Electoral A/B: formula for seat calculation; Drugs and Drug Trafficking A/B: Department response to public submissions

Meeting report

The Chairperson observed that the Select Committee would be receiving a briefing from the Electoral Commission (IEC) on the formula for the calculation of seats in the Electoral Amendment Bill. The second item was a briefing from the Department of Justice and Constitutional Development (DoJ&CD) on the Drugs and Drug Trafficking Amendment Bill.

In the previous meeting, the Committee had an engagement with the Department of Home Affairs (DHA) where it received a briefing on the Bill. The Committee had a “lengthy and fruitful engagement”. From that meeting, areas emerged on which the IEC needed to provide clarity. The calculations of seat allocation could be “very technical”. But the Committee thought it was prudent to be taken through that process. Therefore, as it continued processing the Bill, and as comments came in from the public on the Bill, and given the limited time the Committee had to address matters from that Bill, the Committee thought that it should have an understanding of the formula and calculation. It also requested the IEC to explain the formula in simple terms, including how seats would be allocated to independent candidates (ICs) and political parties.

Briefing by the Independent Commission of South Africa on the formula for the calculation of seats
Mr Mosotho Moepya, Commissioner, IEC, introduced the delegation, which included: Ms Janet Love, Vice-Chairperson, IEC; Mr Glen Mashinini, Commissioner, IEC; Ms Nomsa Masuku,  Commissioner, IEC; Mr Sy Mamabolo, Chief Electoral Officer (CEO), IEC, and his team.

The IEC had been requested to brief the Committee on the formula that would be used for the calculation of seats, as proposed in the Electoral Amendment Bill.

Mr Moepya observed that it was not so much the presentation that was important; it was the journey that the IEC wanted to take the Committee on. As the IEC, it had seen a number of bills, but it had never seen a Bill that called so much attention, and required so much explanation. The IEC accepted that the Bill raised some important things, but it also accepted that it was because of the weighty nature of the Bill that it needed to make it abundantly clear what was being dealt with. The Bill was technical to the extent that the IEC had to come and explain. Schedule 1A was not just a piece of law, but was a technical entity that was fraught with formulae and figures that one needed to use to make it clear what the IEC was seeking to do. The IEC had, from a technical point of view, painstakingly looked at how the letter of the law as it was in the Bill was espoused in Schedule 1A. The IEC did so via looking at how the Bill would pan out in practice if it was to be passed. It was important that the IEC pointed that out because there was so much being said that was incorrect, or not a proper representation of the Bill. The IEC hoped, without defending one position or the other, to make it plain what was in the Bill. The IEC continued to reflect on the constructive criticism that the Bill faced, and continued to face. If issues were raised and those needed to be corrected, the IEC did not shy away from saying, “in this context, this is what the Bill ought to do”. It would become clear that morning when the IEC dealt with the Bill. Those were the issues that the IEC was confronting. The IEC was not only speaking inside the House, but South Africans in general were also interested in the Bill. The IEC thought it was important that every patriotic, peace-loving, democratic South African who enjoyed this democracy truly engaged with the Bill from the point of view of what it contained, and not what people thought it was. That was the spirit with which the IEC came before the SC that morning, and was presenting that Bill.

Mr Sy Mamabolo, Chief Electoral Officer (CEO), IEC, presented the calculation methodology, i.e. how the IEC translated the votes received into seats in the various legislative bodies.


Schedule 1A sets out the electoral system. It provides that the 400 seats of the national assembly will be contested on the bases of 200 national compensatory seats and 200 regional seats. The Commission is empowered to proportionally determine the regional allocation of regional seats. Independents may only contest the 200 regional seats. A party must submit a national and at least one regional list.  Droop is used as a method of determining the quota of votes required to obtain a seat. This is so because Droop is considered one of the most proportionate formulas. Independents may contest a seat in multiple regions. However, they may only be elected to a single seat. As a consequence, there is seat forfeiture and recalculation method to award surplus seats. A party that submits fewer candidates than the number of seats it wins, forfeits the excess seats. For this reason, there is a forfeiture calculation to re-allocate the seats. Independents must submit signatures to evidence support. These have been determined at 20% of votes required for a quota in a comparable previous election

Schedule 1 A - Seat calculation

-Multi-member, two-tier compensatory, closed list, proportional system for the National Assembly.
-Total number of seats of 400 which is divided into 200 national PR list and 200 regional seats.
-Regional seats are divided between the regions using the registered population.
-A droop quota is used for all the National Assembly and Provincial Legislature calculations, i.e. dividing the total valid votes by the available number of seats plus 1.
-With the recent inclusion of Independent candidates, each voter will receive 2 ballots – one for the region (including the Independents) and a national PR ballot with parties only for the National Assembly.
-Provincial legislatures retain 1 ballot.

