Outgoing Parliament leaves to-do list for new MPs as presidency clock ticks on Electoral Matters Amendment Bill

UPDATE:  

Opposition parties are meeting later on Tuesday to discuss their responses including court action, now President Cyril Ramaphosa signed off on the Electoral Matters Amendment Bill with the controversial funding formula change how represented political parties receive monies from state coffers.

A statement from the Presidency on Tuesday morning quoted Ramaphosa saying, “In a year in which voters are presented with the greatest diversity of electoral choice, the legislation that is now enacted constitutes tangible, material support for a vibrant, competitive, open and equitable electoral system and democratic culture.”

However, it remains unclear if this law in now in force. The legislation in Section 46 requires the president to also issue a proclamation setting the law’s commencement date, with the option of different starting dates for different provisions.

A request for comment on the commencement date to the Presidency was not responded to on Tuesday morning. The official Government Gazette notice and commencement date proclamation was not yet online Tuesday morning.

The above update to the article was added on 7 May 2024 at 10.45am.

Among the incoming new MPs’ first order of business will be to revive the Budget so it’s passed by the statutory end of July deadline. Now, in a final dash over two sittings, efforts are under way to whittle down outstanding matters before the 29 May elections. 

All outstanding matters lapse when Parliament’s term ends on the eve of an election, according to the national legislature’s rules. In 2024, that’s on 28 May.

However, the new incoming MPs can revive any item. Parliamentary practice and tradition have made this possible through a motion in the House.

In 2024, again, the Appropriation Bill must be revived to give effect to the national Budget, although the fiscal framework and the Division of Revenue Bill that allocates funds to provinces and municipalities have already been adopted. 

The 31 July deadline is a tough one; legislation requires the Budget to be adopted within four months of the start of the financial year on 1 April. In 2019 the Budget was passed on 25 July after an intense, compacted process that had observers questioning the extent of legislators’ oversight. 

In 2014, after a similarly compacted process, the Budget was passed on 23 July.

This year is in many ways complicated as the list of matters not dealt with is substantial – the Order Paper of 28 March had just over 90 items below the line; parliamentary lingo for matters before the House but not yet scheduled or concluded.  

On Thursday, and again in just over a week on 16 May, the National Assembly meets to deal with the most pressing and politically weighty items ahead of the elections. 

The Order Paper includes the justice committee’s report recommending a fresh search for a new deputy public protector; the removal of gender commissioner Mbuyiselo Botha for disrespectful and humiliating remarks about fellow commissioners, and the approval of changes to the parliamentary code of ethics.

The swathe of items for House approval also includes the public enterprises committee’s report on its inquiry into corruption and maladministration claims by ex-public enterprises director-general Kgathatso Tlhakudi over the 51% sale of SAA to the private Takatso consortium. 

Proceedings were tense as Public Enterprises Minister Pravin Gordhan insisted on the confidentiality of the deal, which has since been cancelled.

Read more in Daily Maverick: Confidentiality is not secrecy, says Gordhan, after MPs fall in line to keep mum on SAA deal

Read more in Daily Maverick: SAA-Takatso deal should be probed by Special Investigating Unit, MPs say, but Gordhan disagrees

Ultimately, the published committee report recommended that the police minister consider referring the SAA deal to the Special Investigating Unit (SIU). This was misplaced as the SIU requires a presidential proclamation for its investigations.

But if that report was not adopted, it would have lapsed. That’s effectively what’s happening to the Standing Committee on Public Accounts (Scopa) inquiry into the commentary on Eskom corruption by ex-CEO André de Ruyter. This means that, apart from media reports on hearings and the Parliamentary Monitoring Group’s transcripts, none of the MPs’ efforts is part of the official record of Parliament. That’s unless the new post-election National Assembly decides to revive and deal with it.

The recommended renewed search for a new deputy public protector could have been delayed if the House on Thursday didn’t adopt, and thus give effect to, the April 2024 justice committee report for a new search. 

Triggered after the previous deputy Kholeka Gcaleka was appointed protector, the process became bogged down when EFF MP Busisiwe

Mkhwebane failed to recuse herself in the interview with two applicants she had worked with. 

