The Electoral Amendment Act, the subject of constitutional scrutiny this week in the apex court, is how the government and parliament tried to address what their counsel, Steven Budlender SC, called “a very knotty problem”: how do you introduce independent candidates into a system designed mainly around proportional representation?
The constitution requires that our electoral system be, “in general”, one of proportional representation. The whole electoral system was designed on this basis. But in 2020 the Constitutional Court found that it was unconstitutional that only political parties are allowed to contest the elections. It is possible to allow independent candidates to contest and still maintain a proportional representation system “in general”, said the court. Parliament was given two years to fix the Electoral Act.
Possible, but not easy. On Tuesday, the ConCourt heard that, after expert advice, the government and parliament chose a “minimalist” approach to amending the legislation — pending a more comprehensive overhaul in due course. The system already in place was tampered with only to the extent necessary to accommodate independent candidates.
Given how tricky the whole thing was, perhaps the biggest surprise of the case was that there were only three aspects of the legislation that were litigated. By the time the case was argued, the focus narrowed to two: First, the requirement that new entrants — independent candidates and political parties not represented in parliament — must obtain a certain number of signatures from supporters before they can contest. The precise number is determined by a formula — “15% of the quota for that region in the preceding election” — but in real terms it works out to be between 11,000 and 14,000 for the national elections.
Second was the split between the 200 seats in parliament reserved for “regional” or provincial votes and the 200 seats awarded on the basis of national or “compensatory” votes. This was a prime example of trying to shoehorn independent candidates into a system designed for proportional representation. Since 1994 we’ve had a 200/200 split: 200 seats to ensure that our parliament is regionally representative and 200 to ensure that there is overall proportional representation.
The amendment has provided that independent candidates can only run for the 200 regional seats. This is because individual candidates cannot be counted on a proportional basis.
This makes sense from the point of view of maintaining the principle of proportional representation, a constitutional imperative after all. But the problem is that with the formula for how votes are calculated, if a voter chooses the same party on the regional and compensatory lists, a party needs far fewer votes — about half, said the Independent Candidates Association (ICA) — than an independent candidate to get a seat in parliament.
“On the face of it, that would strike the ordinary person: there’s something wrong there,” suggested justice Owen Rogers.
Here, the court will have to contend with coming to a decision in the face of many unknowns.
The ICA argued that it is unconstitutional. Independent candidates have to “go through the eye of a needle” to get a seat, while political parties “walk through open doors”, said ICA’s counsel Griffiths Madonsela SC. The ICA wants a 350/50 split, which it says would level the playing field and still accommodate the proportional representation requirement.
But Budlender argued that a 200/200 split was justified because it prevented “overhang” where, due to a party winning more seats in a region than they were entitled to overall, proportionally, they have to lose a seat.
If this happened the electoral commission could not declare election results and it would be a “crisis”, said Budlender. On a 200/200 split, the chances of this were zero. On a 350/50 split, this could happen once in every six elections, he said.
Then there is the new signature requirement — the purpose of which is to ensure that only serious candidates contest elections and that the ballot paper remains manageable.
Here, the court will have to contend with coming to a decision in the face of many unknowns. One was the lack of evidence from One South Africa Movement (OSA) as to how its members' rights had been infringed. Parliament's counsel Karrisha Pillay SC argued that to make a case in court, applicants can’t simply allege a breach of their right, they have to provide evidence. In this case, that they tried to collect the signatures and could not; or that they would not be able to because of cost or capacity constraints.
But there was little to this effect — something that OSA’s counsel, Andrea Gabriel SC, was closely questioned about by the bench. From the other side, there are also important unknowns. The Electoral Commission detailed the risks involved in having a large number of independent candidates on the ballot paper. Already the trend since 1994 was more parties registering yet fewer getting into parliament.
The more contestants, the higher the risk that there will need to be two columns on the ballot paper or more pages, said the electoral commission. More pages created a risk that pages could get separated when they were put into boxes. The more contestants, the higher the likelihood of voter confusion, spoilt ballots, longer queues and longer counting times; and this could impact on another right — the voters’ rights to free and fair elections, said the commission.
But it is unknown how many independent candidates and new parties will contest next year — so impossible to really get a sense of how big these risks are.
All this must be decided urgently. The commission appealed to the court for an order by mid-September, saying that otherwise its election timetable will be imperilled.
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