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SIXTH AND FINAL DRAFT
OF THE
INDEPENDENT
ELECTORAL COMMISSION BILL
31 AUGUST
1993
BILL
To make provision for the conduct
of free and fair elections for the National Assembly and any other legislature
contemplated in the
Constitution of the Republic of South Africa Act, 1993; to
make provision for the conduct of certain referenda by the Independent
Electoral
Commission; and to provide for matters in connection therewith.
BE IT
ENACTED by the State President and the Parliament of the Republic of South
Africa, as follows:-
ARRANGEMENT OF
SECTIONS
CHAPTER I
Interpretation and
Application of
Act
Section
1. Definitions
2. Application of
Act
3. Act binding on State and State President
CHAPTER
11
Independent Electoral Commission
4. Establishment
and objects of Commission
5. Constitution of Commission
6. Conduct
required of members
7. Disclosure of conflicting interests
8. Independence
of Commission
9. Dissolution of Commission
10. Conditions of service,
remuneration and allowances of members of Commission a
11. Vacation of
office, removal from office and filling of vacancies in Commission and Internal
Advisory Committee
12. Meetings of Commission
13. Powers, duties and
functions of Commission
14. International Advisory
Committee
15. Administration and staff of Commission
16. Expenditure of
Commission and budget
17. Accountability and finance
18. Determination and
certification of election results, and declaration
CHAPTER
111
Election Administration
Directorate
19. Establishment of Election Administration
Directorate
20. Constitution of Election Administration
Directorate
21. Powers, duties and functions of Chief Director:
Administration
CHAPTER IV
Election Monitoring
Directorate
22. Establishment of Election Monitoring
Directorate
23. Constitution of Election Monitoring
Directorate
24. Powers, duties and functions of Chief Director:
Monitoring
CHAPTER V
Election Adjudication
Secretariat
25. Establishment of Election Adjudication
Secretariat
26. Constitution of Election Adjudication
Secretariat
27. Powers, duties and functions of
Secretary
CHAPTER VI
Electoral
Tribunals
28. Establishment and constitution of Electoral
Tribunals
29. Powers, duties and functions of Electoral
Tribunals
CHAPTER VII
Electoral Appeal
Tribunals
30. Establishment and constitution of Electoral Appeal
Tribunals
31. Powers, duties and functions of Electoral Appeal
Tribunals
CHAPTER VIII
Special Electoral
Court
32. Establishment and constitution of Special Electoral
Court
33. Powers, duties and functions of Special Electoral
Court
CHAPTER IX
General
Provisions
34. Application of Act in event of conflict with other
laws
35. Dissolution of directorates, Secretariat and tribunals
36. Appeal
and review
37. Remuneration and allowances of members of tribunals and
Special Electoral Court
38. Secrecy
39. Offences and
penalties
40. Legal proceedings against
Commission
41. Regulations
42. Short title
CHAPTER
I
Interpretation and Application of
Act
Definitions
1. In this Act, unless the context
otherwise indicates -
(i) "Administration Directorate" means the Election Administration
Directorate established by section 19;
(ii) "Appeal Tribunal" means an Electoral Appeal Tribunal established
in terms of section 30;
(iii) "candidate" means any person whose name appears on a list of
nominations by any registered party to be a member of the National Assembly or
any
other legislature in terms of the Constitution and the Electoral Act;
(iv) "Chief Director: Administration" means the person appointed to
that office by the Commission in terms of section 20(1);
(v) "Chief Director: Monitoring" means the person appointed to that
office by the Commission in terms of section 23(1);
(vi) "Chief Executive Officer" means the person appointed to that
office by the Commission in terms of section 17(1);
(vii) "Commission" means the Independent Electoral Commission
established by section 4(1);
(viii) “committee" means a committee of the Commission
established under section 13(3)(c);
(ix) "Constitution" means the Constitution of the Republic of South
Africa Act, 1993;
(x) "directorate" means the Administration or Monitoring
Directorate;
(xi) “election" means any election conducted in terms of the
Electoral Act for the National Assembly or any other legislature;
(xii) "Electoral Act" means the Electoral Act, 1993;
(xiii) "Electoral Code of Conduct" means the Code of Conduct for
Political Parties contained in Schedule 1 to the Electoral Act;
(xiv) "Electoral Tribunal" means an Electoral Tribunal established in
terms of section 28;
(xv) "International Advisory Committee" means the International
Advisory Committee established in terms of section 14;
(xvi) "international member" means any person appointed as a member of
the Commission under section 5(2)(a);
(xvii) "international observer" means any person appointed as a
representative of the United Nations, the Organization of African Unity, the
European Community, the
Commonwealth and any other inter-governmental
organization or foreign government accredited for that purpose by the Subcouncil
on
Foreign Affairs of the Transitional Council in consultation with the
Department of Foreign Affairs in order to observe and report
on the electoral
process;
(xviii) "judicial office" means any appointment as a judge of the
Supreme Court, whether permanent or on an acting basis;
(xix) "member" means a member of the Commission appointed in terms of
section 5(1);
