Mental Health Care Amendment Bill: final mandates; Electoral Amendment Bill: briefing

Meeting report

Final Mandates on Mental Health Care Amendment Bill [B39B-2012]
Ms D Rantho (Eastern Cape, ANC) said that the mandate from the Eastern Cape was still coming as it had not been signed as yet. The House was sitting today, so the Mandate would be signed today.

Mr W Faber (Northern Cape, DA) read that the Free State Legislature had deliberated on the Mental Health Care Amendment Bill [B39B-2012] on 13 September 2013, and voted in favour of the Bill. The Speaker had signed the Mandate.

Ms B Mncube (Gauteng, ANC) read that Gauteng Legislature had deliberated on the Mental Health Care Amendment Bill [B39B-2012] on 4 October 2013, and voted in favour of the Bill. The Deputy Speaker had signed the Mandate.

Ms Rantho read that the Kwazulu-Natal Legislature had deliberated on the Mental Health Care Amendment Bill [B39B-2012] on 17 September 2013, and voted in favour of the Bill. The Deputy Speaker Honourable ME Mthimkhulu, signed the Mandate.

Mr M De Villiers (Western Cape, DA) read that the Limpopo Legislature had deliberated on the Mental Health Care Amendment Bill [B39B-2012] on 7 October 2013, and had voted in favour of the Bill. The Speaker had signed the Mandate.

Ms Rantho read that the Mpumalanga Legislature had deliberated on the Mental Health Care Amendment Bill [B39B-2012] on 18 September 2013, and had voted in favour of the Bill. The Speaker had signed the Mandate.

Mr Faber read that the Northern Cape Legislature had deliberated on the Mental Health Care Amendment Bill [B39B-2012] on 4 October 2013, and had voted in favour of the Bill. The Speaker had signed the Mandate.

Mr S Plaaitjie (North West, COPE) read that the North West Provincial Legislature had deliberated on the Mental Health Care Amendment Bill [B39B-2012] on 26 July 2013, and had voted in favour of the Bill. The Speaker had signed the Mandate.

The Chairperson said that eight provinces were in favour of the Mental Health Care Amendment Bill [B39B-2012]. This was while still waiting for the Eastern Cape to send their Final Mandate.

Mr De Villiers said the Northern Cape Final Mandate had stated that: ‘The Committee supports the Mental Health Care Amendment Bill’. It should have been: ‘The Legislature supports the Mental Health Care Amendment Bill’

The Chairperson said that it was probably an oversight and asked for guidance as to how to proceed.

Ms Rantho said that the letterhead had the ‘Portfolio Committee on Health and Social Development’ logo.

Mr G Rhoda (Parliamentary Legal Advisor) said that he had already consulted on the matter. The Portfolio Committee referred to on the letterhead was that of the Northern Cape Legislature. Some legislatures referred to their committees as Standing Committees, and others referred to them as Portfolio Committees. There was therefore no problem with this.

Ms Mncube said that therefore there was technically no vote by the Legislature as this was an agreement by the Committee only. Only seven provinces had therefore voted in favour of the Bill [B39B-2012].

Ms Rantho agreed with Ms Mncube.

The Committee was in agreement with this proposed interpretation.

The Chairperson read the Committee Report approving the Mental Health Care Amendment Bill [B39B-2012].

Mr De Villiers supported it and Ms Mncube seconded. The Committee Report was adopted.

The Chairperson announced that the Minister, Ms Naledi Pandor, and the Deputy Minister, Ms Fatima Chohan, were unable to attend the Electoral Amendment Bill brifing, and had extended their apologies.

Electoral Amendment Bill [B 22B-2013] The Independent Electoral Commission (IEC) Briefing:
Mr Sy Mamabolo, IEC Deputy Chief Electoral Officer: Electoral Operations, went through the clauses (see document). Clause 6 and 7 had the most significant amendments as they dealt with special votes.

Clause 6 (special votes) removed categories of voters outside of the Republic, and was brought into line with the judgment of the Constitutional Court in the Richter case (CCT 03/09 and 09/09). The clause brought parity between the Act and the Municipal Electoral Act (27 of 2000) by introducing a special voting dispensation for any person who was absent from the voting district on Election Day. The clause substituted Section 33 of the Act in order to provide for the Commission to allow a person to apply and cast a special vote, prior to election day, in the election for the National Assembly (NA), if that person could not vote at a voting station in the voting district in which he/she was registered as a voter, due to specifically outlined reasons.