Discussion

After slide 11, the Chairperson asked about the formula for seat allocation. She observed that the Committee received a presentation previously which did not necessarily include all of the slides that the IEC was presenting. She asked Mr Mamabolo to return to slide ten (Schedule 1 A - Seat calculation (National Assembly)), which contained the formulae. Understanding the formula in step 1 was simple. When the IEC was doing the division of the total valid votes (which was PR), it was dividing it by the total seats plus one, which was the normal formula. Members understood that formula, and she observed that the Members who came from various parties had an idea of that. But the IEC also subtracted independents in step 2.

Mr Mamabolo replied that the independents were, in a sense, only participating in the regional election. However, when one restores the overall proportionality, or one attempts to restore overall proportionality, one would factor votes cast on the compensatory ballot as well as votes cast in the regional elections. One takes the total valid votes, both nationally and provincially, puts them together, and divides that by the total seats that were won, minus seats already won by independents. The independents were not participating in the compensatory element. Since the independents were not participating in the compensatory element, that was why one subtracted the seats that they had already won.

Ms C Visser (DA, North West) had a concern with the seat calculation: The system where independents stood in each province separately almost guaranteed recalculation in every province. Every time there was a recalculation, then the largest party would be most likely to benefit from that.

The Chairperson suggested that Mr Mamabolo continue with his presentation, after which he could address additional questions. She thought it would be helpful to get an understanding of the actual calculations that had been used.

Briefing by the Independent Commission of South Africa on the formula for the calculation of seats (continued)

Electoral Amendment Bill – proposed adjustments

1.   With respect to the forfeiture calculations, two technical issues were discovered and the following adjustments are therefore proposed to Schedule 1A:
Including Independent candidates in forfeiture recalculations during the results process at election time, i.e. changes to items 7 and 12 and with context, changes to items 23 and 24 (dealing with vacancies). The context for the proposal will be illustrated in the scenarios.

On a high level, Independent candidates were excluded to prevent a second seat to be allocated which would cause another recalculation. However, this also inadvertently protects an Independent who gained a seat on a remainder where other contestants will not receive the same treatment.

Mr Mamabolo added that had to be corrected, so that all contestants were treated on the basis of parity.

Item 21 – when an Independent candidate wins a regional as well as a provincial legislature seat and has to exercise a choice within 2 days after results have been announced, that it is treated as a vacancy (i.e. item 23) and not a forfeiture calculation (item 7 or 12).

Seat calculation has been finalised at this point and the re-calculation should be treated as a vacancy so that any seats already won are retained.

Mr Mamabolo added that there was also an issue in item 21, on when an independent candidate waives the regional as well as the provincial seat. An independent can decide to contest in the regional as well as in the provincial election. It was possible that an independent may win in both elections. If that materialised, then the independent must exercise a choice within two days after the results had been announced. In the current draft of the Bill, the IEC treated that as a forfeiture calculation, but in fact it ought to be a vacancy recalculation.

Schedule 1A - Scenarios

Mr Mamabolo presented scenarios to illustrate the refinements that the IEC proposed. The scenarios were based on the actual results from the 2019 election. He also used tables to illustrate these scenarios (which were contained in the presentation).

1. All scenarios are based on the actual results of the National and Provincial Elections in 2019.
2. Some of the party names have been re-labelled as independent candidates.
3. For ease of the illustration, the parties/independent candidates with less than 10 000 votes are omitted from the graphics, although forming part of the calculations.

Schedule 1A – Scenario 1 (current Bill)

- Regional seat calculation with an Independent gaining more than one seat and requiring a forfeiture calculation (slide 15).

Mr Mamabolo added that in that scenario, there were four 4.5 million valid votes in that region. There were 48 seats available in that region. When one takes the total valid votes, and one divides that by 48 seats plus one, the result was once the quota was met at 2 601, meaning that in this region (Gauteng results were used in the scenario), in order to get a single regional seat, one needed 92 601 voted that would get one a seat. When doing the allocation, one takes the total valid votes for each party, and one divides that by the quota. One would then get zero for party one, 26 for party seven, and then there was a remainder of 6 353. Party one would get the first allocation of zero, therefore their total valid votes were the remainder.