(xx) “monitor" means any person appointed as such in terms of
section 24(1)(a);
(xxi) "Monitoring Directorate" means the Election Monitoring
Directorate established by section 22;
(xxii) "National Assembly" means the National Assembly which together
with the Senate shall constitute the Constitutional Assembly as contemplated in
the Constitution;
(xxiii) "observer" means any observer registered with the Monitoring
Directorate in terms of section 24(1)(b);
(xxiv) "other legislature" means any legislature contemplated in the
Constitution, excluding the National Assembly and Senate;
(xxv) "Parliament" means Parliament as contemplated in the
Constitution;
(xxvi) “party" means any registered party, and any party,
organization or movement of a political nature which publicly supports or
opposes the policies,
candidates or cause of any registered party, or which
propagates non-participation in any election or the non-acceptance of the
results
certified by the Commission;
(xxvii) "political office" means any executive appointment or elected
office, including any elected or nominated public representative of a party,
whether involving
remuneration or not, or any other paid office, in the service
of a party;
(xxviii) "prescribed" means prescribed by regulation;
(xxix) “public office" means any appointment or position in the
service of the State, or any corporate or other body, institution or concern,
owned or controlled,
whether directly or indirectly, by the State, and includes
any such appointment or position in the legislative, executive or judicial
organs of the State at any level of government, but excludes any appointment to
judicial office and any academic appointment at any
university or tertiary
educational institution;
(xxx) "registered party" means any registered party as defined in
section 1 of the Electoral Act;
(xxxi) “regulations" means the regulations made under section
41;
(xxxii) "Republic" means the Republic of South Africa, including any
of the Republics of Transkei, Bophuthatswana, Venda or Ciskei which formally
incorporated
the provisions of this Act and the Electoral Act as part of its
law;
(xxxiii) "Secretariat" means the Election Adjudication Secretariat
established by section 25;
(xxxiv) "Secretary" means the person appointed to that office by the
Commission in terms of section 26(1);
(xxxv) "Senate" means the Senate as contemplated in the
Constitution;
(xxxvi) "Special Electoral Court" means the Special Electoral Court
established by section 32;
(xxxvii) "State" means the Republic;
(xxxviii) "Supreme Court" means the Supreme Court of South Africa, and
the Supreme Court of the Republic of Transkei, Bophuthatswana, Venda or Ciskei
if such
Republic formally incorporated the provisions of this Act and the
Electoral Act as part of its law;
(xxxix) "this Act" includes the regulations;
(xl) "Transitional Council" means the Transitional Executive Council
established by section 2 of the Transitional Executive Council Act, 1993;
and
(xli) “voter" means any eligible voter as contemplated in the
Constitution and the Electoral Act.
Application of Act
2.(1) The provisions of this
Act shall apply in respect of -
(a) the first elections to be conducted
for the National Assembly and all other legislatures in terms of the
Constitution and the
Electoral Act; and
(b) any referendum conducted
under the supervision of the Commission in terms of subsection (2),
until the
first National Assembly and all other legislatures have been validly
constituted.
(2) Upon the advice of the Transitional Council the
State President shall by proclamation in the Gazette declare -
(a) the
holding of a referendum; and
(b) that the provisions of this Act shall
apply in respect of the holding of that referendum.
(3) The
State President shall in consultation with the Transitional Council by
proclamation in the Gazette make regulations for the holding of such a
referendum, in which case the provisions of this Act shall, subject to such
regulations,
apply mutatis mutandis in respect of the holding of such
referendum, whether nationally or within any particular geographical region, or
in respect of any
specified issue, as the case may be.
(4) In the event
of any of the Republics of Transkei, Bophuthatswana, Venda or Ciskei deciding
formally to incorporate the provisions
of this Act into its law, such agreements
as may be required to secure the co-ordinated implementation of the relevant
legislation
may be concluded and any such agreement shall have the force of
law.
Act binding on State and State
President
3.(1) This Act shall bind the State.
(2) This Act
shall bind the State President in so far as he or she shall be obliged to act in
accordance with the advice of the Transitional
Council wherever so provided for
in this Act.
CHAPTER 11
Independent Electoral
Commission
Establishment and objects of
Commission
4.(1) There is hereby established a commission to be
known as the Independent Electoral Commission.
(2) The objects of the
Commission shall be -
(a) to administer, organize, supervise and conduct,
whether directly or indirectly, free and fair elections for the National
Assembly
and all other legislatures in terms of the Constitution;
(b) to
promote conditions conducive to free and fair elections;
(c) to determine
and certify the results of elections and to certify to what extent such
elections have been free and fair;
(d) to conduct voter education;
and
(e) to make and enforce regulations for the achievement of such
objects.
