By Thapelo Molefe
Parliament has reopened debate on long-standing gaps in South Africa’s referendum laws, after Deputy Speaker of the National Assembly Annelie Lotriet briefed the Portfolio Committee on Home Affairs on her Private Member’s Bill seeking to amend the Electoral Commission Act of 1996.
Presenting the Bill on Tuesday, Lotriet said it was necessary to align legislation with the Constitution, which already gives Premiers the power to call provincial referendums.
“The Act therefore fails to comply with the Constitution by giving effect to the Premier’s powers and functions,” she told the committee.
She emphasised that Parliament needed to address the gap before the matter ends up in the courts.
“I also think it is perhaps important that Parliament acts proactively instead of waiting for a court judgement which then will ask Parliament and give it a limited time to process such legislation,” she said.
Lotriet tabled the Bill in June 2023 after identifying inconsistencies between the Constitution and the Electoral Commission Act.
“It only allows for the President of the Republic to call a national referendum. The Act makes no provision for a Premier of a province to call for a referendum in their respective provinces,” she said, calling this a legislative “lacuna”.
The Bill introduces definitions of “voter” and “voting district”, differentiates between national and provincial referendums, and repeals the 1983 Referendums Act, which she said had been rendered redundant.
Democratic Alliance MP Adrian Roos said the Bill addressed a clear constitutional gap.
“The Constitution is the supreme law of South Africa… and all other laws and conduct must comply with it,” he said.
He acknowledged past concerns around referendums, adding: “Sometimes you get surprising results that you might not necessarily expect with referendums.”
uMkhonto weSizwe MP Sihle Ngubane questioned why the Bill had not been processed when first introduced.
“You said it was presented in Parliament on the 6th Administration and later on it was abandoned. My question would be to know why it was abandoned and was never taken forward,” he said.
Ngubane also raised concerns about people attempting to use referendums for “nefarious means,” citing current campaigns that aim to call a referendum for the independence of the Eastern Cape and groups “driving nefarious means” on the independence of the Western Cape.
He called for the Parliamentary Legal Office to guide the committee, saying this was necessary to be advised correctly in terms of the law about this Bill.
Responding to concerns about delays, Committee chairperson Mosa Chabane explained that the Bill lapsed when the previous parliamentary term ended and was revived for processing in the current term.
He said the committee would source legal opinions and allow members to consult their parties before formally considering the Bill’s desirability.
Lotriet confirmed she would submit the legal opinion she obtained when drafting the Bill to support the committee’s deliberations.
The committee will resume its consideration of the Bill after members consult their political parties and receive legal advice as it continues parliamentary preparations ahead of the 2026 Local Government Elections.
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