ConCourt ruling on electoral law welcomed

04 December 2023 - 20:30
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The election theme announced on October 24 is 'Your democracy — Own it'. File photo.
The election theme announced on October 24 is 'Your democracy — Own it'. File photo.
Image: Alaister Russell/Sunday Times

Parties and civil society organisations have welcomed the Constitutional Court’s ruling on the Electoral Amendment Act while indicating the battle for an inclusive electoral regime may not be over.

The court dismissed an application by the Independent Candidates Association (ICA) which wanted the number of National Assembly seats independent candidates can contest in next year’s general elections increased from 200 to 350.

In an unanimous judgment read by justice Nonkosi Mhlantla, the ConCourt on Monday dismissed the challenge, saying the applicant was not able to prove the 200/200 split of seats was irrational.

It upheld a challenge by One Movement South Africa (OSA) — the organisation that gave rise to party Build One South Africa (Bosa) — that the 15% signature quota required for independent candidates to contest elections is unconstitutional. The court ordered this provision be replaced by the requirement of 1,000 signatures.

Bosa welcomed the judgment, saying it confirmed the rules of play for independent candidates standing for election in next year’s national and provincial elections.

“While we respect the court and accept its judgment, it is disappointing that in effect the judgment favours the status quo dominated by old, stale political parties. New entrants and independent candidates face an uphill battle with the odds stacked against them,” said Bosa spokesperson Roger Solomons.

“Individuals will lose out on the proportional vote, which can only be captured by a political party. Therefore, our decision to form Bosa as a political party to benefit from proportionality has been vindicated and we will contest next year’s elections on that basis.”

Solomons welcomed the court’s decision to remedy the act by reading in a clause that independent candidates and new entrants only require 1,000 signatures to contest elections.

Bosa reiterated its view that parliament passed a law that makes it difficult for independents and community organisations to stand alone and compete in elections and undermines their prospects of success.

It said the fight for independent candidates to be fairly accommodated was far from over and its new MPs will raise the issue in parliament to attain a constituency-based system, more cabinet appointments from the public and the direct election of the president.

While ICA founder Michael Louis was sad at the dismissal of their challenge, he welcomed the court’s decision.

“Forever and a day we will be pleased that as the ICA we challenged this act because if we had an election and one of the political parties or independent candidates were not satisfied with the result, all they would have done is say the act is unconstitutional.

“Now we know what the ConCourt judgment is and they have laid the foundation for an Electoral Act to govern us for the next 50 years,” said Louis.

“I am sad, but it’s a journey. We continue to walk this journey to improve our democracy.”

Louis said he accepted the judgment because he believed the apex court was independent and that the judges applied their minds.

“But that doesn’t mean we accept everything they say. I still believe there’s interpretational differences but that is because we are the applicants.

“We still believe you are going to find a situation where an independent candidate might get 67,000 votes and not qualify for a threshold of, say 90,000. and a political party might get 45,000 votes in the compensatory seats and they will qualify for parliamentary seats while an independent candidate will not.

“It will only be proven that the courts were right once the 2024 elections come through.”

Louis said the ICA’s interest is to promote independent candidates and to make sure they have an equal footing to making a difference in the political landscape.

The Electoral Commission of South Africa (IEC) said the judgment provides certainty in the preparations for the elections.

The IEC said it will put in place the regulations necessary to give effect to the revisions of the electoral system.

It believed the distribution of seats in the National Assembly between the compensatory tier and the regional tier was rational and satisfied the constitutional requirement for general proportionality.

The confirmation of the ConCourt is that the contestants in the regional tier of the elections are subject to the same number of votes per seat, it said.

The commission will finalise adjustments to the signature requirements portal so prospective independent candidates and unrepresented parties can start collecting and capturing.

Parliament said the ruling underscored the rigorous process it undertook to consider all pertinent issues relating to proportional representation as guided by the constitution.   

With regards to the invalidation of the 15% signature quota, it said an amendment will be effected to ensure the law is aligned with the judgment.

The court gave parliament 24 months to remedy the constitutional defects that gave rise to the invalidity.

“Parliament remains unwaveringly committed to protecting every citizen’s right to participate in elections freely and fairly.”


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