In the scenario, independent five had 175 152 valid votes, and that was divided by the quota. That gave independent five one set in the first allocation, with a remainder of 82 551. But in the first allocation, one was only able to allocate 45 seats instead of the 48. The highest remainders needed to compete for the excess seats. There were three excess seats in the scenario. The biggest remainder went to independent five at 82 551. The second biggest remainder was 58 098, by party 26. The third biggest remainder was independent seven at 845 842. One could then rank the candidates accordingly. The result was that independent five now got two seats. That candidate was a single person. One therefore needed to have a forfeiture calculation. Whilst the independent retained their seat, the other seat must “go back into the pot” for the recalculation.

- Regional forfeiture calculation with Independent 5 receiving the 1 seat and being removed from the recalculation. In addition, according to item 7 currently, Independent 7 will automatically retain the seat and is excluded from the recalculation as shown below. Other contestants may be disadvantaged (slide 16).

Schedule 1A – Scenario 1 (proposed adjustment to forfeiture calculation)

Mr Mamabolo added that in that scenario, the only exclusion ought to be that of independent five, and protecting the seats that they had already gained. The scenario would also allow the rest of the contestants to compete accordingly. In the event that independent seven still got the seat, within the IEC’s proposed scenario, the contestant would still get that seat. Independent seven would get that seat on the remainder of 45 000 votes against the quota of 89 926 (see slide 17).

Schedule 1A – Scenario 1a

- Regional forfeiture calculation in terms of the proposed item 7 indicating the effect of quota changes on remainders.

Mr Mamabolo added that a general principle that the IEC wanted to demonstrate was that the more one reduced the quota, it resulted in a higher remainder for contestants in relation to the seats that they won in the first round. In a sense, it was a consequence of the electoral outcome that the more votes one gained, when the quota was reduced (for whatever reason), the remainder, for electoral contestants increased. In the scenario, the IEC artificially reduced the quota by 1 000. As the quota reduced, the remainder for parties or even independents increased in relation to the number of seats gained. It was an inherent principle in how the formula operated (see slide 18).

Schedule 1A – Scenario 2 (Vacancy)

- Provincial seat calculation with Independent 5 causing a vacancy during the term. Please note that proposed changes to sections 23 and 24 are required as a result of the proposed changes to items 7 and 12 and do not alter the principle of the vacancy calculations.

Mr Mamabolo added that the vacancies only come into effect mid-term when an independent for instance, died or resigned, or they were no longer qualified in terms of the Constitution to hold office. Then one had to do a vacancy calculation. The principle worked the same – Mr Mamabolo demonstrated using the example on the slide. In that case, independent five (marked in red on the slide) independent five caused the vacancy, and then one would have to do a vacancy recalculation (see slide 20) and remove the votes of that independent from the calculation. When one did that, it reduced the total valid votes. The calculation reduced the quota as well. It also increased the remainders for contestants because of the principle that he indicated. In this case, section 23 protected the seats already held. In other words, when the IEC applied that vacancy calculation where a party had 20 seats, it was protecting those 20 seats, and where an independent had a seat, that was protected. One would not then have a situation where one had a seat, and then because of a vacancy recalculation, one no longer had a seat. In that calculation, party five gained that extra seat that was vacated by the independent. It could be any party; it depends on the strength of the remainders. Party five in the scenario had the second highest remainder at 23 000 after party 17. In item 23 and item 24, the IEC wanted technical adjustments to be made to give effect to that proposition.

In conclusion, Mr Mamabolo stated that the technical refinements in Schedule 1A, items 23 and 24 were contextually necessary because of the technical refinements made in items 7 and 12.

(See Presentation)

Further Discussion

The Chairperson agreed that there had been a lot of public interest in the Bill. There had also been various assumptions made about the Bill, and she felt that some of those were incorrect. In the meeting with the Department the previous week, the Committee had tried to address some of those assumptions. The Committee could take comfort in the fact that the method being used – the Droop method – was a method that had been used in South Africa since 1994. She saw that the IEC was also proposing amendments specifically dealing with the fairness between political parties and independent credits, with reference to the signature requirements, etc. The IEC was also looking at other technical amendments to deal with other aspects of the formula, which she imagined would be to make the formula “more free”.

