Progress Update on Electoral Matters Amendment Bill 2023
This presentation outlines the purpose, clause-by-clause analysis, constitutional court judgments, and recommendations concerning the Electoral Matters Amendment Bill 2023. It aims to inform the Joint Sitting of the Portfolio Committee on Home Affairs and the Select Committee on Justice about the developments in Parliament regarding the bill's introduction.
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PRESENTATION: ELECTORAL MATTERS AMENDMENT BILL, 2023 SECRET 1
Presentation outline 1. Purpose of the presentation 2. Clause by clause analysis of the Bill 3. Constitutional court judgments 4. Recommendations SECRET 2
Purpose of the presentation The purpose of this presentation is provide the Joint Sitting of the Portfolio Committee on Home Affairs and the Select Committee on Justice of the progress made in the introduction of the Electoral Matters Amendment Bill in Parliament. SECRET 3
LONG TITLE The Electoral Matters Amendment Bill ('the Bill ) seeks to amend the Political Party Funding Act, 2018 (Act No. 6 of 2018) (the Act ) so as to provide for the regulation of the private and public funding of independent candidates and independent representatives and matters incidental thereto; to amend the title, long title and preamble; to insert and substitute definitions; to amend the names of the Funds; to preclude the Electoral Commission from accepting donations to the Multi-Party and Independents Democracy Fund which it has reason to believe is the proceeds of crime; to empower the Commission to invest money in the Funds in any bank registered in terms of the Banks Act, 1990; to proscribe the attachment of money in the Funds by certain persons; to provide for the right of political parties, independent candidates and independent representatives to refuse donations; to repeal section 10; to amend the provisions relating to the accounting obligations of represented and unrepresented political parties; to provide for the offence of making a donation to a political party, a member of a political party, an independent candidate or an independent representative in the expectation that the party, member, SECRET 4
LONG TITLE . candidate or representative will influence the award of benefits or relaxation of conditions; to provide for the offence of making a donation to a member of a political party to circumvent the provisions of Chapter 3; to provide for offences by a member of a political party of accepting a donation to circumvent the provisions of Chapter 3 or appropriating the donation for themselves; to amend the powers of the President to make regulations on certain matters; to amend Schedule 2 in respect of the formula for the allocation of money in the Funds on a proportional and equitable basis, in respect of the upper limit of donations and the disclosure limit for donations; and to amend the Electoral Act, 1998, the Electoral Commission Act, 1996, the Electronic Communications Act, 2005 and the Financial Management of Parliament and Provincial Legislatures Act, 2009 so as to make consequential amendments resulting from the introduction of independent candidates to contest elections of the National Assembly and provincial legislatures. SECRET 5
CLAUSE BY CLAUSE Clause 1 & 2 PURPOSE OF THE CLAUSE Amend the long title and preamble of the Funding Act to reflect that it regulates the private and public funding of all participants in the political process i.e. political parties, independent candidates and independent representatives. 3 Substitutes and insert various definitions in section 1 in order to ensure that the Funding Act applies to political parties, independent candidates and independent representatives 4 & 5 Substitute the names of the Funds in sections 2 and 3. 6 Substitutes section 4 to empower the Electoral Commission to invest money in the Funds not immediately required for making an allocation in any bank registered as a bank in terms of the Banks Act, 1990 and substitutes the provisions of section 4 to include independent candidates and independent representatives SECRET 6
CLAUSE BY CLAUSE Clause 7 PURPOSE OF THE CLAUSE Substitutes the provisions of section 6 pertaining to the allocation of money in the Funds to political parties and independent representatives including the criteria for the prescribed formula for allocation money in the Funds on a proportional and equitable basis 8 Inserts section 6A to prohibit the attachment of money in the Funds by a creditor of any political party or independent representative and to provide that section 179 of the Tax Administration Act, 2011 does not apply to money in the Funds. 9 Substitutes the provisions of section 7 in order to regulate the use of public money allocated to independent representatives. 10 Substitutes the heading of Chapter 3. 11 Substitutes the provisions of section 8 in order to prohibit certain direct donations to independent candidates and independent representatives SECRET 7