Clause 6 (Special votes – National Assembly) - the proposed Section 33(3) provided for the persons who intended to be absent from the Republic to vote on special voting days in the voting district before proceeding abroad. Such persons must notify the Chief Electoral Officer (CEO) of their intended absence within 15 days of proclamation. Section 33(4) provided for persons who were registered in voting districts in the Republic, but who would be outside the Republic on Election Day. Such persons should notify the CEO of their intention to vote and the mission where they intended voting within 15 days of proclamation. Section 33(5) provided for special votes for persons registered on the segment of the voters’ roll for persons ordinarily resident outside of the Republic, and such persons should notify the CEO of their intention to vote and the mission at which they intended to vote. Section 33(6) proposed votes cast in accordance with subsections (4) and (5), i.e. votes cast outside of the Republic, would for the purposes of Schedule 1A be counted nationally. Section 33(7) provided that the Commission should prescribe procedures for the application of special votes for the NA.

Clause 7 (Special votes – Provincial Legislature) – inserted Section 33A, which provided for the Commission to allow a person to apply for and cast a special vote, prior to election day, in the election for provincial legislatures, if that person could not vote at a voting station in the voting district which he/she was registered as a voter due to specific circumstances. The proposed Section 33A (2) was a general provision for all persons who would be absent from the voting district on Election Day and, if approved, would vote within the voting district on a special voting day. The proposed Section 33A (3) provided for persons who intended to be outside the Republic on Election Day, but wished to vote in the voting district before going outside the country. Such persons should notify the CEO within 15 days of proclamation of their intention to vote before proceeding abroad. Section 33(4) conferred the authority on the Commission to prescribe n procedures for application of special votes for provincial legislatures.

Mr Mamabolo said that the National Party Liaison Committee was the only institution consulted and that the Bill had been published for public comment. There would be substantial financial implications related to the registration of voters outside the Republic, and the administration of special votes both inside and outside the Republic.

Discussion
Ms Mncube asked for clarity on the separation of the votes between the National Assembly and the region. She asked what was meant by ‘region’.

Mr Mamabolo replied that Schedule 1(a) of the present Act referred to provinces as regions, but in effect regions meant provinces.

Ms Mncube referred to Clause 6 which allowed a person to have a special vote if s/he was not going to be in the voting district where registered on the day of the vote. It was often found that retail stores were open on voting day. These retail stores were full of casual workers and they did not get time to vote. She asked if they qualified to apply for special votes to exercise their democratic rights.

Mr Mamabolo replied in the affirmative and added that if this Bill was passed, anyone who would not be in one’s voting district could apply for a special vote. This included casual workers. However the Electoral Commission had engaged with the retail community to persuade them on the matter. At present election day has been declared a public holiday, so this allowed everyone to vote.

Mr De Villiers asked for clarity about the word ‘political entities’ in Clause 4. This was unclear because a ward did not belong to a political organisation. It was actually a ward in a Municipality. He asked why those words were used.

Mr Mamabolo replied that use should have been made of the words ‘political constituency’. South African law stated that one should register where one was ordinarily a resident, and that voting district linked one to a ward or political constituency. The words were not used here to mean a political entity belonging to a party, but a political entity in the sense that parties could contest residents in that geographic constituency.

Mr Faber asked how proof of registration would be obtained with Smart ID cards especially in rural areas.

Mr Mamabolo replied that a separate receipt would be made available on which proof of application would be placed for those persons who had smart cards. During the elections, voting stations would have receipts, so person who brought Smart cards would get a receipt.

Mr Faber asked the IEC to differentiate between elections of the National Assembly and the provincial legislature. If it was not a problem to vote national, why could one not have a provincial vote if one was outside of the Republic?

Mr Mamabolo replied that this was a complex constitutional issue. Inside the Republic, voters could be linked to a province by their place of ordinary residence. The same could not be said for voters outside of the Republic. There was therefore no obvious nexus for example between a person who was ordinarily resident in Perth and a person who was ordinarily a resident in Canberra, to a province. What gave them nexus was that their citizenship linked them to the nation or the county. This was why they needed to vote in an election of the National Assembly and not of a province – as they were not living in that province; they were living outside of the country. They therefore did not have that connection with a province or municipality and with wards, but they did have a connection at a national level due to their citizenship.

Mr Mamabolo said that the second issue was the fact that if one was in the country and one voted outside of one’s province, one could only vote for the National Assembly. The Commission was conscious not to have disparities in the special voting dispensation. An example of such a disparity would be where voters outside the Republic were allowed to vote in a province through a provincial ballot, but South Africans in the country but outside of their province, only got a national ballot.

