Electoral Act, South African Schools Act, Lotteries Act amendment proposals

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
18 May 2007
ELECTORAL ACT AMENDMENT PROPOSAL: FURTHER DISCUSSION; SOUTH AFRICAN SCHOOLS ACT AMENDMENT PROPOSAL; LOTTERIES ACT AMENDMENT PROPOSAL: DISCUSSION

Chairperson: Ms P Mentor (ANC)

Relevant Documents:
Submission of Legislative Proposal: South African Schools Act Amendment Bill
Legislative Proposal to amend the Electoral Act (73 of 1998): 23 February 2007 presentation
Background to the Legislative Proposal to amend the Electoral Act (73 of 1998): 18 May 2007 (please email [email protected])
Relevant Portion of the Electoral Act (73 of 1998)
Lotteries Act Amendment Bill
Committee: Private Members Legislative Proposals and Special Petitions: List of Proposed Bills 2006 (document awaited)

Audio Recording of the Meeting

SUMMARY
Mr Labuschagne submitted a proposal to amend the Lotteries Act. He tabled a copy of the proposed Bill and explained that the aim was to ensure the continuous functioning of distribution agencies, to improve flexibility within the distribution agencies, and to ensure greater certainty in grant allocations. He noted that this proposal had pre-dated the current difficulties and was not intended as a reaction to them. The Committee Chairperson explained the procedure to him, noted that the Committee would be in contact with other relevant committees and would check whether the proposal had been handed to the Office of the Speaker. The Committee asked Mr Labuschagne to submit the Act and further research, including that into financial implications. The matter would be discussed again the following Friday.

Mr G Morgan had previously submitted a proposal to amend the Electoral Act. He expanded upon his proposal and tabled a draft Bill. The aim was to prohibit government advertising during election periods, with certain exceptions. If implemented it would significantly contribute to levelling the playing fields for political parties during elections, would ensure that the line between party and state was not blurred, and that state resources would not be used to promote any particular governing party. He stressed that the manner in which he had drafted the Bill meant that there were few changes to the Act as the matter of enabling clauses and penalties were already covered in principle. He believed that this matter was one of national importance, although it had emanated from the Western Cape’s last elections. Members agreed that the issues were important, and indicated that they would like to receive input also from the Department of Home Affairs, the Independent Electoral Commission and the Government Communication and Information Services, as well as the State Legal Advisor. These would be asked to attend the next meeting on Friday 25 May, when the matter would be further debated.

Mr G Boinamo had submitted a proposal in July 2006 to amend the South African Schools Act, but this had not been accompanied by a letter from the Speaker. Mr Boinamo indicated that the proposal aimed to ensure that South Africa provided quality education to all children. He noted that although the right to basic education was enshrined in the Constitution, this was not properly defined. He proposed that the scope,
content and meaning of basic education must be defined within the framework of availability, accessibility, acceptability and adaptability. Furthermore he proposed that it must be obligatory for the State to investigate why a learner was not attending school. Members noted that the proposal did not follow the rules of parliament and there were several issues raised which would need to be separated out from what he intended to include in a Bill. It was suggested to Mr Boinamo that he must re-draft the proposal and present it again at the next meeting of the Committee.

MINUTES
Lotteries Act Amendment Bill (the Bill): Proposal by Mr L Labuschagne
Mr L Labuschagne (DA) submitted his proposal for amendment to the Lotteries Act. He said last year there had been the unfortunate situation where the distribution agencies for the lottery were not appointed for five or six months and there was great confusion, resulting in inability to pay out. The accountants’ mandate fell away at the end of March and new ones were unable to be appointed because there were no distribution agencies. Charities, many of whom already had funds approved, could not access their funds. After discussion with the National Lotteries Board, it was discovered that there was no statutory obligation to finalise approval of payments within set time frames.

Mr Labuschagne said that his proposal tried to ensure:
- continuous functioning of the distribution agencies. -
- Greater flexibility within the distribution agencies, and ensure that they had the necessary capacity
- greater certainty in grant allocations.

The proposal specified that a distribution agency should be constituted for a period of five years and that a new agency should assume office not later than one day after the previous agency’s mandate had expired.
Nomination for the agency appointees must be made not less than one year prior to the expiry date. In the past nominations had been too late, and hence National Intelligence Agency were not able to complete the security and other checks and clearances in time.