Ms Visser’s concern with the seat calculation was that the system where independents stood in each province separately, almost guaranteed a re-calculation in every province. Every time there was a re-calculation, then would the largest party not be most likely to benefit from that, with respect to the smaller parties?

Mr M Dangor (ANC, Gauteng) observed that the Bill had obviously generated the necessary interest from the public, civil society, and analysts. There had been a call for the overhaul of the electoral system in its entirety. That call obviously went beyond what the Constitutional Court (ConCourt) ordered Parliament to do. What was the view of the IEC on the following: The calls for the constituency-based electoral system, firstly informed by the Constitutional Court judgement; secondly, the practicality of introducing a constituency-based electoral system; and thirdly, whether it was feasible to introduce a constituency-based system. He argued that “we cannot only reduce this particular matter to a technicality, we have to look at the philosophy”. The Committee also had to look at the narratives as to what informed, prior to 1994, the electoral system of proportionality and the reasons thereto in that it had to be inclusive and bring everybody on board, but also that it did not have to promote the question of race, crime, and any other exclusive entity.

Ms M Bartlett (ANC, Northern Cape) asked about the IEC’s view on the provision in the Bill that an IC could contest in more than one region, but the seat would be allocated to the region where the IC was from. She was not sure if the ICs then had more votes.

Ms N Ndongeni (ANC, Eastern Cape) asked about the Bill providing for the filling of vacancies in the event of ICs no longer being available to occupy a seat for a variety of reasons. What was the view of the IEC on the formula to be used to fill vacancies for ICs? How had the filling of vacancies been done since 1994?

Ms A Maleka (ANC, Mpumalanga) observed a concern from civil society in relation to what was called the discarding of votes. Could the IEC elaborate on the circumstances under which votes were discarded, and whether that had been a practice in South Africa’s electoral system? What were the global practices on that matter?

Mr E Mthethwa (ANC, KZN) observed that the Bill provided requirements for the registration of ICs. That was understood to mean that new political parties were also required to submit signatures for the registration as outlined in the current acts. What was the IEC’s proposal on the matter of equalising the requirement for signatures for registration of both political parties and the ICs? How is the IEC going to ensure that the issue of fraudulent signatures could be picked up? People could Photoshop the signatures, and then 13 000 “was nothing”. He had seen that the minimum was 13 000. A person could sit down in a room and put up all the signatures and submit them. How would that be verified to ensure that those were authentic signatures?

Mr I Sileku (DA, Western Cape) asked about the time allocated to Members of Parliament (MPs) to deal with the Bill since it was a “very technical Bill”. There had also been a lot of comments on the Bill. In the IEC’s view, did it think that if the National Assembly (NA) started earlier, would it have allowed the Committee to look at all the loopholes in making sure that the Bill was not challenged by civil society in the Constitutional Court, based on a misunderstanding, and on issues that were unclear in the Bill?

On signatures: Was the proposed figure of 20% also going to be applicable to political parties that were contesting for the first time? Was it also applicable to those who had contested previously? He also asked about the issues of vacancies and the remainder. How did one guarantee that a seat that had been won by an IC did not go to a political party? An IC was one person, and so they would automatically get one seat. But one would find that some independents would garner more votes than parties. There were political parties that struggled to get 500 votes in local government elections. He gave an example: An IC got two seats. Then the next person in terms of the formula who had the highest remainder would be a political party. Automatically, that seat would go to a political party. One would have liked to have seen that if an IC lost a seat, then that particular seat benefitted the next IC. It would not be guaranteed if the next IC, in terms of the quota, actually had fewer votes. How would one guarantee that the seat lost would benefit an IC? With vacancies: He used himself as example. Mr Sileku was an IC, but due to matters beyond his control, he decided that he wanted to leave, and he forfeited his seat as an IC. With the calculation, where would that seat go? Would that seat be allocated to the party with the highest remainder? Or would the seat be allocated to an IC with the highest remainder?

Mr G Michalakis (DA, Free State) observed that if a Member of the NA gave up their seat, it went to the political party in which that MP was a member. Regardless of how many people came and went, the proportionality of the NA remained the same after the elections, i.e. what people voted for. He observed that some ICs got in on fractions. Depending on how many ICs came in, and how many left within the five years, one might end up with an NA that proportionally, did not represent what the election results were at the beginning of the term. That was where the moral problem came in: there was the possibility that one might sit with an NA that looked quite different from what the election outcome was. He asked if the IEC acknowledged that this model created a slight problem with the electorate, and sat uneasily with many Members. Was the IEC comfortable with that?

