Special voting taking place at the Highway Gardens voting station in Edenvale on 31 October 2021. Picture: Neil McCartney
Parliament’s Portfolio Committee on Home Affairs will apply for an extension to finish its work on the Electoral Amendment Bill.
The committee will approach the National Assembly for permission to request a short extension to the Constitutional Court (ConCourt) to call for written submissions on the bill’s new changes.
This is after National Council of Provinces (NCOP) made substantive changes to the signature support requirement, among other things, in the bill.
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Before the bill went to the NCOP, the Portfolio Committee agreed to include a requirement for independent candidates to obtain signatures totalling a 20% quota for that region in the previous elections when nominated.
NCOP’s Select Committee on Security and Justice went further by proposing that parties registered for elections and not represented will have to produce the same amount of signatures.
The other proposal by the Select Committee in the bill included a clause for the establishment of the electoral reform consultation panel after the 2024 elections.
During Friday’s meeting, the Department of Home Affairs’ legal adviser Steven Budlender told the Portfolio Committee that they looked at three unrelated court cases to evaluate whether the public’s input was required for the NCOP amendments.
According to Budlender, two of these cases found that there was no requirement that public participation should be an ongoing dialogue.
The third litigation, however, involving the South African Veterinary Association, reached a different conclusion.
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“The cases point in different directions depending on how you read them, but on balance our view is that we think it would be prudent to engage in further public participation. It can be a shortened period of public participation [and it can be] by means of written submissions [since] there’s no need to have oral hearings,” he said.
Budlender pointed out that it was up to the committee to decide whether the window for public comment happens before the 10 December deadline.
“What the extent of the public participation is really for that the committee to determine. If there is no time to do it then our view is that an application for extension must be made and it must be [filed] urgently at the very latest by Monday… perhaps for a limited period.”
Parliamentary legal adviser Siviwe Njikela expanded on the matter further, saying the extension “could possibly be up to February” next year.
“If there is going to be further public participation, the committee must be mindful of the fact that we are already in December, and that ordinarily has an impact on the quality of public participation that you might have in this kind of work,” Njikela said.
“The courts previously said it is not reasonable to make these extensions over the period where people are going on holidays. Another consideration is that people come back from those holidays mid-January.
“We need to be realistic to each other because what will be most embarrassing is for Parliament to approach the courts in December and itself asking for another extension.”
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Most of members in the committee agreed that public comments on the new proposals was needed following deliberations.
Independent Electoral Commission (IEC) chairperson Mosotho Moepya, meanwhile, said the extension would impact the commission’s work for the 2024 elections, but agreed that it was necessary.
“We will have to look at this. There is a reality that we have to face that the bill will not be ready by the 10th. What that would mean for us is something different [because] our preparations will not be what we thought it will be,” he told the committee.
“Does the committee wait for the application to launched to invite [the public for comment] or does it wait for the court order? That is also very material because it’s going to determine how soon [the submissions] can be received and considered.”
Furthermore, the committee’s chairperson Mosa Chabane indicated that they would have to approach the National Assembly to request permission for the extension.
“We are going to carry for written submissions in the shortest time [possible] to conclude this matter. In the constituency period, we may have to [find out] whether Parliament will be able to convene to pass this bill so that time will be allowed for the president to look and consider what Parliament would have referred to his attention.”
READ MORE: Electoral Amendment Bill: Parliament deliberates on key issues
Chabane also asked for clarity on the consequences of the extension potentially being rejected by the ConCourt.
“If it comes that the extension is not granted, I suspect that the court will issue specific directions to Parliament in terms of how it deals with the issue of this legislation and possibly the issue of elections [for the IEC] going forward. In my view that is the worst case scenario which I don’t think we are there yet,” Njikela responded.
The bill was introduced in February 2022, to amend the Electoral Act, which was found unconstitutional, to allow independent candidates to contest elections.
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