Constitution of Commission
5.(1) The
Commission shall, subject to subsection (2), consist of no fewer than seven and
not more than I 1 members who shall be
appointed by the State President upon the
advice of the Transitional Council, and who shall be impartial, respected and
suitably
qualified men and women, who do not have a high party political
profile, are themselves voters, and represent a broad cross-section
of the
population.
(2)(a) The State President shall, upon the advice of the
Transitional Council, appoint not more than five persons (not being citizens
of
the Republic) from the international community as members of the Commission in a
non-representative capacity.
(b) Such international members shall have
the same rights and powers as other members, excluding the power to vote, and
shall not
constitute part of any quorum in terms of this Act.
(3)(a)
The State President shall, upon the advice of the Transitional Council,
designate two members as Chairperson and Vice-Chairperson
of the Commission,
respectively: Provided that if the Transitional Council so decides, it may
advise the State President to designate
two members as Co-Chairpersons in lieu
of a Chairperson and Vice-Chairperson, and designate which one of them shall
preside at the
first meeting of the Commission.
(b) In the absence of
both such Chairperson and Vice-Chairperson, or both such Co-Chairpersons, as the
case may be, the remaining
members shall by simple majority nominate another
member as acting Chairperson of the Commission.
(c) The international
members shall not be eligible to serve as Chairperson, Co-Chairperson,
Vice-Chairperson or acting Chairperson.
(4) The State President
shall from time to time, upon the advice of the Transitional Council and subject
to subsection (1), appoint
additional members to the Commission subject to the
maximum number contemplated in that subsection.
Conduct required
of members
6.(1) Every member and international member of the
Commission shall -
(a) be appointed in his or her individual capacity,
and shall, notwithstanding any personal opinion, preference or party
affiliation,
serve impartially and independently and perform his or her
functions in good faith and without fear, favour, bias or
prejudice;
(b) serve in a full-time capacity to the exclusion of any
other duty or obligation arising out of any other employment, occupation
or the
holding of any other office.
(2) No member or international member of
the Commission shall -
(a) during his or her term of office be eligible
for appointment or nomination to any political or public office, whether
involving
remuneration or not, and such ineligibility shall, in respect of such
public office, continue for a period of 18 months reckoned
from the date upon
which such term of office as a member shall have terminated, save in respect of
the resumption of the previously
held public office at the same
level;
(b) whether directly or indirectly, in any manner give support to,
or oppose, any of the parties or candidates participating in the
elections, or
any of the issues in contention between such parties or
candidates;
(c) 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) 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) divulge any such information to any third
party save in the course and scope of his or her official functions and with the
prior
approval of the Commission;
(f) accept any remuneration, emolument
or benefit, of whatsoever nature, arising from any other employment, occupation
or the holding
of any other office, unless specifically authorized thereto by
the State President, acting upon the advice of the Transitional
Council;
(g) during his or her term of office be eligible to serve as a
member of the Transitional Council, Parliament or any other legislature,
and
such ineligibility shall continue for a period of 18 months reckoned from the
date upon which such term of office shall have
terminated; and
(h) after
having served as such member, be eligible to serve as a member of the Parliament
or other legislature for which that Commission
was responsible to conduct
elections, during the term of such Parliament or
legislature.
Disclosure of conflicting interests
7.(1)
Subject to subsection (2), a member or international member shall not at any
meeting of the Commission-
(a) be present;
(b) exercise a
vote;
(c) in any other manner participate in the proceedings thereof, 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, unbiased and proper
manner.
(2) If at any stage during the course of any proceedings
before the Commission it appears that any member or international 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 in question.
(3) If any member or international 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, varied or set aside by the
Commission.
Independence of Commission
8.(1) The
Commission shall function without political or other bias or interference and
shall, save as may in this Act be expressly
otherwise provided, be independent
and separate from the Transitional Council, any party, any government and its
administration or
any other functionary or body, whether directly or indirectly
representing the interests of any such entity.
(2) Any power of any of
the entities referred to in subsection (1), in so far as it relates
to the
administration, organization, conduct and supervision of any election shall be
subject
to the powers of the Commission, to which such entities shall be
accountable for such of
their acts and decisions as may influence or affect
any election.
Dissolution of Commission
9. The
Commission shall be dissolved upon the completion of its mandate on a date to be
fixed by the State President by proclamation
in the
Gazette.
Conditions of service, remuneration and allowances
of members of Commission and International Advisory
Committee
10. The conditions of service, remuneration, allowances and
other benefits of members of the Commission and International Advisory
Committee
shall be determined by the Transitional Council after consultation with the
State President.
