Concourt eases path to polls for independents

Key rulings by the constitutional court have made it easier for independent candidates to qualify to stand in national elections for the first time next year, but left the even split between provincial and proportional representation seats in the new Electoral Act undisturbed.

A majority ruling by the court on Monday found that section 31(B)(3) of the Act unjustifiably limited several constitutional rights by requiring that candidates collect signatures equal to 15% of the votes they would need to secure a seat in a constituency, in order to stand for election.

Because of the size of constituencies, this would amount to upwards of 10 000 signatures.

In an unusual step, the majority judgment by Justice Jody Kollapen ordered that this requirement be substituted with a provision lowering the number of signatures to 1 000.

The figure is the same number of signatures any party, regardless of whether they are already represented in the legislature, must submit to register for polls. The substitution order was made because there was too little time left before the polls to ask parliament to amend the Act in this regard. 

The court found that the threshold imposed in the Act restricted the rights in section 19 of the Constitution to freedom of association, to make political choices and to stand for political office.

“It would place a burden on independent candidates seeking to contest elections, would require immense time, resources and energy to invest in order to meet the 15% requirement,” Kollapen said.

“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 hold, public office, if elected.”

He found that the limitation was not justifiable in terms of section 36 of the Constitution.

“The purpose of the limitation is of low importance where a contestation requirement has never existed in any previous elections, despite increasing trends that demonstrated greater contestation, coupled with poorer successful outcomes.”

He said the nature and the extent of the limitation was arbitrary because parliament, in its deliberations on the Act, consistently relied on the wrong quota of 44 000 of votes when lawmakers arrived at the 15% requirement.

The correct quota, he added, averaged 83 000, and this was a fundamental flaw that materially affected the outcome of the legislature’s deliberations.

Furthermore, the signature requirement, which applies to both new political parties and independent candidates, was excessive when compared with those in foreign jurisdictions.

“The second judgment orders a declaration of constitutional invalidity,” Kollapen said.

“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 impugned provision of a 15% quota and in its place a reading in of a 1 000 signatures.”

The order was suspended for 24 months to give parliament time to cure the defect in the Act.

Kollapen went on to warn that a signature requirement per se could prove a barrier to participation by independent candidates.

“We must be cautious and guard against such a requirement becoming a barrier to contestation. In effect, the signature requirement if left undisturbed may render somewhat hollow the enormous promise that New Nation Movement heralded in unlocking and giving to section 19 of the Constitution fully and properly,” he said.

The first judgment, written by Chief Justice Raymond Zondo, took a fundamentally different view on this score.

It faulted the requirement of 1 000 signatures written into the Act by the second as being too low to determine whether an independent candidate has a reasonable prospect of winning a seat.

Zondo found that though the requirement represented a limitation of the right to stand for public office, it was not a complete denial of said right, but a regulatory provision. 

Here, Kollapen countered that it cannot be so that an act that seeks to regulate the exercise of a right is forever shielded from constitutional scrutiny as a limitation of that right.

In the landmark New Nation Movement NPC and Others v President of the Republic of South Africa and Others case, the apex court in 2020 declared the Electoral Act unconstitutional and invalid to the extent that it did not allow independent candidates to run for elected office. 

This necessitated an overhaul of the Act, signed into law in April, which met with the challenges ruled on by the court on Monday.

The attack on the signature requirement was mounted by Build One South Africa (Bosa), the new political party headed by former Democratic Alliance leader Mmusi Maimane. It was initially founded as an umbrella movement for independent candidates.

It also, unsuccessfully, challenged the provision in the Act under which independent candidates will forfeit votes won in excess of the number necessary to secure a seat, or won in more than one region.

Votes obtained by independents above this threshold will go to the party that received the most votes in a particular constituency. This meant that parties may get more than their proportional share of seats, the argument went. Votes obtained by a single candidate in a second region will be forfeited and the candidate will be allocated a seat in the region where he or she won the most votes.

Bosa’s challenge was heard together with another by the Independent Candidates Association (ICA), which also contended that the manner in which seats were split in the current electoral model was unfair to independents in that they were confined to the regional ballot.

Barring independent candidates from standing from standing on the proportional representation list meant that they are allowed to contest only half of the 400 seats in the legislature. 

The ICA’s challenge to the rationality of the 200/200 split was unanimously rejected, in one of four judgments by the court on challenges to the Act on Monday. 

The court held that the split passed constitutional muster in that it was rational, though that of 350/50 proposed by the association might be fairer. It noted that the Constitution allowed parliament wide latitude as to which electoral model was followed.

On the challenge to the recalculation provisions in the Act, it held that Bosa failed to file counter the reasoning put forth by parliament and the minister of home affairs for the manner in which it had calculated the split, and that therefore this must be accepted.

The court held that it was inevitable that votes that went towards independent candidates would affect inter-party proportional representation in legislatures. But by discarding the votes won by independents who did not clear the threshold to secure a seat, that effect had been limited by lawmakers.

Parliament in its papers argued that forfeiture of those votes helped to ensure that they did not continue to influence the outcome of the reallocation of the seat in question.

Zondo rejected Bosa’s seeming submission that the reallocation went against the will of voters who cast ballots for independent candidates because they rejected party politics.

He said as he understood its argument it “criticises the notion that votes that were cast for an independent candidate can end up being awarded to a political party”.  

He concluded: “There is no merit in this suggestion …  just because a voter has voted for an independent candidate does not mean that he or she necessarily does not want political parties.”

Kollapen concluded with the reasoning and the conclusion on the recalculation challenge.

A third judgment, written by Justice Leona Theron with Justice Owen Rogers concurring, held that the recalculation provisions raised constitutional concerns because votes cast for political parties carried more weight than those that went to smaller parties or independents. 

Theron said that this pointed to a limitation of voters’ section 19 rights but said the question was not sufficiently explored to make a ruling on it.

South Africa has operated under a proportional representation system for all of its democratic history. But the Constitution enshrines the right of every citizen to stand for elected office and there have been various calls since the 1994 elections for the country to move to some form of a constituency model.

Zondo, in his capacity as chairperson of the commission of inquiry into state capture, pointed to the failures of the present system in that politicians did not call out corruption because they were beholden to their parties and not their voters.

In the first judgment, Zondo on Monday held that applicants’ real complaint on the signature requirement stems from the fact that MPs decided to count provinces as constituencies, but it did not ask the court to invalidate this decision.

“Their problem is the size of the quota which in turn is based on the size of the region or province.”

Had the constituencies been smaller, that percentage would have represented far fewer signatures and the complaint may have fallen away. 

He could find no justification for interfering with parliament’s decision to use a percentage instead of a fixed number to set a signature requirement, saying the applicants had not shown that it was irrational.

Nor did it beg an independent candidate to do anything he did not need to do in any event to secure a seat.

“It requires him or her to do that which he or she was bound to do sooner or later, namely, it requires him or her to go out and canvass and obtain the support of only 15% of the registered voters he or she was going to canvass anyway,” he wrote  

“This has no adverse consequences for the independent candidate or his or her right to stand for public office.”

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