South Africa: Numbered Acts

NO. 51 OF 1996: ELECTORAL COMMISSION ACT, 1996

PRESIDENT'S OFFICE No. 1602.

4 October 1996

NO. 51 OF 1996: ELECTORAL COMMISSION ACT, 1996

It is hereby notified that the President has assented to the following Act which is hereby published for general information:-

ACT

To make provision for the establishment and composition of an Electoral Commission to manage elections for national, provincial and local legislative bodies and referenda; and to make provision for the establishment and composi- tion and the powers, duties and functions of an Electoral Court; and to

provide for matters in connection therewith.

(Afrikaans text signed by the President.) (Assented to 27 September 1996.)

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

ARRANGEMENT OF SECTIONS

Section

CHAPTER 1 Interpretation and Application of Act

Definitions 1

Application of Act 2

CHAPTER 2 Electoral Commission

Establishment of Commission 3

Objects of Commission 4

Powers, duties and functions of Commission 5

^{Composition of Commission and appointment of}

commissioners 6

Terms of office, conditions of service, removal from

office and suspension of commissioners 7

Chairperson of Commission 8

^{Conduct of commissioners 9}

Disclosure of conflicting interests 10

Meetings of Commission 11

CHAPTER 3 Administration, Staff and Accountability of Commission

Administration and staff of Commission 12

Finances and auditing 13

Reports by Commission 14

CHAPTER 4 Registration of Parties

Registration of parties 15

Prohibition on registration of party under certain circumstances 16

Cancellation of registration of registered party 17

CHAPTER 5 Electoral Court

Establishment of Electoral Court 18

Composition of Electoral Court 19

Powers, duties and functions of Electoral Court 20

CHAPTER 6 General provisions

Offences and penalties 21

Legal proceedings against Commission 22

Regulations 23

Repeal of laws, legal succession and transitional

^{provision 24}

Short title and commencement 25

CHAPTER 1

INTERPRETATION AND APPLICATION OF ACT Definitions

1. (1) In this Act, unless the context otherwise indicates-

(i) "chairperson" means the chairperson designated in terms of section

8(1); (x)

(ii) "chief electoral officer" means the chief electoral officer appointed in terms of section 12(1); (iii)

(iii) "Commission" means the Electoral Commission established by section

3(1); (iv)

(iv) "election" means any election for a national, provincial or local legislative body in terms of any law; (viii)

2. (1) This Act applies in respect of any election for national, provincial and local legislative bodies, and any referendum referred to in subsection

^(2).

(2) Notwithstanding anything to the contrary in any other law contained, the President may, after consultation with the Commission, by proclamation in the Gazette-

(a) declare that a referendum shall be held in order to ascertain the views of voters on a matter specified in the proclamation;

(b) determine that the referendum shall be held in the Republic, or in a part of the Republic specified in the proclamation, on a day or consecutive days and, subject to this Act, during the hours so specified;

(c) determine who shall be entitled, in accordance with this Act, to vote at the referendum; and

(d) determine what question or questions to ascertain the views of voters, must appear on the ballot paper.

CHAPTER 2

ELECTORAL COMMISSION Establishment of Commission

^{3. (1) There is an Electoral Commission for the Republic, which is}

independent and subject only to the Constitution and the law.

(2) The Commission shall be impartial and shall exercise its powers and perform its functions without fear, favour or prejudice.

Objects of Commission

4. The objects of the Commission are to strengthen constitutional democracy and promote democratic electoral processes.

Powers, duties and functions of Commission

5. (1) The functions of the Commission include to- (a) manage any election;

(b) ensure that any election is free and fair;

(c) promote conditions conducive to free and fair elections;

(d) promote knowledge of sound and democratic electoral processes;

(e) compile and maintain voters' rolls by means of a system of registering of eligible voters by utilising data available from government sources and

(f) information furnished by voters; compile and maintain a register of par-ties;

(g) establish and maintain liaison and co-operation with parties; (h) undertake and promote research into electoral matters;

(i) develop and promote the development of electoral expertise and

technology in all spheres of government;

(j) continuously review electoral legislation and proposed electoral legislation, and to make recommendations in connection therewith;

(k) promote voter education;

(l) promote co-operation with and between persons, institutions, governments and administrations for the achievement of its objects;

(m) demarcate wards in the local sphere of government or to cause them to be demarcated;

(n) declare the results of elections for national, provincial and municipal legislative bodies within seven days after such elections;

(o) adjudicate disputes which may arise from the organisation, administration or conducting of elections and which are of an administrative nature; and

(p) appoint appropriate public administrations in any sphere of government to conduct elections when necessary.