CLAUSE BY CLAUSE Clause 12 PURPOSE OF THE CLAUSE Inserts section 8A to provide for a right of political parties, independent candidates and independent representatives to refuse donations. 13 Substitutes section 9 to require independent candidates and independent representatives to disclose certain donations and to require those who make certain donations independent candidates and independent representatives to make disclosure thereof. 14 Repeals section 10 which absolutely proscribes all donations to members political parties other than for party political parties. In other words, section 10 prohibits a member of a political party from receiving any donation in their private capacity for any reason whatsoever. In place of section 10, clause 25 inserts new focused offence in section 19 of: making a donation to a member of a political party to circumvent the provisions of Chapter 3, i.e. the provisions which regulate the direct or private funding of political parties; and of a member of a political party accepting a donation to circumvent the provisions of Chapter 3 or of appropriating a donation meant for a political part. SECRET 8
CLAUSE BY CLAUSE Clause 15 PURPOSE OF THE CLAUSE Substitutes the heading of Chapter 4. 16 Substitutes section 11 to require independent representatives and independent candidates to furnish information and documentation to the Commission as prescribed or required 17 Substitutes section 12 to clarify the circumstances in which political parties must account for income and that only represented political parties must have their financial statements audited by a registered auditor. 18 Inserts section 12A to regulate the duties of independent candidates and independent representatives to account for income. 19 Substitutes section 13 to include independent representatives. SECRET 9
CLAUSE BY CLAUSE PURPOSE OF THE CLAUSE Clause 20 Substitutes section 14 to require the Commission to monitor compliance by independent candidates and independent representatives with the Funding Act. 21 Substitutes section 15 to empower the Commission to issue directions to independent candidates and independent representatives. 22 Substitutes section 16 to empower the Commission to suspend the payment of money to independent representatives. 23 Substitutes section 17 to empower the Commission to recover money from independent candidates and independent representatives. 24 Substitutes section 19 to: (i) introduce offences in respect of breaches of consequentially inserted and amended provisions regulating private and public funding of political parties, independent candidates and independent representatives; SECRET 10
CLAUSE BY CLAUSE Clause 24 PURPOSE OF THE CLAUSE (ii) introduce an offence of making a donation to a political party, a member of a political party, an independent candidate or an independent representative in the expectation that the party, member, representative or candidate concerned will influence the awarding of a tender, licence, approval, consent or permission, or the relaxation of a condition or restriction in relation thereto, in the said person s favour in accordance with the recommendations of the Judicial Commission of Inquiry into Allegations of State Capture; and (iii) introduce offences by a member of a political party of accepting a donation to circumvent the provisions of Chapter 3 or appropriating the donation for themselves, so as to replace the absolute prohibition in section 10 of the Funding Act of members of political parties accepting donations in their private capacities. 25 Substitutes section 22 to require the Commission to include information pertaining to the private and public funding by independent representatives and independent candidates SECRET 11
CLAUSE BY CLAUSE Clause 26 PURPOSE OF THE CLAUSE Substitutes section 24 to: provide that the President may make regulations after consultation with the National Assembly Portfolio Committee for the Minister responsible for the Funding Act; to set out the factors that the President must take into account when making regulations for the matters contemplated in section 8(2) and (5) and section 9(1)(a) i.e. the limits on what donations may be accepted by a political party, independent candidate or independent representative and the threshold above which donations must be disclosed to the Commission; and to make explicit that the regulations contained in Schedule 2 are transitional and each become inoperative when the President makes a regulation replacing them. 27 Substitutes section 25 in relation to the name of the Multi-Party and Independents Democracy Fund. 28 Substitutes section 26 to make consequential amendments. SECRET 12
CLAUSE BY CLAUSE Clause 29 PURPOSE OF THE CLAUSE Substitutes Schedule 2 to: include references to independent representatives where necessary; to amend the formula by which money in the Funds is allocated to represented political parties and independent representatives on a proportional and equitable basis; the amend the upper limit of donations; and to amend the disclosure threshold for donations. 30 Substitutes the definition of serve in section 1 of the Electoral Act to include electronic mail. 31 Substitutes section 24A of the Electoral Act to provide that a voter who is unable to cast their vote at a voting station in the district they are registered may only vote for the regional seats in the National Assembly if their name appears on the segment of the voters roll for the province in which the voting district is situated. 32 Substitutes section 33 of the Electoral Act to provide that persons contemplated by subsections (3), (4) or (4A) may only cast a vote for the election of the compensatory seats for the National Assembly in terms of Schedule 1A. SECRET 13
