Constitutional Court dismisses challenge to electoral law’s 200-seat split

South Africa's apex court has ruled the 200/200 split in the Electoral Amendment Act passes constitutional muster.

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

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

The court disagreed with the argument that a vote for an independent candidate will carry less weight than one for a political party.

“The applicant has not established that the impugned legislation is irrational nor that it infringes a provision in the Bill of Rights. Therefore, it has not made out a case to justify the declaration of constitutional invalidity.”

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The application was dismissed and there was no order on costs.

Independent candidates will next year be able to contest elections for the first time in democratic South Africa, the result of a 2020 judgment of the ConCourt. 

The ICA and One Movement South Africa  took issue with aspects of the new Electoral Amendment Act, which they said were unfair and unconstitutional. 

The ICA objected to the split between the 200 seats in parliament reserved for “regional” votes (or what used to be called the provincial list) and the 200 seats reserved for national or “compensatory” votes because independent candidates can only stand for the regional seats.

The purpose of the compensatory seats is to ensure the National Assembly is “in general” proportionally representative of the parties that stood for office in the election, a requirement of the constitution.

Since independent candidates can only ever get one seat, they are unable to fulfil the requirements of proportional representation, which is why they are not included in the compensatory list.

The problem is that with the formula for how votes are calculated, if a voter votes for the same party on the regional and compensatory lists, the party needs fewer votes — about half — than an independent candidate to get a seat in parliament. 

The ICA argued it was irrational in law and breached the right to free and fair elections and the right to stand for public office: independent candidates have to “go through the eye of a needle” to get a seat while political parties “walk through open doors”. It said the formula was “lopsided”.

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