(2) The Commission shall, for the purposes of the achievement of its objects and the performance of its functions-

(a) acquire the necessary staff, whether by employment, secondment, appointment on contract or otherwise;

(b) establish and maintain the necessary facilities for collecting and disseminating information regarding electoral matters;

(c) co-operate with educational or other bodies or institutions with a view to the provision of instruction to or the training of persons in electoral and related matters; and

(d) generally, perform any act that is necessary for or conducive to that. Composition of Commission and appointment of commissioners

6. (1) The Commission shall consist of five members, one of whom shall be a judge, appointed by the President in accordance with the provisions of this section.

(2) No person shall be appointed as a member of the Commission unless he or she-

(a) is a South African citizen;

(b) does not at that stage have a high party-political profile;

(c) has been recommended by the National Assembly by a resolution adopted by a majority of the members of that Assembly; and

(d) has been nominated by a committee of the National Assembly, proportionally composed of members of all parties represented in that Assembly, from a list of recommended candidates submitted to the committee by the panel referred to in subsection (3).

(3) The panel shall, subject to subsection (6), consist of-

(a) the President of the Constitutional Court, as chairperson;

(b) a representative of the Human Rights Commission established by section

115(1) of the Constitution of the Republic of South Africa, 1993 (Act

No. 200 of 1993);

(c) a representative of the Commission on Gender Equality established by section 119(1) of the said Constitution; and

(d) the Public Protector established by section 110(1) of the said

Constitution.

(4) The panel shall submit a list of no fewer than eight recommended candidates to the committee of the National Assembly referred to in subsection (2)(d).

(5) The panel shall act in accordance with the principles of transparency and openness and make its recommendations with due regard to a person's suitability, qualifications and experience.

(6) If any person referred to in subsection (3)(b) to (d) should for any reason not be available to serve on the panel, the chairperson shall, after consultation with the remaining members of the panel, designate any other person as a member of the panel.

Terms of office, conditions of service, removal from office and suspension of commissioners

7. (1) The term of office of a member of the Commission is seven years unless he or she resigns or dies at an earlier date, or is removed from office in terms of subsection (3).

(2) The conditions of service, remuneration, allowances and other benefits of commissioners shall from time to time be determined by the President after consultation with the Commission on Remuneration of Representatives established by section 2 of the Commission on the Remuneration of Representatives Act, 1994 (Act No. 37 of 1994), and a distinction may be made between commissioners appointed in a full-time and part-time capacity.

(3) A commissioner may-

(a) only be removed from office by the President-

(i) on the grounds of misconduct, incapacity or incompetence;

(ii) after a finding to that effect by a committee of the National

^{Assembly upon the recommendation of the Electoral Court; and}

(iii) the adoption by a majority of the members of that Assembly of a resolution, calling for that commissioner's removal from office;

(b) be suspended from office by the President at any time after the start of the proceedings of the committee contemplated in paragraph (a)(ii);

(c) be reappointed, but only for one further term of office. Chairperson of Commission

^{8. (1) The President shall designate a chairperson and vice-chairperson}

from among the members of the Commission.

(2) In the absence of both the chairperson and vice-chairperson, the remaining members shall elect an acting chairperson from their number.

Conduct of commissioners

9. (1) Every member of the Commission shall-

(a) serve impartially and independently and perform his or her functions as such in good faith and without fear, favour or prejudice;

(b) if appointed in a full-time capacity, serve as such to the exclusion of any other duty or obligation arising out of any other employment or occupation or the holding of any other office, unless specifically authorised thereto by the President.

(2) No member of the Commission-

(a) shall during his or her term of office be eligible for appointment or nomination to any political office;

(b) may, whether directly or indirectly, in any manner give support to, or oppose, any party or candidate participating in an election, or any of the issues in contention between parties or candidates;

(c) may, by his or her membership, association, statement, conduct or in any other manner place in jeopardy his or her perceived independence,

or

in any other manner harm the credibility, impartiality, independence or integrity of the Commission;

(d) may make private use of or profit from any confidential information gained as a result of his or her appointment and functions as such member;

(e) may divulge any such information to any third party save in the course and scope of his or her official functions;

(f) shall during his or her term of office be eligible to serve as a member of Parliament, a provincial legislature or a local government body, and such ineligibility shall continue for a period of 18 months reckoned from the date upon which such term of office has terminated.