Vacation of office, removal from office and
filling of vacancies in Commission
11. (1) A member of the
Commission may be removed from office by order of the Special
Electoral Court
on an application lodged by or on behalf of -
(a) the State
President;
(b) the Transitional Council;
(c) Parliament or any
other legislature; or
(d) any registered party eligible to participate in
the relevant election, or at least 1 000
voters: Provided that no such
application by such party or such voters shall be heard save with the prior
leave of the Chairperson
of the Special Electoral Court, who shall first satisfy
himself or herself as to the existence of probable cause, and who may impose
such conditions upon the grant of leave, including the imposition of time limits
for the institution of any such proceedings, as
he or she may deem
appropriate,
if the Special Electoral Court is satisfied as to the
existence of good and sufficient reason therefor as contemplated in subsection
(2).
(2) In considering any such application the Special Electoral
Court shall determine that good and sufficient reason exists for the
removal
from office of a member of the Commission, in the case of -
(a) serious
misconduct;
(b) unfitness or incapacity, including continued ill
health;
(c) a material contravention or failure to comply with the
provisions of section 6(1)(a) or (b) or (2)(a), (b), (c), (d), (e) or (f)
or
7(1) or (2); or
(d) any other reason which the Special Electoral Court
may consider material and inconsistent with such member's continuance in
office.
(3) If a member of the Commission dies, tenders his or her
resignation in writing to the
State President or is removed from office in
terms of this section, the State President shall, upon the advice of the
Transitional
Council, either -
(a) allow such appointment to lapse,
provided there remains at least the minimum number of members provided for in
section 5(1); or
(b) appoint some other suitably qualified person as a
member for the unexpired portion of the term of the
Commission.
Meetings of Commission
12.(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 at the instance of the Chairperson or
Vice‑Chairperson, or at the instance of any two
other members, and shall
be convened at such intervals as circumstances may require.
(3) A
quorum for a meeting of the Commission shall be 75 % of the
members.
(4)(a) Subject to paragraph (b), and section 5(3)(b) the
decision of two-thirds of the members present at a meeting of the Commission
shall be the decision of the Commission.
(b) The Commission shall
certify in terms of section 18(b) that an election was substantially free and
fair, only if a majority of
at least 75 % of the members present at the meeting
of the Commission concur.
(5) The Commission may determine its own
procedures to be followed at its meetings.
Powers, duties and
functions of Commission
13.(1) The Commission may exercise the powers
and shall perform the duties and functions conferred upon or assigned to it by
this
Act or any other law.
(2) The Commission shall
-
(a) assume responsibility for the administration, organization and
conduct, whether directly or indirectly, and the supervision of
the
administration, organization and conduct of any election;
(b) take such
measures as it may consider necessary for the prevention of intimidation of
voters, candidates and parties;
(c) be responsible for the education of
voters concerning -
(i) democratic principles and values;
(ii) the electoral process and mechanisms;
(iii) the right to free political canvassing and campaigning;
(iv) secrecy of voting; and
(v) any other relevant matter,
by means of -
(aa) literature and the use of other media, including distribution and
publication of suitable literature, advertisements and dissemination
through
radio, television and the public print media, having due regard to the variety
of languages spoken and varying levels of
education throughout the Republic;
and
(bb) workshops, seminars and meetings, as it may consider appropriate;
and
(d) submit monthly written reports concerning its functions, which
reports shall be delivered at the same time to the Transitional
Council and the
State President, and such reports shall be public documents.
(3) The
Commission shall have power -
(a) to hear and determine appeals from
decisions or actions of the Chief
Directors: Administration and Monitoring in
respect of prescribed matters, which decisions or actions may be confirmed,
varied or
set aside;
(b) to give instructions to the Chief Directors:
Administration and Monitoring in respect of matters concerning their functions,
which
power may be exercised either upon request from the said Chief Directors
or at its own initiative; and
(c) to establish such committees as it may
consider necessary for the effective exercise and performance of its powers,
duties and
functions, and determine the composition, quorum for a meeting and a
decision, procedure and functions thereof.
International Advisory
Committee
14.(1) The State President shall, upon the advice of the
Transitional Council, establish a committee to be known as the International
Advisory Committee to advise the Commission on any matter regarding the
performance of its functions as may be requested by it.
(2) The
International Advisory Committee may consist of persons (not being citizens of
the Republic) from the international community
appointed in a non-representative
capacity by the State President upon the advice of the Transitional
Council.
(3) The International Advisory Committee may determine its
own procedures to be followed at its meetings.
Administration and
staff of Commission
15. The Commission shall, in addition to the
other powers conferred upon it by this Act or any other law, for the purpose of
achieving
its objects, have the power to -
(a) appoint staff to assist it
or a directorate or the Secretariat in the performance of its functions, and
after consultation with
the Minister of State Expenditure, determine
their
conditions of service, remuneration, allowances and other benefits, including
those of -
(i) members of committees who are not members of the
Commission;
(ii) the Chief Directors: Administration and Monitoring and the
Secretary; and
(iii) other officials;
(b) request the secondment of
skilled personnel from any public service, subject to any law applicable to such
personnel in that regard,
to assist the Commission, the directorates or the
Secretariat in the performance of its functions;
(c) open and maintain
its own financial accounts; and
(d) take such steps, including legal
steps, as are necessary to give effect to this Act or any decision taken under
this Act.
