The Constitutional Court judgment that the Electoral Amendment Act which allows independent candidates to occupy seats in Parliament and provincial legislatures, was constitutional and lawful, has provided the necessary certainty for preparations for the 2024 elections.
“The Electoral Commission will immediately put in place the regulations necessary to give practical effect to revisions of the electoral system in the light of the judgment handed down by the apex court. The Electoral Commission has always been of the view that the distribution of seats of the National Assembly between the compensatory tier and the regional tier was rational and satisfied the constitutional requirement for general proportionality. The important confirmation of the Constitutional Court is that the contestants in the regional tier of the elections are subject to the same number of votes per seat,” said the Electoral Commission of South Africa (IEC).
Monday’s outcome arose from an application brought by the Independent Candidates Association (ICA) which wanted the number of seats to be contested by independent candidates to be increased from 200 to 350.
The Electoral Amendment Act provides for 200 seats to be filled by independent candidates and candidates from regional lists of political parties and another 200 seats from national lists, called compensatory seats.
The ICA was not happy with the 200/200 split, saying the 350 regional seats should be reserved for regional lists while 50 for national level.
It said independent candidates would be required to earn more votes in order to secure a single seat compared to political parties.
In a unanimous judgment, Justice Nonkosi Mhlantla said Parliament’s 200/200 split passed constitutional muster.
“The proposition that a vote for an independent candidate carries less weight when compared to a vote for a political party is without merit,” she said.
“The applicant has not been able to prove that a split is arbitrary and a vote for an independent candidate carries less weight,” said the justice.
She also said ICA had not established that the impugned legislation was irrational nor did it infringe the provisions in the Bill of Rights.
“It has not made out a case to justify declaration of constitutional invalidity.
It follows that the application must be dismissed,” Justice Mhlantla said.
Reacting to the judgment, Parliament spokesperson Moloto Mothapo said: “Today’s ruling underscores the rigorous process that Parliament undertook to apply its mind and consider all pertinent issues relating to proportional representation as guided by the Constitution.”
DA MP Werner Horn said the apex court’s ruling paved the way for crucial announcements by the IEC regarding the upcoming registration weekend and election date.
GOOD Party secretary-general Brett Herron said: “Now that the act has been declared rational and constitutional, the IEC can prepare for the 2024 elections and the president can announce the date of the election.”
In another judgment, the apex court found the signature requirement for independent candidates and parties wishing to contest elections invalid and inconsistent with the supreme law.
One Movement South Africa challenged the requirement that independent candidates and political parties not represented in Parliament or provincial legislatures should secure signatures totalling 15% of the quota of that province in the preceding election they intended to contest.
The court declared the 15% signature requirement as invalid and inconsistent with the Constitution to the extent that it unjustifiably limited the rights to freedom of association, freedom to make political choices and to stand for public office.
“The declaration of invalidity referred to in paragraph 3 is suspended for 24 months from the date of this order to afford Parliament an opportunity to remedy the constitutional defects giving rise to the constitutional invalidity.”
However, in suspending the 15% signature requirement, the court came up with a read-in clause that provided for independent candidates to secure 1 000 signatures.
The IEC said the judgment on the One Movement South Africa application was indicative of the constitutional complexity related to the design of an electoral system.
Mothapo said an amendment would be necessary in due course to ensure that the statute book was aligned with the judgment.