The presentation began with references to proportionality, and specific references to certain countries or parliaments having a threshold for political parties. What was the IEC’s position on ICs gaining a seat in the NA? It would also create some stability in coalition formation going forward. What was the IEC’s proposal on such a threshold?

Mr Michalaki repeated his question. The presentation began with references to certain jurisdictions or certain parliaments having a threshold. Such a threshold would have an impact on the number of ICs that could be elected to Parliament. On the other hand, such a threshold might bring more stability to future coalitions. What was the IEC’s position on the introduction of such a threshold?

Mr T Dodovu (ANC, North West) appreciated that the IEC had tried to simplify its explanation of the seat calculations, and tried its best to help the Members understand how to calculate the seats, both in the NA and in the provincial legislatures. He imagined that while the Bill was “so technical and difficult” to Members, what about an ordinary citizen and an ordinary voter? He hoped that once the process was concluded, the IEC needed to embark on a rigorous campaign to educate ordinary South Africans on how that particular process worked. He felt it would be to the benefit of people as well, especially given how the Bill had attracted a lot of interest. He also wished to thank the IEC and everyone involved in the Bill process. Parliament was only given two years to rectify the defects in the legislation that was declared unconstitutional. Given the nature and the complexity of that legislation, two years was “too little”. He knew of many other laws which had been around for five or six years, and those were not as complex as the Electoral Amendment Bill. He thanked all of those involved in the Bill process for simplifying the Bill, and for working hard in helping the SC to be constitutionally compliant in that respect.

On the number of party agents, there had been a lot of talk about the number of party agents who needed to be present at an election to represent both political parties and ICs. Did the IEC think it appropriate that there must be a specific provision in the Bill that addressed the issue of party agents per voting station?

Mr Dodovu asked about the fee that must be paid by ICs and political parties. There had been “an outcry” over how political parties were expected to pay less, and how those who were already registered had paid less. The ICs were “paying more”. Would the IEC look into that and find a way of addressing it to ensure parity?

He understood the forfeiture calculation and the re-allocation of seats after that. He asked if his understanding was correct: Based on what had been presented to the Committee, did it suggest that in South Africa going forward, the country was not going to use that system used elsewhere, specifically the electoral threshold? Such a system required that each candidate must receive a minimum share of votes.
 
He felt that there was a problem in relation to the formula itself. As he understood the presentation, the ICs would only participate in competing for regional seats, and not for complementary seats. Would that create a problem, where people would say that they were being excluded from the complementary seat participation?

The Chairperson asked about what transpired out of the process from the Portfolio Committee on Home Affairs around the IEC regulations, regarding the signatures for political parties. What had been presented that day was also a recommendation from the IEC. She understood the issue of amending the regulations to address the issue of signatures, as opposed to making that proposed amendment. She asked for clarity on that issue.

IEC’s Responses

Mr Moepya expressed that there had been a significant amount of interest in the Bill. It had not been so much the simple writing of the law, but instead the technical part of how seats were allocated. It was unprecedented, and the IEC had never had that situation. That was why today, it was as if meeting participants were “attending a lecture in mathematics or statistics”. It was unfortunately what it was, and what had to be dealt with. He noticed comments from three different Members saying that not everyone was mathematically inclined. That was what made things difficult, and what made that Bill complex, e.g. when people asked about how seats were allocated, and one explained, but then lost people in the process. People then simply said that the IEC was going to take votes from ICs and give those votes to parties. Through explaining the formula, people would come to realise that that was the myth: There was no vote intended for one that would be gained by another. Unfortunately, it was a myth that was widespread. The law did not say that that was so in the Bill. When the IEC was dealing with parties, there was a general proportion that was almost cleaner than what South Africa had now. The fact that one had ICs introduced “disproportionality”. But the IEC still needed to restore proportionality at the end. That was an issue that all stakeholders had to accommodate. In so doing, there were certain things that would be gained, and things that would be lost. He also commented on the issue of votes being discarded. There was the myth that ICs “bled” from the discarding of votes. Parties did the same. If a party got 70 000 votes, but if it needed 60 000 votes to get a seat, then it would get only one seat. The party would discard those 10 000 votes because those votes would not get them another seat. ICs also needed a certain amount of votes to get a seat. If ICs gained more votes than needed to get a seat, then those votes were discarded. There was no disparity in dealing with one as opposed to the other. Those were matters that were in the public domain, and the IEC trusted that in the process that the SC would be taking, the public would truly get to see the difficulties that the IEC, the Committee, and all other stakeholders were presented with in dealing with the matter of the Bill.