“The committee understands that there is very little time before the sixth Parliament rises ahead of the general election, which takes place on 29 May 2024, but given the circumstances set out in this report, recommends that the House resolve to begin the process to nominate a candidate for appointment as deputy public protector afresh,” recommended the justice report.

Once adopted, this is the marching order for the incoming MPs as the new legislators must also decide on reviving crucial other items not included in the next two sittings, according to Friday’s National Assembly’s programming committee.

Stuck in parliamentary interregnum is Scopa’s condonation of wasteful and fruitless departmental expenditure. If not revived and adopted by the new Parliament, the affected departments like Social Development, Mineral Resources and Energy, and Public Service and Administration must in effect start from scratch. Until condonation is adopted, the fruitless and wasteful expenditure remains on the departmental books.

Also stuck are 19 of the 20 international treaties, including World Trade Organisation (WTO) fisheries subsidies and double tax abolition agreements. Outgoing MPs are set to deal only with the African Charter on Human and People’s Rights on the Rights of Older Persons in Africa on 16 May. 

Alongside committee reports dating back to mid-2023 on study tours to London, Switzerland and elsewhere, also lapsing – unless the new MPs decide to revive them – will be some 35 petitions from South Africans so desperate for a hearing that they approached Parliament on issues like the lack of electricity, rubbish removal, sewage spills and housing.

However, in the two sittings over two weeks, the National Assembly is set to approve changes made by the National Council of Provinces (NCOP) to various legislation. Once approved, the Bills are sent to the president for signing into law and enactment. 

On Thursday, the Housing Consumer Protection Bill is before the House. 

On 16 May, the list includes approving the NCOP changes to the statistics amendment legislation, one of the new two-pot retirement system laws, the Basic Education Laws Amendment Bill and the long-in-the-making Public Procurement Bill.

It’s a full plate – and it still leaves a rather full in-tray for the post-election legislators to decide on whether or not to revive these matters.

Ironically, one item Parliament finalised against a ticking clock – back in February – is now stuck in the presidential in-tray. That’s the Electoral Matters Amendment Bill.

Read more in Daily Maverick: MPs approve electoral legislation for 2024 independents despite misgivings, and IEC needs a new commissioner

The Electoral Commission of South Africa (IEC) has said it needs the law in force before the 29 May elections.

Aimed at bringing independent candidates into the funding disclosure regimen, this legislation controversially changed the formula to funding from the state coffers for those represented in the national and provincial legislatures to 90:10, or a 90% proportional allocation and a 10% equitable allocation. Previously this was two-thirds proportional and one-third equitable, a spread more favourable to smaller parties. 

Opposition parties, including the Freedom Front Plus, IFP, United Democratic Movement and others, have threatened court action if this funding formula change is enacted.

Read more in Daily Maverick: Controversial election legislation rushed through Parliament may head to court if proposed 11th-hour talks fail 

Five weeks ago, opposition parties wrote to President Cyril Ramaphosa over their concerns. Nothing has emerged from this and the president has yet to sign the draft law and proclaim its commencement date. 

Now, the National Assembly is in a pickle, having to consider a stop-gap resolution to ensure that the declaration threshold (R100,000) and the maximum annual donations (R15-million) continue until replaced. This is to cover the potential legislative gap once Ramaphosa signs into law the Electoral Matters Amendment Bill, alongside a proclamation of its commencement. At that point, a resolution of the House must exist to allow the president to make the regulations which the new law sets out.

It’s the messy outcome of the Presidency sitting on legislation for weeks and months – exacerbated by the time pressure of the 29 May elections.

And it’s an example of Parliament having to assert its role in law-making, not just accepting ministerial legislative drafts, so it can ensure its integrity as the legislative arm of the state.

But for now, all that matters for South Africa’s political funding regimen is the IEC’s insistence that the Electoral Laws Amendment Bill must be enacted in law before 29 May. 

The clock is ticking. DM 

Read more in Daily Maverick: Elections 2024

This is a developing story.