Next elections will look drastically different after court’s ‘long overdue’ electoral ruling

South Africa’s next general elections – scheduled to take place in 2024 – will likely look drastically different, after the Constitutional Court declared the Electoral Act unconstitutional and gave parliament 24 months to come up with a new system which allows independent candidates to run for office.

The court did not order a reading-in in the interim and Constitutional Law expert Pierre de Vos on Thursday afternoon explained this was because “what is required is a completely new electoral system”.

He said at this stage it was impossible to say exactly how this new system would function.

“The judgment requires parliament now to devise a new electoral system that is going to be both proportional and allow independent candidates to run. It might look like the system that we have at local government, it might look different. We don’t know,” he said.

Political analyst Sinedoda Fikeni said what was needed was “a unique solution informed by the lessons we have learnt over the last 26 years and using the best international examples as the benchmark”.

Fikeni described the court’s ruling as “a catalyst for much-needed electoral reform”.

“The closed party list system was well suited for the time of transition, when you wanted as many parties as possible in parliament rather than extra-parliamentary activities, which could be destabilizing,” he said. “But now that, in the main, everybody has bought into the idea of being part of a democracy, we have identified certain defects in the Act”.

He said looking forward, we might see “a far more nuanced system” take shape in South Africa.

“Hybrid systems, for example, balance both constituency- based election and the party system,” he said.

In declaring the act unconstitutional, Justice Mbuyiseli Madlanga said that it limited the right to freedom of association. He said if an individual was free to associate, he or she must also be free not to associate.

“Although for some, there may be advantages in being a member of a political party, undeniably political party membership also comes with impediments that may be unacceptable to others,” he said, “It may be too trammelling to those who are averse to control, it may be overly restrictive to the free-spirited, it may be censoring to those who are loathe to be straightjacketed by pre-determined party decisions. It just may at times detract from the idea of a free self.”

The matter has been in and out of court since late 2018, when the New Nation Movement (NNM) – a local non-profit that describes itself as “a non-partisan, all-inclusive peoples’ movement” – first approached the Western Cape High Court with an urgent application to have the act declared unconstitutional.

The application was dismissed, prompting the NNM to turn to the Constitutional Court early last year and launch an urgent and direct access application for leave to appeal. The application court did not deem the matter urgent, though, and it only ended up being heard in August.

Sandile Swana, also a political analyst, on Thursday described the court’s ruling as “long overdue” and said the end goal should be direct representation.

“The current system monopolises seats because the political parties create a bottleneck. You cannot access those positions except to go through a political party and so us, as citizens, then don’t have any control”.

Asked about the massive resources required for an election campaign, Swana pointed out that independent candidates had already won seats in many local municipalities.

“So the right must be there, we must not assume that resources will not be found. Even among the sponsors of political parties, some may want to sponsor an independent candidate,” he said.

The Organisation Undoing Tax Abuse (Outa) – which was admitted as a friend of the court in this matter – and former Johannesburg mayor and founder of The People’s Dialogue Herman Mashaba have both welcomed the court’s ruling.

Mashaba in a statement on Thursday afternoon also voiced his support for a mixed electoral system – “providing for at least half of the 400 seats to be directly elected through constituencies” – going forward.

“This would allow for a situation, for the first time in democratic South Africa, where voters could hold individual members of parliament accountable for their performance and their voting records,” he said.

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