If one applied for a special vote, a symbol was placed against the name of such a voter when the ballot was sent. When it came back, there was a need to verify the owner of the ballot, and then go back to the voters roll to see if the relevant person had turned up at the voting station. If the relevant person’s name had not been crossed out, then it meant that ballots would be outside the system and the Commission for a very extended period. The credibility of the postal system could not be vouched for and was uneven across the country. Therefore if one had to wait for ballots in the postal system, one would either have to do special votes three weeks before the election, or delay the counting of ballots by three weeks in order for all ballots to arrive at the correct voting stations. There was therefore an issue of ballots being outside the control of the Commission for at least two weeks and that was a threat to the credibility of the process.

Mr Mamabolo said there was a need to be conscious that the use of the voters roll was not removed in the electoral process because it was the only document that ensured that double voting was avoided.

Mr Faber asked about the availability for voting outside of South African missions in other countries.

Mr Mamabolo replied that international law provided that the Mission was the territory of the Republic so South Africa law applied in the territory of the Republic. But South African law did not apply outside of the Mission, so the IEC was hamstrung by international law.

Mr Plaaitjie asked if the IEC had looked at the size of voting districts.

Mr Mamabolo replied that some were small but were linked to the functions of the infrastructure in those communities. The Electoral Commission did not own the voting stations; it used what it found. It did of course augment what was there. The IEC was looking into the issue of temporary voting stations. In the past parties had managed to come to an arrangement if places were too small, and observed different times.

Mr Plaaitjie asked for clarity on the use of passports

Mr Tsietsi Sebelemebe, Director: Legal Drafting: Department Home Affairs, said that passports would be applicable to those who are registering to vote and were ordinarily resident outside the Republic. Those outside the country needed to have a valid South African passport to ensure that voters were confirmed as citizens of the country.

The Chairperson asked which countries would be participating and the number of people in those countries who would be participating in the elections.
 
Mr Mamabolo replied that South Africa had 124 Missions throughout the world and all of them would be used for registration and for voting. There were countries where formal diplomatic relations did not exist so registration and voting could not be allowed there.

The Chairperson asked why the National Party Liaison Committee was the only institution consulted.

Mr Mamabolo replied that the IEC had publicised the Bill for public comment through the Ministry of Home Affairs and submissions were made over and above consultation with the National Party Liaison Committee. The National Party Liaison Committee was basically a structure where the Electoral Commission consulted with all political parties in the country. The Bill was also published for public comment through the Ministry. The Portfolio Committee on Home Affairs had also published the Bill for public comment and a number comments had been received which the Committee had used in arriving at this version of Bill.

The Chairperson asked for more information about practical procedures for notification of the Electoral Commission CEO about wanting to cast a special vote.

Mr Mamabolo replied that within 15 days after the President had proclaimed an election day, all persons outside the Republic could send a fax or make a website application saying that they wished to register to vote on the special voting days, and state where they would be voting. An application form has been developed on the website. A notification would be sent to such applicants by fax or email.

The Chairperson asked for clarity about Clause 6, which referred to voters outside the Republic; and for clarity about the Richter case.

Mr Mamabolo replied that just before the elections in 2009, Mr Richter had approached the Pretoria High Court and said that he was outside of the Republic working on a contract basis. When his contract came to an end he intended return to South Africa. The Electoral Act did not allow persons in those circumstances to vote outside of country. It only provided for people who were on business trips, who were attending school outside the country, attending an international sporting event or persons working for government and members of their household. The Constitutional Court stated that those categories were unconstitutional and all South Africans outside of the country should be allowed to vote. The Bill removed those categories and made provision for all South Africans ordinarily resident outside of the country; even those resident inside the country but who would be outside the country on election day, to notify the Electoral Commission CEO of their intention to vote and where they intended voting.

The Chairperson asked for information about Clause 5 and its reference to voting for awaiting trial prisoners.

Mr Mamabolo replied that the provision did not make a distinction between sentenced and un-sentenced prisoners. The problem with awaiting trial prisoners was that they move around a lot between facilities. They were not excluded from the process.

The Chairperson again raised the issue about shop owners who sometimes did not give employees time off to vote. This situation was rife and included farm workers. The Department of Home Affairs should assist and look at this serious challenge.

Ms Mncube said that even in 2011 there was a commitment from the IEC to talk to business people. These business people did not listen and threatened workers. Most of them were casual workers. Something had to be done about this.

Mr Mamabolo replied that the IEC accepted that there was a challenge with shop owners. The sentiment from this Committee would be conveyed to the Commission.

Ms Mncube asked about voting stations with long queues; if voters should be advised to go to other voting stations in the district; and what about voting stations running short of ballot papers.

Mr Mamabolo replied that when people saw long queues they shopped around for voting stations with shorter queues. Therefore voting stations were provided with extra ballot papers. The IEC was in the process of developing a Ballot Management Strategy for this election to prevent a situation where voting stations ran out of ballot papers.
 
