The Constitutional Court is on Monday expected to deliver judgment in the highly-contested Electoral Amendment Act matter.
The matter was brought by the Independent Candidates Association and Build One South Africa (Bosa), who are challenging the legislation for imposing stringent threshold requirements, among other things, for independent candidates.
The act gives provision for independent candidates to contest elections at provincial and national levels.
It has been criticised for being unreasonable, unfair, and unconstitutional 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.
Bill passed into law
In October 2022, the National Assembly passed the bill into law. A whopping 232 MPs voted in favour of the bill while 98 MPs gave it the thumbs down. Three abstained.
In April, President Cyril Ramaphosa signed the bill into law.
The impetus behind this legislative change was a Constitutional Court ruling in June 2020 that declared the Electoral Act unconstitutional for its prohibition of independent candidates from running for political office.
Earlier in 2023, Bosa and the Independent Candidates’ Association brought a legal challenge contending that the act was unconstitutional.
They asserted that the act unfairly limited the involvement of independent candidates in elections and their presence in the National Assembly, creating an imbalance compared to candidates affiliated with political parties.
Unfair criteria
Meanwhile, civil organisations said the law was placing unfair criteria on independent candidates to contest elections.
“The responsibility that was set at the foot of parliament in June 2020 was to amend the unconstitutionality of the current electoral system in a manner that would remove the requirement of political party affiliation in order to run for public office,” said Bishop Malusi Mpumlwana, general secretary of the SA Council of Churches.
“Individual independent candidates are made to compete unfairly with political parties for votes, and in this scheme, they will also stand to lose the impact of votes beyond the basic number required for a seat.
“If a seat in parliament is worth 50 000 votes, and an independent candidate gets 500 000 votes, only 50 000 will count and all of 450 000 ballots cast away,” said Mpumlwana.
“Yet a political party with the same number of votes will lose no votes and register 10 MPs. Thus, on this alone, allowing the bill to pass would be a travesty of justice.”
Monday’s judgment will seek to clarify if section 31B (3) of the Electoral Amendment Act 2023 restricts section 19 of the constitution.
Specifically, it questions the constitutionality of requiring independent candidates to gather signatures from registered voters amounting to 15% of the quota in the previous elections in a given region.
Additionally, the court will assess if the recalculation method outlined in schedule 1(a) of the act, applied when a seat becomes vacant in the National Assembly or provincial legislature, unfairly benefits larger political parties at the expense of smaller parties and independent candidates.