Disclosure of conflicting interests

10. (1) Subject to subsection (2), a member may not at any meeting of the Commission during the discussion of any matter before such meeting in respect of which he or she has any financial or other interest which might preclude him or her from performing his or her functions in a fair, impartial and proper manner-

(a) be present;

(b) cast a vote; or

(c) in any other manner participate in the proceedings thereof.

(2) If at any stage during the course of any proceedings before the Commission it appears that any member has or may have an interest which may cause such a conflict of interests to arise on his or her part-

(a) such member shall forthwith and fully disclose the nature of his or her interest and leave the meeting so as to enable the remaining members to discuss the matter and determine whether such member is precluded from participating in such meeting by reason of a conflict of interests; and

(b) such disclosure and the decision taken by the remaining members regarding such determination, shall be recorded in the minutes of the meeting.

(3) If any member fails to disclose any interest as required by subsection

(2) or, subject to that subsection, is present at a meeting of the Commission or in any manner whatsoever participates in the proceedings of the Commission in relation to such matter, such proceedings may be reviewed and varied or set aside by the Commission.

Meetings of Commission

11. (1) The Commission may meet at any place in the Republic determined by the chairperson for the purpose of performing its functions.

(2) Meetings may be convened at any time by the chairperson at such intervals as circumstances may require and he or she shall convene a special meeting when requested to do so by any two other members of the Commission.

(3) A quorum for a meeting of the Commission is the majority of the total number of the members.

(4) A decision by the majority of the members present at a meeting of the

^{Commission is a decision of the Commission.}

(5) The Commission may determine its own procedures to be followed at its meetings.

CHAPTER 3

ADMINISTRATION, STAFF AND ACCOUNTABILITY OF COMMISSION Administration and staff of Commission

^{12. (1) As soon as possible after the composition of the Commission and}

whenever necessary thereafter, the Commission shall appoint a suitably qualified and experienced person as chief electoral officer.

(2) The chief electoral officer-

(a) shall be the head of the administration of the Commission;

(b) shall be the accounting officer of the Commission for the purposes of the Exchequer Act, 1975 (Act No. 66 of 1975), and shall cause the necessary accounting and other related records to be kept; and

(c) may exercise all such powers and shall perform all such duties and functions as may be entrusted or assigned to him or her by the Commission or this Act or any other law.

(3) Whenever the chief electoral officer is for any reason absent or unable to perform his or her functions, or whenever a vacancy in the office of chief electoral officer occurs, the Commission may designate a member of its staff

^{to act in that capacity until the chief electoral officer resumes his or her}

functions, or a chief electoral officer is appointed in terms of subsection (1), and that member has, while so acting, such powers and shall perform such functions of the chief electoral officer as may be delegated or assigned to him or her by the Commission.

(4) The chief electoral officer shall in consultation with the Commission appoint such officers and employees of the Commission as he or she may consider necessary to enable the Commission to exercise its powers and to perform its duties and functions effectively.

(5) The conditions of service, remuneration, allowances, subsidies and other benefits of the chief electoral officer, an acting chief electoral officer and the other administrative staff of the Commission shall be prescribed by the Commission.

(6) Notwithstanding the provisions of the Government Employees Pension Law,

1996 (Proclamation No. 21 of 1996)-

(a) any person appointed in terms of this section who, immediately before the date of such appointment was a member of the Government Employees Pension Fund referred to in section 2 of that Law, may remain such member notwithstanding such appointment; and

(b) any person so appointed who is not a member of the said fund may become a member of that fund as from the date of such appointment and, if applicable, shall contribute thereto.

Finances and auditing

13. (1) The expenditure in connection with the exercise of the Commission's powers and the performance of its duties and functions shall be defrayed out of money appropriated by Parliament for that purpose or received by the Commission from any other source.

(2) The Commission shall budget for the necessary resources or additional resources to enable it to exercise its powers and perform its duties and functions effectively.

(3) The records referred to in section 12(2)(b) shall be audited by the

Auditor-General in terms of the Auditor-General Act, 1995 (Act No. 12 of

1995).

Reports by Commission

14. (1) The Commission shall annually, as soon as possible after the end of each financial year, submit to the National Assembly an audited report of all money received from other sources as contemplated in section 13(1), as

well as the audited statement on income and expenditure and a report in regard to the functions, activities and affairs of the Commission in respect of such financial year.

