Parliament’s legal advisers are exploring the possibility of applying to the Constitutional Court for an extension of the December 10 deadline for parliament to adopt the Electoral Amendment Bill.
This would be the second application for an extension, the first being made in June when it was quite clear that parliament would not meet the June 10 deadline to adopt the bill. In that instance the court extended the deadline by six months.
Parliament’s senior legal adviser, Siviwe Njikela, told the National Council of Provinces’ (NCOP’s) select committee on security and justice on Wednesday that there were two reasons an application for an extension might be necessary.
The first was that there might not be enough time for the National Assembly’s portfolio committee on home affairs to consider the amendments to the bill made by the select committee before the National Assembly goes into recess from December 7.
The second reason was that the last day of work in 2022 for the Constitutional Court would be November 30 so it would not be available to consider the bill submitted to it by parliament unless chief justice Raymond Zondo gave an instruction for it to be dealt with.
Njikela said it would reflect badly on parliament if it failed to meet the deadline. “There is a real likelihood that the processes of parliament will not be finalised by [December 10].” A decision on an extension — which legal counsel for the department of home affairs agrees with — would have to be taken soon, he said.
The committee heard that the Constitutional Court does not take kindly to a late application for an extension.
The select committee is due to finalise its work on the bill on Friday and the NCOP is scheduled to consider it next week Tuesday.
Civil society organisations have been warning for months that parliament would have to seek a further extension because of the time constraints imposed by the department of home affairs in its late introduction of the bill into parliament. The Constitutional Court ruled in June 2020 that the Electoral Act was unconstitutional as it did not allow independent candidates to contest national and provincial elections, and gave parliament two years to adopt a bill providing for this.
In February 2021, home affairs minister Aaron Motsoaledi formed a ministerial advisory committee under chair Valli Moosa to investigate the possible modalities for the inclusion of independent candidates. But the bill was only introduced in parliament in February 2022.
Two new issues were raised during the select committee’s meeting on Wednesday. The one concerned the decision-making process of the panel that will be established by Motsoaledi in 2023 to investigate options for a comprehensive reform of the electoral system. The other was whether members of the panel would be free to express their views outside of the panel. Legal advisers will advise on these matters on Friday.
Motsoaledi asked legal advisers to advise on how the panel would make its decisions and whether there would be a majority and minority report, as was the case with the ministerial advisory committee. These two reports caused a lot of controversy as the department adopted the minority report and not the majority report, which advocated a constituency-based system. The minister told MPs that there was no provision for a majority and minority report in the terms of reference of the committee.
“I don’t want [the bill] to be silent on this matter,” he said. The bill must clarify whether the panel will recommend one or several options to parliament.
On the freedom of speech of panel members, Motsoaledi said if panel members were insistent on that, they should decline to be members. If the member disagreed with the panel’s direction, he/she should withdraw from it.
DA MP George Michalakis believed panel members should have the right of freedom of expression, but ANC MP China Dodovu insisted that this freedom must be exercised through the channels that created the panel, members of which should not be allowed to express their private views in public.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.