Government ‘did what it was meant to do’ on electoral reform, ConCourt hears

The Electoral Amendment Act was a case of the government doing what it was meant to do, the Constitutional Court heard on Tuesday. 

The highest court was hearing, over two days, two urgent applications by organisations representing independent candidates, who say that the new electoral law is unfair and unconstitutional.

Independent candidates will next year be able to contest elections for the first time in democratic South Africa — the result of an earlier judgment of the ConCourt. 

Counsel for the minister of home affairs, Steven Budlender SC, said this judgment had presented government and parliament with a “very knotty problem”: how do you introduce independent candidates into a system designed mainly around proportional representation? 

He said the government had opted for a “minimalist approach” to amending the law for the time being. Parliament had consulted extensively and publicly and had followed the advice of counsel.

He said the fundamental constitutional principle when it came to elections was that parliament chose the electoral system according to broad constitutional principles, such as that there must be a proportional representation system. As long as the system was rational in law and did not breach fundamental rights, parliament should be given the latitude when it came to the nuts and bolts. 

However, the organisations before the court — the Independent Candidates Association (ICA) and One Movement South Africa (OSA) — took issue with aspects of the Electoral Amendment Act, which they said were 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.

But 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 much fewer votes — about half — than an independent candidate to get a seat in parliament. 

“On the face of it, that would strike the ordinary person: there’s something wrong there,” suggested justice Owen Rogers.

The ICA argued that 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”, said ICA’s counsel Griffiths Madonsela SC.

He argued that the unfairness “strikes at the heart of the electors’ right to choose who represents them” because the formula was “lopsided”. The ICA acknowledged there was a need for compensatory seats but said there did not need to be so many of them. The same thing could be accomplished with a 350/50 split and this would level the playing field, argued Madonsela.

But Budlender said there was another purpose to the compensatory seats: to prevent “overhang” — where, due to a party having more votes in a region than they were proportionally entitled to overall, there was a candidate (or candidates) left without a seat.

If this happens, the electoral commission would be unable to declare the election result and it is a “crisis”, said Budlender. On a 200/200 split, the chances of this are zero, he said. On a 350/50 split, this could happen once in every six elections, he said. 

Budlender and counsel for parliament, Karrisha Pillay SC, were closely questioned by the bench on whether the risk over overhang was as “dire” as they claimed. Pillay said, according to the evidence before the court, it was not a “negligible” risk and the risk was “irremediable”. 

OSA’s concerns with the amendment were different: one was about number of signatures that independent candidates needed to contest the elections. According to the new electoral law, parties and independent candidates who are not represented in parliament must collect between 10,000 and 14,000 signatures to contest the national elections, said Andrea Gabriel SC, OSA’s counsel. 

To register as a political party, a party needs only 1,000 signatures. But the parties that are already in parliament are not subject to the new requirement to contest. This amounted to new entrants being subjected to an increase in the number of signatures they needed — of between 1,000% and 1,400% for national elections. 

“Self-evidently that is a dramatic increase,” said Gabriel. 

She said the new requirement was a “pre-election barrier. It’s self-evident.

“If the 10,000 to 14,000 signatures have not been obtained, you don’t enter the race,” she said. While government and parliament said the purpose was to keep out frivolous or unserious candidates, this could be achieved with the 1,000 signature threshold, she said.

Max du Plessis SC, counsel for friend of the court the Rivonia Circle, said the new signature threshold was a “burdensome” barrier. He referred to previous ConCourt judgments saying that, when it came to elections, constitutional rights must be exercised in a way that levelled the playing fields and gave full weight to the right to free and fair elections. 

While parliament has the latitude to regulate elections, “it must do so carefully. It must do so in a way that will not lead to an uneven playing field,” he said.

Here, the barrier of the number of signatures was compounded by the shortness of time candidates had to collect them. He added that in other countries similar to South Africa, the number of signatures required was not as high — “in terms of real numbers”.

The hearing continues on Wednesday.