Expenditure of Commission and
budget
16.(1) The expenditure in connection with the exercise of the
Commission's powers and the performance of its duties and functions
shall be
paid out of money appropriated by Parliament then existing for such
purpose.
(2) The Commission shall budget for and be allocated the
necessary resources or additional resources to enable the Commission to
exercise
its powers and perform its duties and functions
effectively.
Accountability and Finance
17.(1) The
Commission shall at its first meeting or as soon thereafter as possible appoint
a person to the office of Chief Executive
Officer who -
(a) shall be
responsible for the management of and administrative control over the staff
appointed or seconded in terms of section
15(a) or (b), respectively, in respect
of the Commission;
(b) shall, subject to the Exchequer Act, 1975 (Act No.
66 of 1975) -
(i) be charged with the responsibility of accounting for State money received
or paid out for or on account of the Commission, the
directorates and the
Secretariat; and
(ii) cause the necessary accounting and other related records to be kept;
(c) may exercise the powers and shall perform the duties and functions
which the Commission may from time to time confer upon or assign
to him or her
in order to achieve the objects of this Act and shall, for the purposes thereof
be accountable to the Commission.
(2) The records referred to in
subsection (1)(b) shall be audited by the Auditor-General.
(3) The
Chief Executive Officer, and the persons referred to in section 15(a) or (b)
shall exercise their powers and perform their
duties and functions in an
impartial manner and shall, in so doing, be subject to such provisions of the
laws governing the public
service of the Republic as may be indicated by the
Commission and to the extent so indicated by the Commission as well as the
Exchequer
Act, 1975, and the Auditor-General Act, 1989 (Act No. 52 of
1989).
Determination and certification of election results, and
declaration
18. Upon completion of the ballot, the Commission shall
as expeditiously as possible, but
not sooner than two days and not later than
10 days after the close of the poll -
(a) determine and certify the
results of the election; and
(b) either certify in respect of the
National Assembly and each other legislature that the election was substantially
free and fair;
or
(c) declare that it was unable to certify it as
such.
CHAPTER 111
Election Administration
Directorate
Establishment of Election Administration
Directorate
19. There shall be established on the date on which the
Commission is constituted, a directorate to be known as the Election
Administration
Directorate.
Constitution of Election
Administration Directorate
20.(1) The Administration Directorate
shall consist of a Chief Director : Administration, one or more deputy directors
and such other
officials as the Commission may consider necessary and appoint to
enable that Directorate effectively to perform its functions in
terms of this
Act and the Electoral Act.
(2) In effecting the appointment of the
Chief Director: Administration and any deputy director, the Commission shall
invite and where
given, consider, but shall not be bound by, the advice of the
Transitional Council.
Powers, duties and functions of Chief
Director: Administration
21.(1) The Chief Director: Administration
shall have the powers, duties and functions conferred upon or assigned to him or
her by
or under this Act and the Electoral Act.
(2) Any decision or
action taken by any functionary of any sub-structure of the Administration
Directorate in any geographic district
or region in respect of any prescribed
matter may be appealed against to the Chief Director: Administration, who may
confirm, vary
or set aside any such decision or action.
(3) The Chief
Director: Administration shall -
(a) operate independently of the
Monitoring Directorate and the Secretariat;
(b) be under the supervision
of the Commission; and
(c) carry out the instructions of the Commission,
to which he or she shall be accountable.
(4) The Chief Director:
Administration may delegate the power to hear appeals in terms of subsection (2)
to any deputy director appointed
in terms of section 20(1) and may delegate any
other power conferred upon him or her by or under this Act and the Electoral Act
as
he or she may deem appropriate.
CHAPTER
IV
Election Monitoring Directorate
Establishment
of Election Monitoring Directorate
22. There shall be established on
the date on which the Commission is constituted, a directorate to be known as
the Election Monitoring
Directorate.
Constitution of Election
Monitoring Directorate
23.(1) The Monitoring Directorate shall
consist of a Chief Director : Monitoring and such other officials as the
Commission may consider
necessary and appoint to enable that Directorate
effectively to perform its functions in terms of this Act.
(2) In
effecting the appointment of the Chief Director: Monitoring, the Commission
shall
invite and where given, consider, but shall not be bound by, the advice
of the Transitional Council.