Mr Mamabolo stated that he was with Mr Masego Sheburi, Deputy CEO: Electoral Operations, IEC, and Ms Melanie du Plessis, Manager: Business Systems, IEC.

Mr Mamabolo responded on whether the fact that ICs were allowed to contest multiple regions meant that by design, one would have a re-calculation. That depended on whether ICs won multiple seats. Where there had been multiple seats won, a forfeiture calculation was mandated. He did not know what the incidence of such re-calculations was going to be. The IEC could only deal with that post-election, when it knew how many ICs had won multiple seats. On the desirability, feasibility, and practicality of a constituency-based system, it was not the IEC’s station to determine for South Africa the type of electoral system that needed to be employed. The Constitution reserved that role to Parliament. The IEC had offered itself to technically advise on the practicality of whichever option Parliament wished to implement. In the beginning, when the ConCourt issued its judgement, the IEC presented Parliament with timelines and said that if Parliament was inclined to implement a constituency-based system, that would be the timeline. If Parliament was not inclined to implement a system based on constituencies, then it would have a different timeline. Where things were at the moment, ahead of the 2024 elections, “the horse had bolted”, in the IEC’s view, in relation to those timelines that the IEC had presented to Parliament in 2020. The IEC was not making the choice about electoral systems. It was merely saying, “given the timelines that it had presented to Parliament, drawing up the boundaries now, setting up a law, facilitating a delimitation, and setting up an institution to do the delimitation, etc. would not afford the IEC enough opportunity ahead of 2024 to do all that was necessary”.

On the legal possibility for an independent to contest several regions, although the IC was contesting in the region, they were also contesting the national Parliament, which was a constituency, in a sense. It should be possible for an IC to contest from any point in the country. But it was not a legally mandatory position that an IC must exercise an election, and say if they wanted to contest multiple regions or not. Those were decisions that an IC would have to make for themselves and decide accordingly.

On the filling of vacancies, the IEC believed that a by-election as a methodology to fill a vacancy was impractical because it meant that one would have province-wide by-elections involving significant campaign costs for parties and ICs, as well as a significant outlay of resources by the IEC. If the local government by-election regularity was anything to go by, then it might mean that every quarter, for some provinces, there was a province-wide by-election.

Mr Mamabolo observed that as far as political parties were concerned, the reserve list that they had, as managed by the Secretary of the Legislature, nothing changed in respect of that. With ICs, a re-calculation excluding the votes of the IC who caused the vacancy would be done. Based on the outcome of that calculation, either a party or another independent may get a seat, depending on the numerical number of votes they received at election time. One was not basing the calculations on anything other than the numerical votes received at the time of elections. One was giving effect to the will of the voter in that region. It was correct that as vacancies occurred, and recalculations were done, it was possible that one was moving away from proportionality. It was an “inevitable consequence” of having independents as part of the electoral framework. The IEC said from the beginning that introducing independents would have a disproportionate effect. That was one manifestation of that disproportionality effect. The most important thing was that contestants were treated fairly and with a measure of parity in the calculations. The IEC would base the calculation on the valid votes that each party got at election time.

Mr Mamabolo observed that there was no electoral system that did not result in the wastage of votes, because not every vote led to representation. Once one accepted that it meant that all electoral systems had a degree of wastage. Different families of systems had high or low propensities for wastage. The proportional representation system proposed in Schedule 1A was among the system with the least amount of wastage. It did not completely remove it, but it was one of the systems in the world with the lowest level of wastage. He gave an example: In region A, the quota of votes per seat was 50 000. A party or IC then got 35 000 votes. It meant that that 35 000 was not enough to get that contestant a seat, be they a party contestant or an independent contestant. Because those 35 000 votes were not resulting in an allocation of a seat, it was wastage. Similarly, if the quota remained 50 000, and a party or independent got 55 000 votes, then it meant that the contestant got a seat with the 50 000 votes, and there was a residual of 5 000. But that residual of 5 000 did not lead to another seat. Again, there was a wastage of votes. Even in the PR part of the calculation, the formula exhibited a propensity for less wastage of votes, but there was still wastage. In a constituency-based system, for example, if one had a simple “first-past-the-post” constituency-based election, assuming that there were four candidates contesting in a geographic constituency. If candidate A got 50 000 votes, candidate B got 40 000, candidate C got 30 000, and candidate D got 20 000, it meant that candidate A had won the constituency. All the other votes for candidates B, C, and D were a waste. That was because one took the candidate with the highest number of votes in the first-past-the-post system. In his view, there was no system that did not have wastage. The issue was what the degree of wastage was.