To improve flexibility and capacity it was proposed to allow that the distribution agencies be increased to between six and ten. It was noted that members of the agencies worked part-time. He also proposed an increase of between four to ten members of the distribution agencies for miscellaneous purposes, because the ad hoc distribution agencies were usually appointed for shorter periods.

Mr Labuschagne then proposed that an applicant whose application was successful should get the money within two months. Red Cross had experienced severe delays last year with the result that they could not distribute to needy children. If there were no fixed time frames there would be cases where applicants might have to apply a year in advance because of the lack of capacity. They had not been aware whether funding had been allocated by the time their financial statements require that they account for it. This should assist the government to avoid the highly embarrassing and regrettable situation experienced over the last period.

The Chairperson thanked Mr Labuschagne and explained that the Committee normally called a proposer to make a presentation before the Committee, as he had just done, but may need to call him again. This Committee would contact other committees of Parliament whose work could have a bearing on the proposed bill, and also relevant government departments or agencies that were affected by the proposed bill. The Speaker’s Office should do vetting on the committee’s behalf, including checking that there was no duplication anywhere else. She did not know whether this proposal had been handed to the Speaker’s Office or whether the necessary vetting had taken place.

Mr Labuschagne thanked the Chairperson for her advice as it was the first time he had introduced something like this. He stressed that this proposal had not been the result of the current upset about the appointment. .

Ms Mentor replied that the Committee would correspond with Mr Labuschagne and would advise him of further requirements. The verification process was the responsibility of the Speaker’s Office.

Discussion
The Chairperson called for preliminary remarks from the Committee, but advised that there would not be in-depth engagement at this stage as they needed to engage with other stakeholders.

Mr S Mshudulu (ANC) asked that at the second phase of engagement Mr Labuschagne should furnish the Committee with the Act and his research on what was currently happening. He agreed that if there were loopholes in the Act they must be tightened. Oversight was important, and more information must be obtained from the relevant departments.

Ms I Mars (IFP) felt that there was nothing much the Committee could do until all the necessary documentation was available.

Ms Mentor clarified that the Rules of Parliament put the onus on the proposing Member to furnish information. She would be writing to the Department, but in terms of the Rules Mr Labuschagne should provide further information, including the financial implications suggested by an increase in the appointees.

Mr Labuschagne responded that his proposal was formulated and handed in last year; long before the current situation arose. He noted that he had had an informal chat with the Committee at the time he handed it in with regard to the Department getting a copy of the proposal.

Ms Mentor stated that the Committee would discuss the matter the following Friday. She requested Mr Labuschagne to rearrange his schedule to give the committee space to deal with this matter on that date as the Speaker was insisting upon meeting deadlines.

Mr Mshudulu also stressed the urgency of the matter, stating that this was an ideal opportunity for Mr Labuschagne to deal with the matter.

Electoral Act Amendment : Proposal by Mr G Morgan
Mr G Morgan MP (DA) appreciated and agreed with the benefits of coming before the Committee on more than one occasion. He noted that when he had appeared previously the Committee had made three suggestions, and he had now included those. These suggestions were: to give some illustrative examples, particularly of regulations from developing world countries, and to put forward a relevant portion of the wording.

Mr Morgan thanked the Chair for the opportunity to discuss the proposal further. He reminded the Committee that it was concerned with government advertising during election periods. He stated again, in brief, the background to the proposal.

On 29 March 2004, two weeks before the 14 April election date, the Democratic Alliance (DA) in the Western Cape launched interdict proceedings against the Premier of the Western Cape, and two other parties to halt what it argued were several cases of abuse of taxpayers money for electioneering purposes. The parties had settled the matter out of court, but all agreed that the issue would receive attention after the 2004 elections, and agree on what constitutes appropriate action during election campaigns. They undertook to debate and discuss, in the appropriate parliamentary and legislative forums, the issue of good democratic practice for political parties, and if necessary, to decide upon further legislative, administrative or other measures to address the issue.”