Powers, duties and functions of Chief
Director: Monitoring
24.(1) The Chief Director: Monitoring shall
-
(a) appoint and co-ordinate monitors to observe and report to him or
her upon the electoral process, including political meetings,
canvassing,
advertising and other campaigns;
(b) register observers and regulate
their activities, and publish guidelines and, if he or she considers it
necessary, a Code of Conduct
binding upon all such
observers;
(c) facilitate the role of international observers and provide
them with information and assistance as may be required to enable them
to
perform their duties;
(d) investigate alleged infringements of the
Electoral Code of Conduct, other electoral offences and any other matters
justiciable
in terms of this Act and the Electoral Act and report to the
Commission thereon;
(e) issue and execute prescribed search warrants and
subpoenas and seize items required in connection with the investigation of
alleged
infringements of the Electoral Code of Conduct, other electoral offences
and any other matters justiciable in terms of this Act and
the Electoral Act,
with the assistance of the National Peacekeeping Force as defined in section 1
of the Transitional Executive Council Act, 1993, the police or defence forces,
as may be requested by the Commission;
(f) initiate or co-ordinate
meetings between the various registered parties participating in the election
with a view to mediating
and, if possible, resolving issues and disputes arising
in the course of the election, by negotiation and mutual
agreement;
(g) issue warnings concerning alleged or threatened
infringements of the Electoral Code of Conduct;
(h) report to the
Commission upon the electoral process as required by it;
(i) operate
independently of the Administration Directorate and the
Secretariat;
(j) be under the supervision of the Commission;
and
(k) carry out the instructions of the Commission to which he or she
shall be accountable.
(2) Any decision or action taken by any
functionary of any sub-structure of the Monitoring Directorate in any geographic
district
or region in respect of any prescribed matter may be appealed against
to the Chief Director: Monitoring who may confirm, vary or
set aside any such
decision or action.
(3) The Chief Director: Monitoring may delegate
any power conferred upon him or her by or under this Act as he or she may deem
appropriate.
CHAPTER V
Election Adjudication
Secretariat
Establishment of Election Adjudication
Secretariat
25. There shall be established on the date on which the
Commission is constituted a secretariat to be known as the Election Adjudication
Secretariat.
Constitution of Election Adjudication
Secretariat
26.(1) The Secretariat shall consist of a Secretary and
such other officials as the Commission may consider necessary and appoint
to
enable the Secretariat effectively to perform its functions in terms of this
Act.
(2) In effecting the appointment of the Secretary, the
Commission shall invite and where given, consider, but shall not be bound
by,
the advice of the Transitional Council.
Powers, duties and
functions of Secretary
27. The Secretary shall
-
(a) co-ordinate the functions of the Electoral Tribunals, the Electoral
Appeal Tribunals and the Special Electoral Court;
(b) perform the
administrative work connected with the functions of those Tribunals and that
Court;
(c) operate independently of the directorates;
(d) be under
the supervision of the Commission;
(e) carry out the instructions of the
Commission, to which he or she shall be accountable.
CHAPTER
VI
Electoral Tribunals
Establishment and
constitution of Electoral Tribunals
28.(1) The Commission shall,
subject to subsection (2), establish such number of Electoral Tribunals with
jurisdiction in respect
of prescribed geographical areas as it may consider
necessary to adjudicate and determine prescribed matters concerning alleged
electoral
irregularities and infringements of the Electoral Code of
Conduct.
(2) An Electoral Tribunal shall consist of one person
appointed to that office by the Commission who shall be an attorney, advocate,
magistrate or academic lawyer at a university with not less than five
years' experience in one or more such capacity.
Powers, duties
and functions of Electoral Tribunals
29.(1) An Electoral Tribunal
hearing any matter falling within its jurisdiction, shall enquire into the
matter in the prescribed
manner, consider it and make such decision or give such
order as in its opinion is fair and just.
(2) An Electoral Tribunal
finding any person or party guilty of contravening or failing to comply with any
prescribed matter or any
provision of the Electoral Code of Conduct, may impose
any such penalty or sanction as may be prescribed in terms of this Act and
the
Electoral Act as it may deem appropriate in the circumstances.
(3) An
Electoral Tribunal shall have such other powers, duties and functions as may be
prescribed.
CHAPTER VII
Electoral Appeal
Tribunals
Establishment and constitution of Electoral Appeal
Tribunals
30.(1) The Commission shall, subject to subsection (2),
establish such number of Electoral Appeal Tribunals as it may consider necessary
to hear and determine appeals and review decisions from the Electoral Tribunals,
noted in the prescribed manner.
(2) An Electoral Appeal Tribunal
shall consist of three persons appointed by the Commission, of whom
-
(a) the Chairperson shall be a judge of the Supreme
Court;
(b) one shall be an attorney, advocate, magistrate or academic
lawyer at a university with not less than five years' experience in
one or more
such capacity;
(c) one shall be a suitable person who may or may not be
legally qualified or experienced.
Powers, duties and functions of
Electoral Appeal Tribunals
31.(1) An Electoral Appeal Tribunal
hearing any appeal or reviewing any decision shall enquire into the matter in
the prescribed
manner, consider it and shall confirm, vary or set aside the
decision, order, penalty or sanction of the Electoral Tribunal, or make
such
other decision or give such other order or impose such other penalty or sanction
as in its opinion the Electoral Tribunal ought
to have made, given or
imposed.
