The Constitutional Court has found the 15% signature quota for independent candidates to contest elections unconstitutional.
It ordered it be replaced by the requirement of 1,000 signatures.
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.
According to the Electoral Amendment Act, parties and independent candidates not represented in parliament must collect between 10,000 and 14,000 signatures to contest national elections.
The One South Africa (OSA) movement took issue with the number of signatures independent candidates needed, saying it was unfair and unconstitutional.
To register as a political party, a party needs only 1,000 signatures, but parties already in parliament are not subject to the new requirement. This meant new entrants had to increase the number of signatures they needed between 1,000% and 1,400% for national elections.
On Monday, the apex court agreed that at 15% of the regional quota, the signature requirement limits the right to stand for public office and other associated rights, saying the state had not shown the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
In the majority judgment, judge Jody Kollapen said the 15% signature requirement went beyond a mere requirement and had a limiting purpose.
“It would place a burden on independent candidates seeking to contest elections and require immense time, resources and energy to meet the 15% signature requirement.".
This was different to the regulatory framework that requires voters’ names and details to be on the voters’ roll and a bar coded identity document to identify them on election day which gives effect to the right to vote, he said.
“In such an instance there is an inextricable and necessary link between the positive steps the government takes and the realisation of the right to vote. Those requirements are hardly burdensome.”
Most of the ConCourt judges concluded the signature requirement constitutes a limitation of the applicants’ right to freedom of association, freedom to make political choices and to stand for and hold public office if elected.
The limitation is not justifiable, according to section 36 of the constitution, they found.
The court ordered a declaration of constitutional invalidity.
It found there will not be sufficient time to refer the matter for parliament to address the constitutional invalidity before the next elections expected at the latest in August 2024.
It said in these circumstances, practical considerations warrant a remedy to address the consequences of the order of invalidity and therefore ordered as an interim remedy a striking out of the impugned provision of 15% quota and in its place a reading-in of 1,000 signatures.
TimesLIVE
Electoral law: ConCourt invalidates 15% signature requirement as unconstitutional
Image: Jackie Clausen
The Constitutional Court has found the 15% signature quota for independent candidates to contest elections unconstitutional.
It ordered it be replaced by the requirement of 1,000 signatures.
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.
According to the Electoral Amendment Act, parties and independent candidates not represented in parliament must collect between 10,000 and 14,000 signatures to contest national elections.
The One South Africa (OSA) movement took issue with the number of signatures independent candidates needed, saying it was unfair and unconstitutional.
To register as a political party, a party needs only 1,000 signatures, but parties already in parliament are not subject to the new requirement. This meant new entrants had to increase the number of signatures they needed between 1,000% and 1,400% for national elections.
On Monday, the apex court agreed that at 15% of the regional quota, the signature requirement limits the right to stand for public office and other associated rights, saying the state had not shown the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
In the majority judgment, judge Jody Kollapen said the 15% signature requirement went beyond a mere requirement and had a limiting purpose.
“It would place a burden on independent candidates seeking to contest elections and require immense time, resources and energy to meet the 15% signature requirement.".
This was different to the regulatory framework that requires voters’ names and details to be on the voters’ roll and a bar coded identity document to identify them on election day which gives effect to the right to vote, he said.
“In such an instance there is an inextricable and necessary link between the positive steps the government takes and the realisation of the right to vote. Those requirements are hardly burdensome.”
Most of the ConCourt judges concluded the signature requirement constitutes a limitation of the applicants’ right to freedom of association, freedom to make political choices and to stand for and hold public office if elected.
The limitation is not justifiable, according to section 36 of the constitution, they found.
The court ordered a declaration of constitutional invalidity.
It found there will not be sufficient time to refer the matter for parliament to address the constitutional invalidity before the next elections expected at the latest in August 2024.
It said in these circumstances, practical considerations warrant a remedy to address the consequences of the order of invalidity and therefore ordered as an interim remedy a striking out of the impugned provision of 15% quota and in its place a reading-in of 1,000 signatures.
TimesLIVE
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