To make provision for the conduct of free and fair elections for the National Assembly and any other legislature to be elected contemplated in the Constitution of the Republic of South Africa Act, 1993; to make provision for the conduct of certain referendums by the Independent Electoral Commission; and to provide for matters in connection therewith.
Legal proceedings against Commission 41.
Constitution and the Electoral Act.
Electoral Act; and 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.
the holding of a referendum; and that the provisions of this Act shall, subject to subsection (3), apply in respect of the holding of that referendum.
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 geographic region, or in respect of any specified issue, as the case may be.
In the event of any of the Republics of Transkei, Bophuthatswana, Venda or Ciskei deciding formally to incorporate the provisions of this Act and the Electoral Act as part of its law, such agreements as may be required to secure the co-ordinated implementation of the relevant legislation may be concluded and any such agreements shall have the force of law.
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.
There is hereby established a commission to be known as the Independent Electoral Commission.
to conduct voter education; and to make and enforce regulations for the achievement of such objects.
The Commission shall, subject to subsection (2), consist of not fewer than 7 and not more than 11 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, do not have a high party political profile, are themselves voters, and represent a broad cross-section of the population.
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.
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.
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.
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.
The international members shall not be eligible to serve as Chairperson, Co-Chairperson, Vice-Chairperson or acting Chairperson.
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.
serve in a full-time capacity to the exclusion of any other duty or obligation arising out of any other employment or occupation or the holding of any other office.
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 has terminated; and after having served as such member, be eligible to serve as a member of the Parliament or any other legislature for which that Commission was responsible to conduct elections, during the term of such Parliament or legislature.
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.
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 such disclosure and the decision taken by the remaining members regarding such determination, shall be recorded in the minutes of the relevant meeting.
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.
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.
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.
The Commission shall be dissolved upon the completion of its mandate on a date fixed by the State President by proclamation in the Gazette.
The conditions of service, remuneration, allowances and other benefits of members of the Commission and the International Advisory Committee shall be determined by the Transitional Council after consultation with the State President.
Electoral Court is satisfied as to the existence of good and sufficient reason therefor as contemplated in subsection (2).
or (f) or 7(1) or (2); or any other reason which the Special Electoral Court may consider material and inconsistent with such member's continuance in office.
allow such appointment to lapse, provided there remains at least the minimum number of members provided for in section 5(1); or appoint some other suitably qualified person as a member for the unexpired portion of the term of the Commission.
The Commission may meet at any place in the Republic determined by the Chairperson, Vice-Chairperson or Co-Chairpersons, as the case may be, for the purpose of performing its functions.
Meetings may be convened at any time at the instance of the Chairperson, Vice-Chairperson or Co-Chairpersons, as the case may be, or at the instance of any two other members, and shall be convened at such intervals as circumstances may require.
A quorum for a meeting of the Commission shall be 75% of the members.
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.
The Commission shall in terms of section 18(b) certify that an election was substantially free and fair, only if at least 75% of the members present at the l meeting of the Commission concur.
The Commission may determine its own procedures to be followed at its meetings.
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.
workshops, seminars and meetings, as it may consider appropriate; and submit monthly reports in writing 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.
Directors or at its own initiative; and 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.
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.
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.
The International Advisory Committee may determine its own procedures to be followed at its meetings.
open and maintain its own financial accounts; and take such steps, including legal steps, as are necessary to give effect to this Act or any decision taken under this Act.
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 for such purpose.
The Commission shall budget for and be allocated the necessary resources or additional resources to enable it to exercise its powers and perform its duties and functions effectively.
shall, subject to the Exchequer Act, 1975 (Act No.
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.
The records referred to in subsection (1)(b) shall be audited by the Auditor-General.
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).
determine and certify the results of the election; and either certify in respect of the National Assembly and each other legislature that the election was substantially free and fair; or declare that it was unable to certify it as such.
There shall be established on the date on which the Commission is constituted, a directorate to be known as the Election Administration Directorate.