On signatures, the Bill as it stood said that the requirement for signatures was applicable to ICs. The IEC said that the reach of that provision must apply in the same way to political parties with no representation in a legislative body. By so doing, one would bring parity of treatment to political parties that did not have representation and ICs without representation. Initially, the IEC was of the view that one could bring that parity of treatment through the regulations. But on reflection, one wanted to have the equality of the weight of the statutory instrument. One could not, in one case, use a higher statutory instrument, which was an Act of Parliament, and in another case use a regulation, which did not have the same weight as an Act of Parliament. That kind of situation would be unequal treatment in and of itself. One wanted to attain parity of treatment, and of the weight of the statutory instrument used, to realise that parity. That was what the IEC was dealing with.

The time allocated to the Committee “was a matter outside the purview of the IEC”. Mr Mamabolo observed that the interest of the IEC was that it needed a settled electoral system for it to be able to organise the orderly conduct of the 2024 election. The longer it took the country to determine and finalise an electoral system, the less time was available to prepare for an election. If it had less time, the IEC could not guarantee the quality of an election. Based on what was finalised by Parliament, the IEC needed to rewrite its business applications to be in accord with the new scenario. It needed to rewrite the candidate nomination system; the results system, and other ancillary systems (e.g. training and logistics) to be in accord with the new electoral system.

On vacancies, in order to get to perfect proportionality, one would need to allocate all of the seats in the first allocation. That would give one a better chance to reach perfect proportionality. But as soon as one moved away from the first allocation to the second allocation, where one considered remainders, it meant that those contestants were beginning to vie for a seat at less than the quote of votes. Therefore, disproportionality was introduced. That was a consequence of the electoral outcomes. It was not a design to impair the interests of any contestant; it was just a logical consequence of the outcomes of an election.

On the electoral threshold, the Bill as it stood did not propose the introduction of an electoral threshold. There was no formal electoral threshold proposed. All one needed to do was achieve a quota of votes per seat. There was no formal threshold that said, e.g., the first condition one must reach is 5% of the votes before one is qualified for consideration.

On party agents, it was part of the IEC’s electoral architecture to have party agents observe all electoral processes. The IEC remained committed to that level of transparency. Having the agents had served the country well, and it was not something that the country could jettison at that point. However, defining the number of agents in the Act could have unintended consequences, e.g. saying that there needed to be two per party or another number. Arrangements would remain in terms of the regulations to work out a system of giving every electoral contestant an opportunity to observe elections given the limitations of space, and given the limitations induced by the number of contestants. The IEC did not know how many people would be contesting. For instance, in Gauteng in 2019, for the provincial legislature, there were 48 parties. If one multiplied that by two, that would give over 100 party agents. There were facilities that could accommodate that number, but there were also facilities that would not be able to accommodate that number. One had to work out a system together with the National Party Liasion Committee (NPLC) of giving everybody a fair opportunity to observe within the principle of total transparency in the process. There was no intention to say that parties and ICs were not going to observe elections. That was the antithesis of the IEC’s history of elections in South Africa, and it was not something intended to be jettisoned anytime soon.

Mr Mamabolo observed that the deposits were not determined in the Act. The IEC would have to, by way of regulations, set those deposits. The IEC would have a public process to ensure that there was broad consultation with all electoral stakeholders, political parties, ICs, and other members of society who may wish to bring their views to bear on the ultimate determination of the IEC. There were no deposits set yet. That was left to the IEC to determine at a later point. There was no doubt that more than at any point in South Africa’s electoral history, there was “massive” public education on the electoral system required. Clearly, it was a very complex system that had to be simplified for the population, and it was going to be incumbent upon the IEC, political parties, and the whole of the state to mount a public education campaign on the revised electoral system.

Mr Moepya mentioned the moral problem that the IEC might sit with at the end of the term as opposed to the beginning of the term. It was easier said than done to say that one of the major challenges one had, which the IEC had never had to deal with, was filling vacancies. Unless there was a nationwide by-election, the IEC would have to improvise a system. The view that was placed in the Bill was to say that the will of the people for that period must be adhered to as far as possible. When an individual that people had voted for, with his or her set of campaign policies, was no longer available, it meant that the next best person represented the will of the people.