Ms Rantho asked about Smart ID cards. She asked if this process could not be improved, and if there were perhaps computers linked to other voting stations in the district to verify when persons had already voted, beside the receipts that were given for Smart card holders.  

Mr Mamabolo replied that there were close to 22 300 voting stations in the country and there was no connectivity, which linked voting stations across the country as this would involve a substantial cost. This was why the Smart card would be scanned and the person would get a receipt with some security features. On election day the Smart card would be scanned and the number on the voters roll would be clear. The Smart ID card held no risk.

Ms Rantho asked if the IEC was able to do anything about persons registered to vote, but who found themselves in hospital on voting day.

Mr Mamabolo replied that if a person was in hospital they would have to apply for a special vote so that the IEC officials could come to hospital. If a person was in a hospital in the same province where they were registered, they would get two ballots; if they were in a hospital outside of their province, they would only get the national ballot.

Ms Rantho asked what would happen with policemen who found themselves in places other than where they were supposed to vote. Could the Bill have a clause allowing for a special day for policemen to vote?

Mr Mamabolo replied that police officials had a category which allowed for them to apply for a special vote, and they could vote before their deployment. On the special voting day they could go to any voting station and cast their votes. Alternatively, they could apply according to section 24(a). This meant that wherever they were deployed, they could go to any voting station and apply to vote in terms of section 24(a).

Mr Plaaitjie asked how involved the IEC was with Municipal Demarcation Board (MDB) and its processes. This was a tenuous arrangement as voting processes often became a battlefield. It was often found that the MDB had removed people from segments of the voters roll and did not place them anywhere. When MDB was questioned, it did not offer any help. Why was this situation allowed? Municipal wards had been shifted and used for other purposes.

Mr Mamabolo said that this was a major concern. The IEC did have a close working relationship with the Board. The question that should be considered was whether there should be static wards – wards that did not change in municipal elections. The current challenges would not exist with static wards. The counter argument to static wards was that the number of people who were registered in some wards grew, and others became depopulated. So the quality of the vote there could become a bit of an issue. However this matter should be placed before the Municipal Demarcation Board to resolve this problem of voting districts being cut by boundaries.

The Chairperson asked the IEC to confirm the dates for registration in November [i.e. 8 and 9 November].

Mr Mamabolo replied that the Electoral Commission would be launching the elections tomorrow on 9 October so all the dates, logos, songs and the media campaign would be unveiled then.

Ms Mncube asked for clarity about national, provincial and municipal votes.

Mr Mamabolo replied that if one voted within one’s province, one would get both a national and a provincial vote. If one voted outside of one’s province, one could only vote nationally.

Mr De Villiers asked for clarity about the Section 75 and Section 76 Bills and generally about how Bills were tagged as this Bill was Section 75.

The Parliamentary Legal Advisor said that Parliament was guided on the issue of tagging by Section 76 of the Constitution, particularly Section 76(3) which stated that a Bill had to be dealt with in accordance with either sub-section 1 or 2 if it fell within a functional area listed in Schedule 4. Schedule 4 had concurrent national and provincial competencies. Elections did not fall within a Schedule 4 function, nor did it fall within Section 76(3)(a) to (f). This was your Section 65, which dealt with laws dealing with provincial delegates at the NCOP. Neither was it a Section 163 which dealt with the recognition of national and provincial joint committees and so on. The legal team also took their lead from the recent Constitutional Court court case: Tongoane and Others v National Minister for Agriculture and Land Affairs and Others (CCT100/09) [2010] ZACC 10. This case asserted that there were two ways to determine whether a Bill should be dealt with in terms of a Section 75 process or a Section 76 process. The first was that it must in substantial measure fall within Schedule 4, and the regulation of elections did not fall within Schedule 4. Or it must fall within the sections that were listed under Section 76(3)(a) to (f). The provisions of this Bill did not fall within any of those. This was why it was tagged as a Section 75 Bill. Parliament took its cue from the Tongoane matter.

Ms Mncube asked for the IEC’s opinion on billboards regarding e-tolls being posted by a certain political organisation in Gauteng. She asked if this was in the line with legislation on politcal campaigning.

Mr Mamabolo said that according the Act complaints of this nature should go to the Electoral Court. This would be interesting as a test case.

The Chairperson said that the Committee should refer to Section 75 and Section 76 of the Constitution to understand what the tagging meant. This would also give the legal advisors time to advise the Committee about tagging. The next meeting would be on the 22nd of October with the legal advisors for a clause by clause deliberations on the Bill.

Consideration and Adoption of Committee Minutes.
The Committee Minutes of the 10 September 2013 were adopted.

The meeting was adjourned.