Electoral Amendment Bill sent to the President for assent

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The Electoral Amendment Bill was approved by the National Assembly on 20 October 2022 and referred to the NCOP for further consideration and concurrence.

The NCOP also approved it with further proposed amendments, and returned it to the NA on 29 November 2022 for further processing.

The NCOP proposed amendments to the Bill, including an amendment to clause 3, by proposing the inclusion of a further paragraph to section 27 of the Electoral Act, 1998, to address the disparity between party candidates and independent candidates.

The Bill currently only requires independent candidates to produce signatures supporting their candidature totalling 20% of the quota for a seat in the previous comparable election.

Parliament spokesperson, Moloto Mothapo, said the proposed amendment to this section now intends to provide that parties, who are registered but not represented in the National Assembly or provincial legislatures, will also have to produce the same amount of signatures in support of their party when intending to contest an election.

“Once the independent candidates and registered parties are represented in the NA or provincial legislatures, they would be exempt from this requirement. The NCOP further proposed amendments to clause 6 to bring the wording and requirements imposed on independent candidates to be aligned with the requirements now being imposed on parties by the amendment to clause 3,” Mothapo explained.

National Assembly approves Electoral Amendment Bill

21 Oct 2022

Other amendments relating to clause 21 of the Bill dealing with Schedule 1A, include:

• An amendment removing “most” votes and substituting this phrase with the phrase “highest proportion of votes”;
  
• An amendment in order to rectify the forfeiture calculation, as the Bill incorrectly excluded those independent candidates who have gained one seat from the calculation;
  
• An amendment to the calculation formula that will apply when an independent candidate must make a choice between either taking up a seat in the provincial legislature or the NA;
  
• Deletions to certain phrases that are redundant and errors that appeared in the Bill; and
  
• An inclusion of a new item 24(3), which is required in order to do a reverse forfeiture calculation, which is essential to protect seats mid-term, should a vacancy arise.

Mothapo said that the NCOP further proposed the inclusion of an entirely new clause 23 in the Bill (which will not form part of the Electoral Act) establishing an Electoral Reform Consultation Panel to investigate, consult on and make recommendations in respect of potential reforms of the electoral system.

“Given the nature of the NCOP’s proposed amendments, the Committee resolved to advertise the NCOP’s proposed amendments for public comment. The Committee also resolved that given the extensive nationwide consultation already conducted on the Bill; as well as the work still required by the Independent Electoral Commission to implement amendments before the next National Elections in 2024, it would not conduct public hearings again after calling for further comments on the Bill.

“Having considered the proposed amendments passed by the NCOP, the Committee tabled the report to the NA with the additional changes referred to above. The report was considered and passed by the NA today,” Mothapo said.

The Bill was initially warranted by the Constitutional Court judgment in the New Nation Movement NPC and Others vs President of the Republic of South Africa and Others case in June 2020, which ruled that the Electoral Act of 1998 was unconstitutional, to the extent that adult citizens may be elected to the NA and Provincial Legislature, only through their membership of political parties.

Due to the call for public comment on the NCOP’s proposed amendments and the time given for such public comment to be submitted, it became clear that Parliament would not be able to pass the Bill before the Constitutional Court deadline of 10 December 2022, and therefore the Committee resolved to urgently apply for a further extension of the deadline to the Constitutional Court.

The Constitutional Court granted Parliament an extension until 28 February 2023 to finalise the Bill.

The Bill will now be sent to the president for assent.