(2) An Electoral Appeal Tribunal shall have such other
powers, duties and functions as may be prescribed.
CHAPTER
VIII
Special Electoral Court
Establishment and
constitution of Special Electoral Court
32.(1) There is hereby
established a court to be known as the Special Electoral Court with the powers,
duties and functions referred
to in section 33.
(2) The Special
Electoral Court shall consist of -
(a) a Chairperson who shall be a judge
of the Appellate Division of the Supreme Court
and two judges of the Supreme
Court designated by the Chief Justice; and
(b) two other members
of whom-
(i) one shall be an attorney, advocate, magistrate or academic lawyer at a
university with not less than five years' experience in
one or more such
capacity; and
(ii) one shall be a person who may or may not be legally
qualified or experienced,
appointed by the Transitional
Council.
Powers, duties and functions of Special Electoral
Court
33.(1) (a) Subject to section 36(6)(a)(ii), the Special
Electoral Court shall have power to
review any decision of the
Commission.
(b) Any such review shall be conducted on an urgent basis,
and shall be disposed of
as expeditiously as
possible.
(2) (a) Subject to section 36(6)(a)(ii), the Special
Electoral Court shall have the power to hear an appeal from any decision of the
Commission only in so far as such decision relates to the interpretation of any
law or any other matter for which an appeal is provided
in the
Electoral
Act.
(b) No such appeal shall be heard save with the prior leave of the
Chairperson of the Special Electoral Court granted on application
within the
period 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 has been granted in terms of
paragraph (b).
(3) The Special Electoral Court shall have power to
remove any member of the Commission from office under section
11.
(4) Subject to section 36(7), the Special Electoral Court shall
have power to hear appeals from and review decisions of any Appeal
Tribunal.
(5) The Special Electoral Court shall determine its own
practice and procedures and make its own rules.
(6) The Special
Electoral Court shall have such other powers, duties and functions as may be
conferred upon or assigned to it by
the Electoral Act, the Transitional
Executive Council Act, 1993, or any other law.
CHAPTER
IX
General Provisions
Application of Act in
event of conflict with other laws
34. In the event of a conflict
between the provisions of this Act and those of any other law, the provisions of
this Act shall prevail
in so far as such provisions relate to the conduct and
supervision of elections.
Dissolution of directorates, Secretariat
and tribunals
35.(1) The directorates and the Secretariat shall be
dissolved on the date upon which the
Commission is dissolved.
(2)
The Electoral Tribunals and the Electoral Appeal Tribunals shall be dissolved on
final
determination of the issues placed before them.
Appeal
and review
36.(1) Any interested person, party or candidate who or
which feels aggrieved by any decision or action taken by any functionary
of a
directorate in respect of any prescribed matter, may, within the period and in
the manner prescribed, appeal to the Chief Director
of the relevant directorate
against the decision or action in issue.
(2) Any interested person,
party or candidate who or which feels aggrieved by any decision or action taken
by the Chief Director:
Administration or Monitoring, in respect of any
prescribed matter other than a decision or action on appeal referred to in
subsection
(1), may within the period and in the manner prescribed, appeal to
the Commission against the decision or action in issue.
(3)(a)
Subject to section 33(2), there shall be no appeal from any decision of the
Commission,
(b) Subject to section 36(6)(a), any interested person,
party or candidate may bring any decision of the Commission under review
before
the Special Electoral Court within the period and in the manner determined by
that Court.
(4) Any interested person, party or candidate who or
which feels aggrieved by any finding, order, penalty or sanction made, given
or
imposed by any Electoral Tribunal, may, within the period and in the manner
prescribed, appeal to the relevant Appeal Tribunal
against the finding, order,
penalty or sanction in issue.
(5) Any interested person, party or
candidate may bring any decision of any Electoral Tribunal under review before
the relevant Appeal
Tribunal within the period and in the manner
prescribed.
(6) Any decision of -
(a) the Commission -
(i) in respect of appeals from decisions or actions of the Chief Director:
Administration or Monitoring; or
(ii) in terms of section 18; and
(b) the Special Electoral
Court,
shall be final and not subject to appeal or
review.
(7) No appeal from or review of a decision of an Appeal
Tribunal shall be heard save with the prior leave of the Chairperson of the
Special Electoral Court granted on application within the period and in the
manner determined by that Court.
Remuneration and allowances
of members of tribunals and Special Electoral Court
37.(1) Subject to
subsection (3), the Transitional Council may, after consultation with the
Minister of State Expenditure, determine
remuneration and allowances payable to
members of the Special Electoral Court.
(2) Subject to subsection
(3), the Commission may, after consultation with the Minister of State
Expenditure, determine remuneration
and allowances payable to members of the
Electoral and Appeal Tribunals.