(2) The Commission shall furnish the President with such information and particulars as he or she may from time to time in writing require in connection with the activities of the Commission.

(3) The Commission shall as soon as possible after the end of an election publish a report thereon.

(4) The Commission may, if it deems it necessary, publish a report on the likelihood or otherwise that it will be able to ensure that any pending election will be free and fair.

CHAPTER 4

REGISTRATION OF PARTIES Registration of parties

15. (1) The chief electoral officer shall, upon application by a party in the prescribed form, register such party in accordance with this Chapter.

(2) The form shall, inter alia, make provision for the following: (a) The name of the party;

^{(b) the distinguishing mark or symbol of the party in colour;}

(c) the abbreviation, if any, of the name of the party consisting of not more than eight letters; and

(d) the constitution of the party.

(3) No party not represented in Parliament, a provincial legislature or a local government body may be so registered unless the application is accompanied by-

(a) that party's deed of foundation which has been adopted at a meeting of, and has been signed by, the prescribed number of persons who are qualified voters;

(b) the prescribed amount, if any; and

(c) proof of publication in the Gazette of the prescribed notice of the application.

(4) The party's deed of foundation shall contain the prescribed particulars.

(5) After a party has been registered the chief electoral officer shall issue that party with a registration certificate in the prescribed form and publish the prescribed particulars of such registration in the Gazette.

(6) Every registered party not represented in a legislative body shall annually renew its registration in the prescribed manner and at the prescribed time.

Prohibition on registration of party under certain circumstances

16. (1) The chief electoral officer may not register a party in terms of section 15, if-

(a) a proposed name, abbreviated name, distinguishing mark or symbol men- tioned in the application-

(i) afford the parties concerned an opportunity to offer such proof, including oral evidence or sworn or affirmed statements by any person which, in the opinion of the Commission, could be of assistance in the expeditious determination of the matter; and

and in the manner determined by that Court.

(c) Such an appeal shall be heard, considered and summarily determined upon written submissions submitted within three days after leave to appeal was granted in terms of paragraph (b).

(3) The Electoral Court may determine its own practice and procedures and make its own rules.

(4) The Electoral Court shall-

(a) make rules in terms of which electoral disputes and complaints about infringements of the Electoral Code of Conduct as defined in section I of the Electoral Act, 1993 (Act No. 202 of 1993), and appeals against decisions thereon may be brought before courts of law; and

(b) determine which courts of law shall have jurisdiction to hear particular disputes and complaints about infringements, and appeals against decisions arising from such hearings.

(5) The hearings and appeals referred to in subsection (4) shall enjoy precedence in the courts of law determined in accordance with that subsection.

(6) The Electoral Court may hear and determine any matter that relates to the interpretation of any law referred to it by the Commission.

(7) The Electoral Court may investigate any allegation of misconduct, incapacity or incompetence of a member of the Commission and make any recommendation to a committee of the National Assembly referred to in section

7(3)(a)(ii).

(8) The Director-General: Justice shall provide the necessary accommodation, administration and financial support for the Electoral Court.

CHAPTER 6

GENERAL PROVISIONS Offences and penalties

21. (1) Any person commits an offence who-

(a) wilfully hinders or obstructs the Commission, the chief electoral officer or a member of the staff of the Commission in the exercise of its or his or her powers or in the performance of its or his or her duties or functions;

(b) wilfully interrupts the proceedings of a meeting of the Commission or a sitting of the Electoral Court or misbehaves in any other manner in the place where such meeting or sitting is held;

(c) does anything calculated improperly to influence the Commission or that Court in respect of any matter being or to be considered by the Commission or that Court in connection with any decision or order.

(2) Any person convicted of any offence referred to in subsection (1), may be sentenced to a fine or to imprisonment for a period not exceeding five years.

Legal proceedings against Commission

22. (1) The State Liability Act, 1957 (Act No. 20 of 1957), applies with the necessary changes in respect of the Commission.

(2) In such application a reference to a Minister of a department shall be construed as a reference to the chairperson of the Commission.

Regulations

^{23. (1) The Commission may make regulations regarding-}

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Act 5 of 1994 |Independent Electoral Commission Amendment Act, 1994

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^{Proclamation 46 of 1994 |Independent Electoral Commission Amendment$}

^{|Proclamation, 1994}

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