South Africans cast their votes at the Joburg City Hall voting station on 1 November 2021. Picture: Michel Bega
Although the Constitutional Court (ConCourt) ruled the splitting of seats in the National Assembly was in line with the Constitution, there was one aspect of the law declared invalid.
On Monday, the ConCourt delivered its ruling on the constitutionality of the Electoral Amendment Act.
The Independent Candidates Association of South Africa (ICA) and Build One South Africa (Bosa) approached the ConCourt after the legislation was signed into law by President Cyril Ramaphosa in April.
The applicants argued that the Act, which will allow independent candidates to contest provincial and national elections in 2024, was unconstitutional and irrational.
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They, among other things, stated in their papers that the Act’s seat allocation was inconsistent with the rule of law and asked for the provision in the legislation to be changed as a remedy.
According to the Act, independent candidates will only be 200 of the 400 National Assembly seats.
The National Assembly is divided into 200 “regional” seats and 200 “compensatory” seats drawn from proportional representation (PR) lists.
This means 200 seats are reserved for the national list and will be contested only by political parties.
The remaining 200 seats, meanwhile, are divided up among the nine regions (provinces) contested by both parties and independent candidates.
Reading out the unanimous judgment, Justice Nonkosi Mhlantla said the ConCourt held the circumstances of the case were exceptional and raised important issues about the fairness of the 2024 elections and, therefore, direct access should be granted to the ICA.
Mhlantla said the rationality of the 200 regional seats and 200 national seats split hinged on whether it results in proportional representation or “avoids the risk of overhang”.
“The dispute between the parties is, therefore, not whether it is irrational for Parliament to distinguish between regional and compensatory seats in the National Assembly, rather the dispute concerns the number of compensatory seats that ought to be reserved for political parties, with the applicant proposing a 350/50 split on the basis that 200/200 split debases the value of votes for regional seats.
“Even if the 350/50 split proposed by the applicants might arguably be fairer and achieve proportionality, sections 46(1) and 105(1) of the Constitution expressly leaves the choice of the electoral system in Parliament’s hand,” she said.
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The judge said the court held that the 200/200 split passed the constitutional muster.
“There is virtually no risk of overhang,” Mhlantla continued.
Mhlantla also indicated that 200/200 split passes the rationality test.
“It is, therefore, clear that a law that affects different categories of people differently doesn’t prove to be a violation of a right to equality as provided in section 9 of the Constitution. The person alleging the violation should provide evidence to support the alleged violation.
“The proposition that a vote for an independent candidate carries less weight when compared to a vote for a political party is without merit.
“Independent candidates and political parties compete for the same quota in regional elections and votes carry the same weight. There is differentiation in respect of regional seats,” she explained.
The ICA’s application was, therefore, dismissed with no costs order.
The ConCourt also dealt with Bosa’s challenge against the number of signatures required to contest elections.
According to the Act, both independent candidate and political parties need to submit to the Electoral Commission of South Africa (IEC) a list with names, identity numbers, and signatures of voters in their support.
They needed to garner 15% of the total number of votes required to obtain a seat for the region they are contesting.
Delivering two judgments, Justice Jody Kollapen said while Chief Justice Raymond Zondo found the 15% signature requirement didn’t negatively impact independent candidates or affect anyone’s rights, he was of the view that the requirement was unconstitutional.
Kollapen argued that the signature requirement may be a barrier to independent candidates contesting elections, saying elections weren’t just about numbers nor “exclusively about winners and losers”.
“As such, the second judgment concludes that the signature requirement constitutes a limitation of the applicant’s right to freedom of association, freedom to make political choices and to stand for and to hold public office if elected,” he said.
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Therefore, the court, in its majority, agreed with Bosa that the 15% signature was too high and replaced it by 1 000 signatures for independent candidates instead.
Parliament has been given two years to fix the signature requirement provision.
“Accordingly, the second judgment orders a declaration of constitutional invalidity. It finds that there would not be sufficient time to refer the matter for Parliament to address the constitutional invalidity before the next election. In these circumstances, practical considerations warrant a remedy in order to address the consequences of the order of invalidity.
“The second judgment accordingly orders, as an interim remedy, a striking out in the impugn provision of the 15% quota and in its place a reading in of a 1 000 signatures,” the judge ruled.
Bosa’s challenge on the seat recalculation method was, however, dismissed by the majority of the court although Justice Leona Theron, in a third judgment, raised concern over its constitutionality.
“The result of the seat recalculation is that votes cast for large political parties count more than votes for small political parties or independent candidates. The third judgment finds that this favourable treatment of large political parties constitutes a primie facie limitation of the rights of voters, independent candidates and small political parties under Section 19 of the Constitution.
“Further, the third judgment emphasises the failure of the respondents to justify the limitation, however, the third judgment concludes it would not be in the interest of justice to decide this challenge due to the matter not being sufficiently explored,” Kollapen said.
The court granted a partial cost order in favour of Bosa.
“The second, fourth and fifth respondents, jointly and severally, are to pay 50% of the applicant’s costs, which shall include the cost of two counsel.”
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