Ms Love commented on the effect that a replacement of an IC, and the number of ICs, would have on proportionality. She was not sure if she could deal with that more effectively than her colleagues had. She wanted to say that the IEC was clear that the introduction of ICs into the national and provincial electoral space was new. Thus, as the IEC had done as far back as 1994, and certainly since the current electoral legislation, the IEC had reviewed the system. It would expect, without question, for there to be a review, to make sure that it limited any weakening of proportionality. As Mr Mamabolo said, the IEC could not expect to have perfect proportionality at any point. In response to Mr Dangor, she said that MPs were looking at the electoral system continuously. There was a big discussion to be had at a national level about how the system could be strengthened, and how accountability could be dealt with. That was in the domain of political leadership, both in Parliament and out of Parliament. The IEC would respect those conversations, and do everything it could to make what was decided on as realistic and implementable as possible.

Ms Love said that the issue of public education was something the IEC was mindful of. That was not just education in relation to democracy, but also voter education. The difficulty that would possibly be faced was that in the heated moments of debate on that legislation, there were things that had been said that gave the impression that some of the mathematics was a new phenomenon. It was not new. The IEC had been dealing with mathematics, proportions, and statistics right from the outset. The IEC dealt with it in 2021 when it dealt with local government elections. It might be that a teacher teaching English, and who wants to go and vote, might not understand the Droop calculation, or exactly how the different quotas were reached. She did not think that if the teacher did not understand the Bill, the teacher would have necessarily understood the issues around the local government processes. The Committee had heard Mr Mamabolo speak; he was “becoming a professor of mathematics and statistics”. Ms Love was sure that he would be willing to engage with many people. The important thing was to make sure that the IEC got it as best as it could in ensuring equitable treatment and ensuring that it dealt with proportionality. That was what underpinned the advice of the IEC up until then.

Mr Moepya remarked that the Bill was a matter that people talked about “in a very difficult way”, and they said things that were not supported. The IEC was constrained to deal with such matters from where it was. But the IEC thought that a platform such as this Committee meeting would help to educate people. Some of the things that the IEC heard were concerns. The refinements it suggested came from the comments and constructive criticism that had been gained from the public. The IEC committed to engaging with such criticism. But there were many allegations being made that were not supported by what the IEC had presented to the Committee. He thought that the Committee and the IEC would have to engage with those matters in the best way possible. The IEC committed to remaining available to the Committee, and to explain anything that was technically important for the IEC to explain. 

The Chairperson thanked the IEC and its support staff for the presentation and the engagement with Members. The Committee would bear the proposed amendments in mind as it engaged further on the public comments received on the Bill. The closing date for comments was that day (9 November 2022). Today’s meeting was not the end of the Committee’s engagement with the IEC on the Bill. She said that as public comments came in on issues related to the IEC, the Committee would engage further with the IEC.

Briefing by the Department of Justice and Correctional Services on its response to the public submissions on the Drugs and Drug Trafficking Amendment Bill [B19-2022]

The Chairperson said that the closing date for comments on the Drugs and Drug Trafficking Amendment Bill [B19-2022] was 4 November 2022. The Committee only received one submission on the Bill.

Mr Sarel Robertse, State Law Advisor, DoJ&CD, presented the submission, and the responses from the DoJ&CD. There was one submission, which included the following matters: Rewards for the public for informing law enforcement about the activities of drug dealers and drug sellers; increased sentences for senior government officials involved in drugs and drug trafficking (such as from the South African Police Service [SAPS], justice, metro police, and law enforcement); the suggestion that a person in the country illegally needed to be deported upon receiving a sentence for a drug-related crime; and the suggestion of using a “drug detector machine” to detect drugs on people within a certain radius of the machine.

The Chairperson reminded Members that in the meeting of 12 October 2022, the Committee sought clarity on the delays in introducing the Bill to Parliament, given the ConCourt deadline of 17 December, as well as the level of consultation undertaken in relation to the Bill. The DoJ&CD responded that the process to introduce the Bill started in April 2022. The socio-economic impact assessment procedure had to be followed, and it had to be approved by the Justice, Crime Prevention and Security (JCPS) structure. The Department then obtained Cabinet approval and then introduced the Bill. SAPS and others were also consulted on the Bill. The Department advised that the Bill was only addressing the ConCourt matter and would address other matters at a later stage.

The meeting was adjourned.