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.
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.
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.
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.
be under the supervision of the Commission; and carry out the instructions of the Commission, to which he or she shall be accountable.
The Chief Director: Administration may delegate the power to hear and determine 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 to any official of his or her directorate as he or she may consider necessary.
There shall be established on the date on which the Commission is constituted, a directorate to be known as the Election Monitoring Directorate.
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.
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.
carry out the instructions of the Commission, to which he or she shall be accountable; and have such other powers, duties and functions as may be prescribed.
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.
The Chief Director: Monitoring may delegate any power conferred upon him or her by or under this Act to any official of his or her directorate as he or she may consider necessary.
There shall be established on the date on which the Commission is constituted a secretariat to be known as the Election Adjudication Secretariat.
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.
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.
The Secretary shall have such other powers, duties and functions as may be prescribed.
The Commission shall, subject to subsection (2), establish such number of Electoral Tribunals with jurisdiction in respect of prescribed geographic areas as it may consider necessary to adjudicate and decide prescribed matters concerning alleged electoral irregularities and alleged infringements of the Electoral Code of Conduct.
An Electoral Tribunal shall consist of one person, 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 capacities, appointed to that office by the Commission.
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.
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 consider appropriate in the circumstances.
An Electoral Tribunal shall have such other powers, duties and functions as may be prescribed.
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 to review decisions from the Electoral Tribunals.
one shall be a suitable person, who may or may not be legally qualified or experienced.
An Electoral Appeal Tribunal hearing any appeal or reviewing any decision shall enquire into the matter in the prescribed manner, consider it and 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.
An Electoral Appeal Tribunal shall have such other powers, duties and functions as may be prescribed.
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.
(a) Subject to section 36(6)(a), the Special Electoral Court shall have power to review any decision of the Commission.
Any such review shall be conducted on an urgent basis, and shall be disposed of as expeditiously as possible.
Subject to section 36(6)(a), the Special Electoral Court shall have the power to hear and determine an appeal against 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.
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.
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).
The Special Electoral Court shall have power to remove any member of the Commission from office under section 11.
Subject to section 36(7), the Special Electoral Court shall have power to hear appeals against and review decisions of any Appeal Tribunal.
The Special Electoral Court shall determine its own practice and procedures and make its own rules.
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.
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.
The directorates and the Secretariat shall be dissolved on the date upon which the Commission is dissolved.
The Electoral Tribunals and the Electoral Appeal Tribunals shall be dissolved on final determination of the issues placed before them.
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.
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.
Subject to section 33(2), there shall be no appeal against any decision of the Commission.
Subject to section 33(1), 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.
Any interested person, party or candidate who or which feels aggrieved by any decision, 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 decision, order, penalty or sanction in issue.
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.
Any decision of the Commission in terms of section 18; and decision or order of the Special Electoral Court, shall be final and not subject to appeal or review.
No appeal against 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.
Subject to subsection (3), the Transitional Council may, after consultation with the Minister of State Expenditure, determine the remuneration and allowances payable to members of the Special Electoral Court.
Subject to subsection (3), the Commission may, after consultation with the Minister of State Expenditure, determine the remuneration and allowances payable to members of the Electoral and Appeal Tribunals.
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.
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 his or her knowledge in the performance of his or her duties in connection with the said functions, except in so far as the publication of such matter or information is authorized by law.
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, 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.
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.
The State Liability Act, 1957 (Act No. 20 of 1957), shall apply mutatis mutandis in respect of the Commission.
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.
any matter required or permitted to be prescribed in terms of this Act; and generally, all matters which in its opinion are necessary or expedient to be prescribed to achieve the objects of this Act.
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 for a period not exceeding two years.
Regulations under subsection (1) affecting State expenditure shall be made only after consultation with the Minister of State Expenditure.
This Act shall be called the Independent Electoral Commission Act, 1993, and shall come into operation on a date fixed by the State President, on the advice of the Transitional Council, by proclamation in the Gazette.