means to forward their queries on their applications, and the challenges that they face with the DHA are not attended to on time. Her main concern was for those community members who relied on remote DHA offices that are far away. It is frustrating when there are no responses, or that it takes years to get feedback and issues never seem to get resolved.

She asked if there was some sort of system in place that alerted clients when their applications lacked supporting documents. Overall, she noted that the Members of the Committee are all aware that the members of the public are frustrated because of the delays in the DHA and the lack of response or challenges with their applications.

Mr Makhode acknowledged that the DHA had previously not had systems to monitor some of the issues that have been raised. He was pleased to report that the DHA now has personnel that are specifically assigned to deal with queries at immigration services and at the civic services branch. The DHA recently added additional capacity at immigration services. The DHA now also has systems in place to deal with follow-up on queries and to track the queries, whether this is from Parliament or any other sector of society.

He noted that Mr Roos had brought up the issue of transparency. He explained that while the DHA would want to be transparent, in terms of providing information to MPs, it is also constrained by the fact there is a Protection of Personal Information (POPI) Act that favours the applicant more than the third party who might be enquiring about information. The DHA has to be mindful of this when providing information to MPs. In the main, the applicant takes preference, in terms of the DHA informing the applicant about the outcome.

For some applications that are made, for other visas, the applicant is able to track the status of the application online. The DHA had previously indicated that there was a backlog with permitting, but a plan has been developed and adhered to, this includes the additional capacity. The DHA is making very good progress in terms of tracking all those applications. The DHA does take disciplinary action in instances when performance is below par.

On the issues raised by Ms van der Merwe, he replied that if there were instances where she has not been deriving any response, then she should forward it and the matter will be referred to the Department of International Relations and Cooperation (DIRCO), where a representative from the DHA may be able to finalise some of those issues.

The DHA has taken note of the concerns raised about its call centre. The DHA does have plans that will look into how it can revamp the activities of the call centre. At the moment, the DHA call centre is congested because it is serving a huge population. The population of the country is almost 60 million, but the number of officials in DHA has remained stagnant for a number of years.

In response to Ms Khanyile, he replied that the adoption court orders are a matter that needs to be finalised, in the main, with the Department of Social Development. He said that Mr Sigama has received the cases that Ms Khanyile had referred to. The DHA has had instances where a person would indicate that they are intending to adopt a child, to only find that that child has already been adopted by another family. The DHA should be very cautious because the interest of the child should always be protected.

Mr Simons acknowledged that the DHA did receive a lot of queries via email, WhatsApp messages and phone calls et cetera. About three months ago, the DHA had to focus its resources on the investment-related applications or visas, because there have been a lot of enquiries about economic growth. The DHA had its resources focus on the backlog of investment applications for visas, and the team has completed that backlog. The team then had to focus on the e-visa backlog that was accruing over the last year. The DHA also focused on the foreign missions, because a lot of the important applications were economic-related, to ensure that businesses get skills into the country. The DHA also has a focus in its Annual Performance Plan (APP) target, which relates to business relabusiness-related residency and temporary residence, critical skills and general work.

The majority of the backlog, about 70%, is in the category of “spouse and relative”, and this is where the DHA receives most of its queries. Most of these applications have completed the adjudication level, and the bottlenecking is more with the assistant director level, director and chief director level. The DHA has brought in assistance from the provinces, as there are some provincial managers assisting on the chief director level.

The DHA has concluded 16 interviews for additional adjudicators last week Thursday. The job profile for adjudicators has changed so that it requires a legal qualification, because this work is in a highly regulated environment, in terms of the Immigration and Refugees Act. The appointments of these adjudicators will assist the DHA to bring the capacity on board and to deal with the backlogs. Once the DHA has dealt with the backlogs then the queries will subside.

He explained that in terms of the Department of Public Service and Administration (DPSA), if the DHA does not respond to a query within 25 working days, it would have to respond to the applicant and indicate the reason for the delay, as well as the expected outcome.

Mr Sigama referred to the question about the payments received for passports. He said that from 1 November the Department announced the new tariffs, and in this process, there were changes in terms of the types of passports that the DHA issue. During this process, the DHA received some queries from clients wherein some of the payments that were affected prior to the new tariffs had to be looked into. This created a bit of a problem, but DHA has technicians that are currently resolving this.

