Parliament could apply to the Constitutional Court (ConCourt) for another extension in order to adopt the Electoral Amendment Bill.
The bill, which has to be finalised by 10 December, is currently before the National Council of Provinces’ (NCOP) Select Committee on Security and Justice.
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Parliament’s senior legal adviser Charmaine Van Der Merwe told the National Assembly’s Programming Committee on Thursday that the Select Committee on Security and Justice could propose amendments to the bill that may necessitate the public’s input.
This may result in Parliament not being able to process the bill, which was passed by the National Assembly last month, before the deadline.
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“We understand that the National Assembly and the Portfolio Committee on Home Affairs is on standby and will do what it needs to do to process those amendments.
“I think it is also prudent to alert that there might be some amendments that are considered to be material in nature and they may require a call for comment. In that event, Parliament will have to apply for an extension of the court deadline so there is a bit of pressure on this matter,” Van Der Merwe said.
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NCOP is scheduled to consider the bill with the Select Committee’s amendments next week Tuesday, 29 November.
The bill will then be sent to the Portfolio Committee on Home Affairs, which is expected to meet on Wednesday, 30 November, to adopt a report on the legislation.
Van Der Merwe, however, pointed out the Portfolio Committee on Home Affairs may either agree or disagree with the proposed amendments.
“It’s not as if the process is starting anew, the portfolio committee will be limited to the proposals made by [NCOP]. If there are material amendments [then] there will have to be a call for comment.
“That’s the possible delay that we foresee, it’s not even a given… the portfolio committee may decide not to accept those amendments or there might be a discussion and decision that it’s not material in nature [therefore] it is doesn’t have to be advertised,” she said.
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The legal adviser further said the extension, if necessary, will only be for three months.
“The Independent Electoral Commission [IEC] has confirmed that they would not be opposed to any extension. They know what is now expected of them [so] they can start preparing for the 2024 elections.
“It simply a matter of legislative process that is sometimes not certain and we have a constitutional duty to consider public input,” Van Der Merwe added.
Parliamentary legal adviser Siviwe Njikela informed the select committee on Wednesday that an extension might be necessary with the National Assembly set to go into recess on 7 December.
Njikela also told the committee that the ConCourt’s term for this year is ending on 30 November so the apex court may not consider the extension application beyond this date unless Chief Justice Raymond Zondo’s decides otherwise.
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“I just though we should highlight that a matter can be accommodated on the instruction of the Chief Justice, but that is a bit risky in the situation that we are in given that if we were not able to meet the deadline of term, it may likely reflect badly on Parliament.
“That’s why we were mulling over the idea of applying for an extension. There is a real likelihood that the processes of parliament will not be finalised by the 10th [of December],” Njikela said on Wednesday.
The bill will have to be voted and adopted by MPs in the National Assembly for the second time before it is sent to President Cyril Ramaphosa for approval.
It was previously proposed by National Assembly Speaker Nosiviwe Mapisa-Nqakula that Parliament proceed with the bill in its current form and adopt the legislation for the 2024 national elections.
Last week, Home Affairs Minister Aaron Motsoaledi also asked the select committee to consider including in the bill a provision for the establishment of a panel of independent experts to investigate the reform of South Africa’s electoral system, which will include a constituency-based system.
This, however, will only happen after the 2024 national elections.
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Van Der Merwe, meanwhile, on Thursday expanded on the matter.
“In general, we can include footnotes in legislation, but its normally of an explanatory nature. What is happening now is that there is a consideration for a proposal to be inserted in the bill that indicates that there should be a review of the legislation.
“This a normal legislative process, in fact it’s ideal that all legislation are regularly reviewed. So inserting a clause that says legislation must be reviewed and what the process will be for doing so is actually commendable.
“It won’t be done as a footnote, but if it is done it will be [included] in the amendment bill and not in the Act itself.
The bill introduced in January 2021 to amend the Electoral Act 73 of 1998 is to allow independent candidates to contest elections.