ConCourt dismisses Electoral Amendment Act challenge

The Electoral Amendment Act passed by parliament in October 2022 is not irrational and does not infringe any provision of the constitution, the Constitutional Court has ruled.

This means that an application brought by the Independent Candidates Association of SA (ICA) has been dismissed.

The judgment was handed down on Monday at the Constitutional Court in Braamfontein, Johannesburg by Justice Nonkosi Mhlantla.

This after the ICA brought an application against President Cyril Ramaphosa, Speaker of the National Assembly Nosiviwe Mapisa-Nqakula, and Home Affairs Minister Aaron Motsoaledi, among others.

The ICA was challenging the legislation for imposing stringent threshold requirements, among other things, for independent candidates. 

While the act gives provision for independent candidates to contest elections at provincial and national levels, it is criticised for being unreasonable, unfair, and unconstitutional.

This is due to various factors including the disposal of excess votes, limiting independent candidates to half of parliament’s seats, and addressing vacancies in parliament arising from resignations or deaths.

Unanimous judgment

When reading the unanimous judgment, Mhlantla said the act in its current form does not constitute any constitutional invalidity.

“The proposition that a vote for an independent candidate carries less weight when compared to a vote of a political party is without merit,” ruled Mhlantla.

“Independent candidates and political parties compete for same quota and the votes carry the same weights.”

She said the ICA did not prove that the split [of the 400 seats in parliament] is arbitrary and that the vote of independent candidates carries less weight.

“The applicant has failed to discharge the onus of proving the model articulated by parliament infringes on the equal protection provisions provided for in sections of the constitution.”

The case emanates from a court judgment handed down by the highest court in the land in 2020 ordering MPs to amend the Electoral Act to allow for independents to contest elections in 2024.

In its application, the ICA argued that if independent candidates met the threshold for seats in parliament their votes, even if they guarantee them more seats, would fall away, be discarded or given to political parties with most seats.

Requirement for signatures invalid

Meanwhile, the ConCourt ruled that the Electoral Amendment Act’s requirement that independent candidates produce up to 14 000 signatures before standing for election is unconstitutional and invalid.

One South Africa Movement brought the application to the apex court arguing that the requirement for signatures made it impossible for independent candidates to participate in the 2024 elections.

In this second judgment, Justice Jody Kollapen said the signature requirement constitutes a limitation of the applicant’s [One South Africa Movement] right to freedom of association, freedom to make political choices, and freedom to stand and hold public office if elected.

“The limitation is not justifiable. The purpose of the limitation is of low importance, wherein a contestation requirement has never existed in any previous elections,” said Kollapen.

Kollapen said the ruling is suspended for 24 months to give parliament the opportunity to remedy the constitutional defects giving rise to the constitutional invalidity in the Electoral Amendment Act.

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