CLAUSE BY CLAUSE Clause 33 PURPOSE OF THE CLAUSE Inserts definitions of independent candidate and independent representative in section 1 of the Electoral Commission Act. 34 Amends section 5 of the Electoral Commission Act to specify that the Commission s functions including establishing and maintaining liaison and co-operation with parties and independent candidates and independent representatives. 35 Inserts definitions of independent candidate and independent representative and substitutes other definitions in section 1 of the Electronic Communications Act. 36 - 40 Substitute sections 52, 56, 57, 58 and 59 the Electronic Communications Act so as to include references to independent candidates and representatives. 41 Amends the arrangement of sections 52, 56 and 59 of the Electronic Communications Act. SECRET 14
CLAUSE BY CLAUSE Clause 42 Description of the steps inserts a definition of independent representative in section 1 of the Financial Management of Parliament and Provincial Legislatures Act. 43 substitutes section 34 of the Financial Management of Parliament and Provincial Legislatures Act to include references to independent representatives. 44 is the Short Title of the Amendment Act and addresses its commencement. 36 - 40 substitute sections 52, 56, 57, 58 and 59 the Electronic Communications Act so as to include references to independent candidates and representatives. 41 amends the arrangement of sections 52, 56 and 59 of the Electronic Communications Act. SECRET 15
PROGRESS: AFTER CABINET DECISION Cabinet, on 29 November 2023, approved the introduction of the Electoral Matters Amendment Bill. The Department, thereafter, submitted the approved Bill to the Office of the Chief State Law Adviser for final certification of the Bill as contemplated in rule 279(2) of the Joint Rules of Parliament. OCSLA certified the Bill and submitted same to the Bills Office, Parliament The Department also proceeded to, under Proclamation R702, Government Gazette No. 49836, publish the Explanatory Summary of the Electoral Matters Amendment Bill, 2023 Minister subsequently addressed letters to the Speaker, NA and the Chairperson, NCOP, indicating Minister s intentions to initiate the processes of introducing the Bill in Parliament. SECRET 16
CONSTITUTIONAL COURT JUDGMENTS On 4 December 2023, the Constitutional Court ( CC ) delivered 2 judgments on the Electoral Act, 1998 (as recently amended by the Electoral Amendment Act, 2023), namely: - Independent Candidate Association South Africa NPC v President of South Africa and Others [2023] ZACC(the Independent Candidate judgment ); and One Movement South Africa NPC v President of South Africa and Others [2023] ZACC 42 (the One Movement judgment ). These were 2 separate applications that were heard together by the CC, on 29 and 30 August 2023, as they both challenged the Electoral Act, 1998. Following the judgments, Minister, on 6 December 2023, issued a Media statement wherein Minister welcomed the unanimous judgment of the CC in the Independent Candidate judgment The Minster equally accepted the One Movement judgment and noted that Parliament has been given 24 months to cure the constitutional defect. SECRET 17
CONSTITUTIONAL COURT JUDGMENTS Minister further noted that 1 000 signatures will apply for each region in which a candidate intends to contests an election On 8 December 2023, Parliament Legal Services briefed the Portfolio Committee on Home Affairs on the CC s judgments, as well as the implications of the judgments. In closing, the Parliamentary Legal Services stated that [W]hat is urgent, is that if the Department indicates that it is necessary for this amendment to be included in the Electoral Matters Amendment Bill, the Committee needs to know that before it does a call for comments, as it will affect how the advert to the public will be formulated and whether the House must be approached for permission to extend the scope of the Bill. [My emphasis and italics]. In view of the above submission, the Department is of the view that the Parliament must proceed with the Electoral Matters Amendment Bill as is, without dealing with the introduction of the reading-in wording of the CC. SECRET 18
CONSTITUTIONAL COURT JUDGMENTS Parliament has 24 months within which to deal with the constitutional defect referred to in the One Movement judgment. SECRET 19
RECOMMENDATIONS It is recommended that the Joint Sitting of the Portfolio Committee and the Select Committee notes the progress made in introducing the Electoral Matters Amendment Bill in Parliament. SECRET 20
THANK YOU SECRET 21
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