He referred to Ms Khanyile’s question about why it took time to resolve issues of duplicates. He explained that there are two types of duplications. One of the duplications is when a person has got more than one ID number that is easier to detect. In these instances, the person would be directed to use the latest ID number received. The second type of duplication that is often experienced are those persons who share an ID number, in one way or the other. In such instances, the DHA would have to investigate who is the rightful owner of that particular ID number. This often experiences delays, because one client might cooperate but not the other. The DHA would write to the persons who share an ID number and request them to present themselves in one of the offices, so that the cases can be resolved.

The DHA does have a process in place to deal with citizenship issues. The applicants who live abroad submit their applications on a manual basis, but when it reaches South Africa, the DHA conducts a status determination. At times, the DHA would find that a person submitted an application to renounce their citizenship. The system would indicate whether the person retained or applied to renounce the citizenship. He said that as the DHA modernise, it would have to ensure that the foreign missions gain access to one of the systems so that they can access basic information to respond to information submitted by clients that are abroad.

He said that there were two processes that the DHA follows when it detects that applications do not have supporting documents. He explained that when a case is lodged against the national population register, then a message is normally entered into the system and this is followed by a letter. As and when the client enquires through the contact centre, then the contact centre will be able to see what documents are lacking or what is expected from the client. The second cohort of these challenges are for those applications that were captured through live capture, where clients have either applied for passports or smart ID cards. Fortunately, these applications are automated so there is no need for the DHA to write letters. Immediately when the system detects that there is something missing in the value chain, it triggers an SMS to the client informing the client of the documents required. The DHA are moving towards this process to ensure that it transfers all of the applications towards live-capture.

Concluding remarks by the Minister

Minister Motsoaledi reiterated his request for the Committee to allow the DHA to come and present its plan to address the backlog. This was very important as he wanted the Members to know that the DHA was not ignoring them or the members of the public. The DHA is not insensitive to the needs of the public, in terms of dealing with these matters.

He accepted the criticism about the call centre. The DHA will look into this because he was not happy that people were complaining about the call centre when it is the only available resource to many members of the public. Many members of the public do not have access to refer their queries to MPs and Ministers.

He advised the Members that when they dealt with officials from DHA, that they should try to identify the names of the officials so that the complaints are not generalised. He said that the members of the public should also try to do so, although it may be tough. The MPs have the authority to demand the name and the location of the office of the official who has served them. The aim is not only to discipline officials but to educate them, because some officials may respond incorrectly due to a lack of knowledge.

He clarified that DHA did not deal with adoptions. Adoptions are matters to do with the Department of Social Development, and the court matters are with the Department of Justice and Constitutional Development. Once the court has given an order, the DHA gives identity, in terms of what the court has ruled. One of the weaknesses is the lack of electronic or automatic communication between the DHA and the courts. The DHA still relies on members of the public coming in with documents from the courts. He explained that once a court order is submitted to DHA then it ought to be implemented. It is a grievous fault for any office of Home Affairs to not implement this.

Chairperson’s comments.

The Chairperson thanked the Minister, the DG and his team. He thanked the Members for bringing this item before the Committee, so that they were able to interact on behalf of the members of the public and other stakeholders. This was an important interaction.

He recalled that when the Committee had conducted public hearings on the Electoral Amendment Bill, it did this closer to the Home Affairs office. Members of the public have raised issues about DHA. He felt that public representatives in all spheres should carry the responsibility of assisting the Department. He appreciated the officials that assisted and responded to the complaints of MPs and members of the public.

He said that the DHA should inform the applicants whether their applications have been accepted or rejected based on the proper process and procedures. He fully agreed that information is confidential and should not be given to third parties, but there should at least be a response to the client.

He felt that the Members have collectively understood some of the difficulties that the DHA is faced with, but acknowledged that there is a plan to improve the service that DHA offers.

He accepted the Minister’s request for the DHA to brief the Committee on its plan to address the backlog because it will also assist the public to understand what the DHA is doing to resolve their issues.

Closing remarks

The Chairperson thanked the Members for having dealt with the two items on the agenda, that is the NCOP’s proposed amendments to the Electoral Amendment Bill, as well as the briefing on queries sent to the DHA by Members of the Committee.

The meeting was adjourned.