12 March 2024

Honourable Speaker/ House chairs

The electoral Act 73 of 1998 was declared unconstitutional by the electoral court on….

The unconstitutionality was only in as far as it doesn’t allow Independent candidates to contest for National and Provincial elections unless they are members of a political party. The unconstitutionality was suspended for 24 months to allow Parliament to contest the defect.

Parliament did so and passed the Electoral Amendment Act 01 of 2023. This Amendment Act was gazetted on 17 April 2023. The consequence of passing such an act, allowing independent candidates to contest on National and Provincial elections, was that 5 different acts of Parliament needed consequent amendments since when they were passed, there were no independent candidates. The 5 (five) acts cater only for political parties.

The agreement between Home Affairs and the Portfolio Committee is that the consequential amendment of the five acts be done in one omnibus bill.

This is the Bill in front of this house today and it is titled Electoral Matters Amendment Bill.

This Bill amends certain sections of :

1. Electoral Act 73 of 1998 – The original act that regulated National and Provincial elections since 1999, before there were only court challenges.
2. The Electoral Commissions Act 1991 – the founding act of the IEC (Independent Electoral Commission).
3. The Electoral Commissions Act 2005 – which regulates the relations between the Public broadcaster and the political parties.
4. The Financial Management of Parliament and Provincial Legislature Act 2009 and finally
5. The Political Party funding Act no. 6 of 2018. Most of the amendments are technical in that the word independent candidate of independent representative are inserted in the act alongside political parties.

However, when it comes to the political party funding Act no. 6 of 2018 more need to be done to accommodate independents so that they too can be funded for their political activities and for participating in the National and Provincial elections.

The areas in the political funding act that needed attention were amongst others:

• The formula for allocating funds
• The original formula that is the 2018 Political Party Funding act was developed with only political parties in mind. Now we are going to have independents we believe a new formula is necessary so that independents can be appropriately accommodated.
• To have a relook at schedule 2 of the Regulations of political party funding which regulates the threshold at which donors have to be publicly declared and also the maximum amounts that can be donated to political parties by one donor in any one year.
• A relook at the regulation that empowers the President, acting on a resolution of the National Assembly may by proclamation in a gazette make regulations.

In perfining this work, the Department of Home Affairs was guided by section 236 of the Constitution of the Republic which reads as follows:

“To enhance multi-party democracy , national legislation must be provided for funding of political parties participating in National and Provincial legislatures on an equitable and proportional basis.

To this end, this Parliament provided a formula whereby 90% of the funds will be allocated on a proportional basis and 10% on equitable basis.

However, this formula was later changed to 2/3 proportional and 1/3 equitable which translates into 661/3 and 331/3 respectively.

In accommodating independents, a new formula was proposed whereby money is placed on each seat in Parliament and in the Provincial Legislatures, rather that on political parties whichever party (8 or whichever independent wins a particular seat will also be allocated the money for that seat.

Since there are 400 seats in the National Assembly it means each seat will be allocated 0,25% i.e 1/400 X 100%.

This last formula provide for only one aspect of the Constitution. It provides for 100% proportional representation i.e if you get 40% of the total seat you get 40% of the total funding.

Unfortunately if provides for zero equitable share as demanded by the Constitution and hence the formula could not be used.

The second formulas presently recommended by Parliament i.e 2/3 proportional and 1/3 equitable, does not comply with any of the requirements of the Constitution.

It is neither proportional nor equitable.

The only formula which comply with both requirements of the Constitution, i.e. both proportional and equitable is 90% / 10% original formula.