Although this undertaking pertained to parties in the Western Cape, Mr Morgan decided to take the issue up on a national level. He believed this was a subject that should be debated in all legislatures, and that it was the right time to do so. He had asked the Speaker of the National Assembly and the Speakers and Chairpersons in all nine provincial legislatures to convene ad hoc Committees. The matter had been put on the order papers. Unfortunately there were no actions or resolutions that followed from the debate in the Western Cape. On 24 May the Acting Speaker of the National Assembly advised that his request for a committee on this issue could not be granted, as the matter was not urgent. She had suggested other courses of action, and so he had decided to draft a Legislative Proposal on the Prohibition of Government Advertising, which was submitted to the Speaker on 7 September 2005, in accordance with Section 235 of the National Assembly rules. The proposal was subsequently submitted to the committee for consideration.

Mr Morgan elaborated on the provisions in place to regulate government advertising during election times.
In the period leading p to the 1999 national and provincial elections, media expert, Mr Raymond Louw, who was a member of the Communications Task Group that set up the Government Communication and Information System (GCIS), established election period regulations. According to the handbook, Cabinet decided on a possible “framework to be formulated to regulate against the dissemination of government information during election periods in a way that is to the advantage of one political party and to the disadvantage of others”. These regulations relied essentially on self-regulation by government communicators. Mr Morgan believed in practice that these regulations had neither been rigorously enforced, nor were they entirely desirable. While it was obvious that certain functions of government communications must continue, irrespective of whether it was election time or not (which were outlined as exclusions in his legislative proposals), the current regulations argued only that government communicators “should continue exercising their responsibilities to articulate, promote and defend policies, programmes and actions of the government”. Mr Morgan argued that this created a grey area that could undermine the spirit of the regulations. He contended that the political party running a department or municipality, and not the Government Communicators, had the task of promoting and defending the policies of government.

In his opinion the regulations were not strong enough and he therefore proposed that a prohibition on government advertising be included in the Electoral Act, which already included extensive provisions in relation to matters such as impersonation, undue influence and similar matters around elections.

On 20 September 2005 Mr Morgan wrote to the Chief Executive Officer of the GCIS, informing him of his submission of the Legislative Proposal, and asking whether he would consider supporting it. Mr Morgan also drew his attention to cases of government advertising that he believed had benefited the ruling party during the 2004 elections, and therefore did not conform to the guidelines of the GCIS. The CEO had replied that GCIS would be guided by the Cabinet.

Mr Morgan summarised the types of government advertising that he believed could be considered election advertising that could promote or oppose a particular political party. These were:
- advertising containing information that specifically promoted or opposed a candidate or political party;
- advertising specifically targeted to an electoral district in which an election was being conducted;
- advertising specifically designed to coincide with a campaign period;
- a material increase in the normal volume of advertising, either generally or in relation to an electoral
district, during a campaign period.

Mr Morgan said that he would like such advertising to be prohibited from the day that an election was announced to the day on which the final result was determined. He stressed that he was not speaking of political, but of government advertising from any sphere of government.

As an example, during the 2004 national and provincial election campaign period, national departments took part in the “Ten Years of Democracy Campaign” and made extensive use of advertising. It emerged that the Minister in the Office of the President had invited Ministries to submit budgets for the Ten Years of Democracy celebrations. While celebrating ten years of democracy was a worthy cause, he argued that starting this campaign during the election campaign period had provided a significant advantage to the ruling party.

Mr Morgan gave an example of the type of advertising that was used during that campaign. The Department of Public Works had paid for an advertorial in a Sunday Times newspaper supplement at a cost of R127 000. Mr Morgan believed that it was the job of the ANC to inform the electorate of its successes in the area of infrastructure development, but not the Department. Here the ruling party’s campaign was supported at the expense of the taxpayer, as any reasonable voter would know that an ANC Minister had been running the department and could take credit for its successes.

That was only one example. The total expenditure on that particular campaign was not easily dismissed. The Department of Defence spent R9,1 million, the Department of Education spent R8,7 million and the Department of Health sent R2 million on publications and adverts relating to the Ten Years of Democracy Campaign.

His argument was that if it was considered necessary to highlight the Ten Years of Democracy then this should have been done outside of an election period.

Mr Morgan gave further examples of government and municipal advertising during election periods. While they appeared to be quite tame they were nevertheless delivering a message, during an election period, and using taxpayers money to support the incumbent party.

