Parliament and government argue independent candidates’ court challenge is ‘stillborn’

There was no evidence before the Constitutional Court that independent candidates would not be able to gather the 11,000 to 14,000 signatures required to contest the elections next year, the court heard on Wednesday.

“That should be the end of the case,” said counsel for parliament, Karrisha Pillay SC on Wednesday. Steven Budlender SC, counsel for the government, agreed: “Without [this] evidence, this challenge is stillborn.”

The highest court heard the second day of two urgent applications by organisations representing independent candidates, who say that the Electoral Amendment Act 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. Wednesday’s hearing focused on the new requirement that independent candidates, as well as political parties that are not already represented in parliament, must get between 11,000 and 14,000 signatures from supporters to contest national elections.

On Tuesday, One Movement South Africa (OSA) argued that it imposed a pre-election barrier that is unconstitutional. But on Wednesday Pillay took the court painstakingly through OSA’s evidence.

She said an applicant to court did not win an argument “by simply alleging a right is infringed”. OSA had to bring evidence. It had to show that the “probable consequence” of the signature requirement was that independent candidates would not be able to stand. Yet OSA had not said anywhere that collecting the signatures was too costly, nor that there were capacity constraints, she said. 

OSA’s counsel, Andrea Gabriel SC, was closely questioned by chief justice Raymond Zondo about this lack of evidence. She admitted that the affidavit was lacking but said these were urgent proceedings.

This whole idea of managing elections and this bogeyman of an unmanageable ballot paper arose only because this court said that independent candidates must also get a shot.

—  Justice Owen Rogers

OSA had said the signature requirement was a barrier in submissions to parliament and to the president. These submissions had been “incorporated by reference” into their affidavit, she said. The only thing that the submissions could mean is that independent candidates could not meet the requirements.

“But if that is what you mean, isn’t it the easiest thing to say that in the affidavit?” said Zondo. 

Pillay was questioned closely by the bench on the rationale for the new signature requirement, with Zondo suggesting it was “suspicious” that such a high number of signatures was thought necessary by parliament only now, when independent candidates were allowed into the race.

Political parties have to obtain 1,000 signatures before they can be registered. OSA asked the court to make the 1,000 signature registration requirement applicable to independent candidates and new entrant parties and that the other contestation requirement be done away with entirely. 

But Pillay argued that the purpose of the registration requirement was different to that of the contestation requirement. While the purpose of collecting 1,000 names for registration was to ensure that only serious candidates entered the race, the contestation requirement purpose was broader: to ensure a manageable ballot paper. She said that the electoral commission’s evidence, on examining the trends, was that the number of parties contesting elections was increasing but the number of parties that were represented in parliament was not.

With independent candidates now added to the mix, it meant the possibility of a ballot paper that could run to many pages, with all the costs and difficulties that entailed, she said. 

Justice Owen Rogers questioned her closely on this, saying that in 2021, the electoral commission had — based on trends gleaned from the most recent election — put the number of signatures required up — to 1,000 from 500. This was before independent candidates had entered the picture and the electoral commission must have thought this was sufficient. “This whole idea of managing elections and this bogeyman of an unmanageable ballot paper arose only because this court said that independent candidates must also get a shot,” he suggested.

Later, Budlender said it was true that the new signature requirement was a result of the entry of independent candidates, but this was not due to any “Machiavellian intent” on the part of the parties in parliament. He said the idea came from an independent expert study. The idea was supported by a European code of good practice, which the friend of the court, the Rivonia Circle, had referred to, he said. The formula used by parliament that led to the 11,000 — 14,000 signatures — of “15% of the quota for that region in the preceding election” — was also supported by the code. 

Budlender said it was true there was no scientific study that led parliament to choose 15%, as opposed to 10% or 20%. But once the court accepted that a threshold of signatures (or some kind of percent) was lawful, it was parliament’s arena to draw the line somewhere — as long as it was reasonable.

Judgment was reserved.