(3) Different or no remuneration or
allowances may be determined under subsections (1) and (2) in respect of
different members of
those Tribunals and that
Court
Secrecy
38.(1) Every member of the Commission
and every person employed in the performance of the functions of the Commission,
the directorates
and the Secretariat shall aid in preserving secrecy in regard
to any matter or information that may come to her or his knowledge
in the
performance of her or his duties in connection with the said functions, except
in so far as the publication of such matter
or information is authorized by
law.
(2) Any person who, in the exercise of powers or the
performance of duties in terms of this Act, has obtained knowledge regarding
the
affairs of any registered party as defined in section 1 of the Electoral Act,
candidate or voter, shall, subject to section 6(2)(e),
not disclose such
knowledge to any person other than is required in the course and scope of his or
her duties or in response to a
question lawfully put under order of any court of
law or tribunal contemplated in this Act or the Special Electoral
Court.
Offences and penalties
39. Any person
who-
(a) wilfully hinders or obstructs the Commission, a directorate or
the Secretariat or a member of its staff 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 at a meeting of the
Commission or a hearing of an Electoral or Appeal Tribunal or the Special
Electoral Court or misbehaves in any other manner in the place where such
meeting or hearing is held;
(c) in connection with any meeting of the
Commission or hearing of such Tribunal or Court does anything which, if such
meeting or
hearing were proceedings in a court of law, would have constituted
contempt of court;
(d) does anything calculated improperly to influence
the Commission or any such Tribunal or Court in respect of any matter being or
to be considered by the Commission or such Tribunal or Court in connection with
any decision;
(e) wilfully contravenes or fails to comply with any
provision of section 38, shall be guilty of an offence and liable on conviction
to a fine or to imprisonment for a period not exceeding five
years.
Legal proceedings against Commission
40.(1) The
State Liability Act, 1957 (Act No. 20 of 1957), shall apply mutatis
mutandis 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 or Co-Chairperson
of the Commission, as the case may
be.
Regulations
41.(1) The Commission may make
regulations regarding -
(a) governing the permissible nature and content
of political advertising, which shall be determined and enforced by the
Commission
in conjunction with the Independent Media Commission established by
section 2 of the Independent Media Commission Act, 1993, and
the Independent
Broadcasting Authority established by section 3 of the Independent Broadcasting
Authority Act, 1993;
(b) the issue, contents, form, and the practice and
procedure in connection with the execution of search warrants, subpoenas and the
seizure of items required in connection with the investigation of alleged
infringements of the Electoral Code of Conduct, electoral
offences and matters
justiciable in terms of this Act;
(c) the manner in which and the nature
of proceedings which may be instituted in the Electoral and Appeal
Tribunals;
(d) the time limits within and manner in which appeals may be
noted or decisions may be brought under review in terms of this
Act;
(e) the electoral irregularities and other matters in respect of
which contraventions or failures to comply shall constitute cause
for
proceedings to be instituted in the Electoral Tribunals;
(f) the issue,
contents, form and use of process, and the practice and procedure in connection
with the service and execution thereof;
(g) the manner of recording or
noting evidence or proceedings and the disposal thereof;
(h) the
appointment and functions of sworn interpreters;
(i) orders, penalties
and sanctions which may be given or imposed by an Electoral or Appeal Tribunal,
and the execution thereof;
(j) the manner in which a person, party or
candidate may be summoned to appear in an Electoral Tribunal to face charges of
contravening
or failing to comply with a regulation contemplated in paragraph
(e), and the manner in which one or more persons may be selected
to represent
such party in such Tribunal;
(k) the procedures for investigating alleged
infringements of the Electoral Code of Conduct, electoral offences or matters
justiciable
in terms of this Act in order to bring it to an expeditious
conclusion;
(1) the practice and procedure to be followed by the Chief
Directors: Administration and Monitoring in hearing appeals from decisions
or
actions of functionaries of the directorates having due regard to the principles
of justice;
(m) the practice and procedure to be followed by the
Secretary in the performance of his or her functions;
(n) fees and costs
and the recovery thereof in respect of legal proceedings in terms of this
Act;
(o) representation or absence thereof in respect of legal
proceedings in terms of this Act;
(p) the practice and procedure to be
followed by the Electoral and Appeal Tribunals in the conduct of their
proceedings in order to
bring such proceedings to an expeditious conclusion,
having due regard to fairness and justice;
(q) the regulation of the
conduct of all persons, parties and candidates in so far as such conduct may
promote or inhibit the conduct
of free and fair elections;
(r) any matter
required or permitted to be prescribed in terms of this Act;
and
(s) generally, all matters which in its opinion are necessary or
expedient to be prescribed to achieve the objects of this Act.
(2) A
regulation under subsection (1) may prescribe penalties for any contravention of
the provisions thereof or any failure to comply
therewith of a fine or
imprisonment of a period not exceeding two years.
(3) Regulations
under subsection (1) affecting State expenditure shall be made only after
consultation with the Minister of State
Expenditure.
Short
title
42. This Act shall be called the Independent Electoral
Commission Act, 1993.
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