Mr Morgan therefore summarised that his proposal intended to prohibit government (GCIS) advertising, with limited exceptions, from the date on which an election was called to the date on which the result of the election was determined. His proposal provided for penalties for offences against this prohibition. It would prevent any governing party receiving an unfair advantage through the use of government advertising, and would further promote multi-party democracy.

Mr Morgan tabled hard copies of the relevant portion of the Electoral Act (73 of 1998).

Mr Morgan then tabled the full details of his proposal. The purpose set out the intention to amend the Electoral Act 73 of 1998. He proposed to insert a new section entitled “Prohibition of Government Advertising” under Part 5. He proposed that Section 97 be amended to include the new prohibition as an offence. Section 98(b) must be amended to stipulate the penalty carried by the offence. The short title must be amended appropriately.

Mr Morgan explained that Section 5.5 already included prohibitions. His proposal to insert new prohibitions would tie in with the existing penalty clauses, so that there was no complex mechanism.

Mr Morgan then explained his proposal in more detail. He tabled the intended wording. This specified that the prohibitions would apply from the date on which an election is called to the date the result of the election is determined and declared in terms of section 57. He had included definitions of government and advertising, which was widely stated and included written, oral and electronic material that was financed by, and directly under the control of government. Mr Morgan acknowledged that there was no way government could cease to communicate. However, all advertising save for that relating to community health and welfare, safety and environmental hazards, emergency measures, policies or legislation requiring public comment or commercial or information advertising would be suspended. Obviously the public would still be able to access information on such matters as how to get government services. Section 97 would include these prohibitions as an offence and Section 98 would stipulate a penalty for breach of a fine or imprisonment for a period not exceeding five years. The legislation he proposed would be called the Electoral Amendment Act, 2005, and would come into operation on a date to be determined by the President by proclamation in the Gazette.

In reply to a question from the Chair, Mr Morgan responded that the Electoral Court would be arbiter for prohibitions, or a magistrate’s court during an election period.

Mr Morgan, as requested, then indicated that he had studied other countries’ practices. In Canada there legislation; Mexico’s position was supported by electoral legislation and Australia had an existing policy, although not without controversy. New Zealand’s guidelines were enforced with apparent success.

Mr Morgan realised that advertisements such as those mentioned could be interpreted in different ways and the full impact might not be immediately measurable. However, his proposal, even if it only stimulated debate on the issue, would significantly contribute to levelling the playing fields for political parties during elections, would ensure that the line between party and state was not blurred, and that state resources were not used to promote any particular governing party.

Discussion
Ms Mentor thanked Mr Morgan, commenting that it was pleasing to see Members who were so passionate about their issues and so articulate when setting their goals. She was sorry that the research conducted in other countries was not in hard copy form in front of the committee.

Mr Mshudulu noted that part of the election process ensured that communities were empowered to take decisions that would improve their conditions by addressing their interests. Government had an obligation to communicate so that all citizens had the right to information, and that was a challenge. He stressed that the right to be informed must continue.

Mr Mshudulu noted that the issues raised would involve the Department of Home Affairs. The Independent Electoral Commission (IEC) had a role around conduct, and he would be interested in its comment. He would also like to hear from GCIS, whose whole mandate revolved around communication because people had the right to information. He agreed that timing was important, and it would be very interesting to have a debate into the many issues raised.

The Chairperson indicated that she agreed that these three bodies should be asked to give input to the Committee.

Mr G Boinamo (DA) reflected that Mr Morgan’s presentation had been an eye opener. It was necessary, particularly during elections, to know the Constitutional provisions, because some of the things were done out of ignorance. He fully understood that Mr Morgan did not say that government should not advertise at all, but that any communication or advertising must fall within a certain time period, or must fit into certain categories during the election period.

Ms Mentor agreed the issue warranted a debate. It was an issue of national importance. She stressed that this Committee must engage seriously in terms of the recommendations that it made, to ensure that they were accorded due weight. Some previous issues raised by the Committee had not, in her view, been given the importance they deserved.


The Chairperson indicated that this proposal would be debated again by the Committee on the following Friday. Mr Morgan may attend, as could other Member of Parliament. She proposed that the Committee must indicate clearly that it would like senior officials of IEC, GCIS and DHA to attend and indicate their views on this date. All documents must be sent out again to enable the Committee to better understand the rationale of the proposals and the draft clauses.

