ConCourt may insist on reformed electoral act being in place before elections

There is a growing fear that the Constitutional Court (ConCourt) may not grant the extension requested by parliament to deal with the proposed reforms to the Electoral Act.

The ConCourt expected parliament and the department of home affairs to file papers stating reasons why they had not dealt with the matter.

This emerged during a webinar on the Electoral Laws Amendment Bill, organised by the Electoral Institute for Sustainable Democracy in Africa (Eisa), Council for the Advancement of the South African Constitution (Casac) and the universities of Witwatersrand and Pretoria, and facilitated by Rivonia Circle’s policy programme director Lukhona Mnguni.

Some speakers, including Professor Daryl Glaser, were concerned about the potential for bigger political parties to steal the seats of independents who died and independents who might win more votes or seats than they contested.

Glaser, a member of the home affairs’ ministerial advisory committee, said this was “technical democratic problem”.

Concerns over delays

He was unhappy such ballots may be redistributed to political parties.

Casac executive director Lawson Naidoo said the ConCourt was concerned about the delay in processing the June 2020 judgment.

It wanted parliament and the minister of home affairs to account for the delay.

“It’s clear it’s not going to grant the extension… If it is not granted it will leave us with some quandary,” Naidoo said.

He was concerned because the ConCourt had stipulated the law should be in place before the 2024 national elections.

Stakeholders felt time was of the essence, as the deadline could be easily missed due to various processes that would have to be followed and possible litigation.

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He doubted whether the Electoral Commission of South Africa would be able to put systems in place in time for the 2024 polls.

Bill riddled with legal potholes

Grant Masterson, head of governance programme at Eisa, said in its current form, the legislation had many deficiencies which opened it to litigation, yet it was meant to address deficiencies.

However as the Bill was still in process, they expected improvements, including changes in language. The possibility still existed for bigger political parties to take over seats won by independents.

An independent who died would not be replaced until the following election because no by-elections would be conducted to fill the vacancy.

In addition, when an independent councillor won enough votes to obtain more than one seat, the extra votes would be forfeited to bigger parties.

He said the incentive for independents to contest provincial legislature rather than National Assembly seats, as proposed, might result in the “institutionalised exclusion” the ConCourt had identified and was concerned about.

On the contrary, the judgment was aimed at removing the exclusion of persons who wished to contest parliamentary seats outside of the political parties.

Masterson was also concerned that the threshold for independents to get a seat was set too high, far higher than political parties which had fewer votes to obtain to qualify for a seat.