The Chairperson noted that government did not cease to function during election campaigns. She agreed that government actions during an election should be accountable, transparent and regulated. These proposals were not directed against any one political party, but were intended to cater for the future, irrespective of who the ruling party was. She indicated that there was research that should be studied, including the examples of Canada, Australia and other countries.

Mr Mshudulu added that Parliament had a large legal team that could assist in the process. There could be areas not raised that they could explain. Communication took many forms and it was necessary to guard against abuse.

The Chairperson also raised the issue of funding of political parties. She had recently attended a meeting in Ghana of seventeen Sub Sahara countries, ruling parties and opposition parties, when funding was discussed. She wondered if, to reduce any abuse of communication, funding might used as an incentive to dissuade ruling parties from manoeuvring state resources during election periods.

Mr Morgan thanked members, particularly Mr Mshudulu, for getting to the crux of the issue. There were a number of important issues around the emerging democracy, what should be proscribed, what could happen and when this might be reviewed. He looked forward to the more detailed discussion the following week with the relevant stakeholders.

South African Schools Act Amendment Bill: Proposal by Mr G Boinamo (DA)
Ms Mentor noted that a proposal had been submitted in July 2006, from Mr Boinamo. This should have been accompanied by a letter from the Speaker and from the Speaker’s office.

Mr G Boinamo (DA) stressed that the background to the Bill was the need to ensure that South Africa provided quality education to all children.

Mr Boinamo outlined that the objects of the proposed legislation. He noted that Section 29(1) of the Constitution of the Republic of South Africa stated that everyone had the right to basic education, including adult basic education. The State must implement measures giving effect to the right as a matter of absolute priority.

Mr Boinamo noted that as there was no definition of “basic education” it was difficult to enforce the right. The White Paper on Education and Training had stated that appropriately designed education programmes to the level of one year reception class plus nine years of schooling would adequately define basic education for the purposes of the constitutional requirement. It was submitted that basic education should not be defined in terms of age or the completion of a particular level of schooling alone. Rather, in terms of international best practice and international human rights law, basic education should be defined as education that was available, accessible, acceptable and adaptable.

The Bill now presented by his proposal sought to define the scope, content and meaning of basic education within the framework of availability, accessibility, acceptability and adaptability.

Furthermore, given the relatively low enrolment rates and high dropout rates, resulting in a number of learners leaving school before they were functionally literate or numerate, the Private Members Bill also sought to make it obligatory for the State to investigate why a learner was failing to attend school.

He indicated that the State spent very significant amounts of money on providing primary education but it was apparent that much of that money was not spent to best advantage because there was no benchmark against which spending priorities were determined.

Discussion
Mr Mshudulu raised a procedural issue. The Committee would need far more information and would need to engage on an ongoing basis. He noted that Mr Boinamo’s interpretation around the constitution and that the issue of guaranteeing fundamental rights was based on the availability of resources must be examined carefully. Equally, he felt that it was necessary to look again at the interpretation of the Schools Act, both from the role of the Act and its intentions. Standards of education might also need to be examined. The Committee would need an opportunity to refer to all legislation around these issues. He pointed out that some learners may be enrolled in provinces that were well resourced and that the situation outlined by Mr Boinamo might not apply equally throughout South Africa. He suggested that more research was needed to support his proposal

The Chairperson agreed that the proposal needed to be worked on. The objects of the proposal were too widely stated, and the scope and content were not clear. Although his thoughts were stated well, they had not been put into a form that could be translated easily into a Bill. She indicated that the format should be similar to that used by Mr Morgan. He could use the rule book, ask the Legal Division to assist or ask the Committee staff for assistance in excluding from his proposal matters that need not be debated. She also proffered her own assistance. She suggested that he return to the Committee the following week.

Mr Boinamo responded that Mr Mshudulu had referred to the resources being dependant on availability of funds. The proposal was dealing with what the constitution said about education for South African children. There could not be an assumption that the State did not have money, as it was obliged to provide education to South African children, and was not doing so. If the executive was not doing the job properly then it was clear that the education was of inferior quality. He referred Mr Mshudulu to the lack of full participation in the Maths and Science fields.

The Chairperson interjected that the proposal was that Mr Boinamo must re-draft and clarify the objects, and this proposal resulted from the Committee’s consideration of his presentation. The Committee looked forward to seeing him the following Friday.

The meeting was adjourned.