By Lehlohonolo Lehana.
The Independent Candidates Association South Africa (ICA) is one of the organisations that is seeking to challenge the constitutionality of the Electoral Amendment Act.
The Electoral Amendment Act has been criticised for not giving effect to what was intended by the Constitutional Court in that first 2020 judgment and for favouring political parties over independent candidates in the way it was set up.
It argues that “Item 1 of Schedule 1A to the (amended) Electoral Act 73 of 1998 is “unconstitutional and invalid to the extent that it provides for the elections by way of 200 regional seats for National Assembly (instead of 350) and 200 compensatory seats (instead of 50)”.
As remedy, the ICA seeks “a reading-in so that there will be 350 regional seats and 50 compensatory seats”.
Constitutional Court Justice Leona Theron asked advocate Griffiths Madonsela, the legal representative for the Independent Candidates Association of South Africa (ICA), whether the ICA was not arguing for the infringement on the separation of powers by applying to reverse legislation passed by parliament and enacted by President Cyril Ramaphosa in April.
In June 2020, the Constitutional Court ordered Parliament to, within two years of the ruling, amend the Electoral Act to allow independent candidates to contest the national elections.
Previously, the law only allowed candidates attached to political parties to contest.
Parliament passed the Electoral Amendment Bill that allocates only 200 seats for independents in February, and Ramaphosa signed it into law in April.
Theron asserted there was not enough evidence for Madonsela’s clients to claim the disadvantage they claimed independents suffered in the current act by being allocated 200 seats was “irrational”.
“The court will basically be imposing an electoral system on the country,” she asserted, arguing that that would be the case should the act be ruled unconstitutional.
But Madonsela said Parliament’s decision to grant independents only 200 was done arbitrarily.
He alleged there was no evidence on the record where there was serious engagement with the 350/50 split proposed by the ICA, rather than the 200/200 ratio in the act.
Madonsela said: The problem is that, when they [Parliament] do the compensatory seats allocation [proportional representation seats], the independents are not included. It means independents have no chance [to get the 200 proportional seats reserved for parties].
Home Affairs Minister Aaron Motsoaledi, however, dismissed the ICA’s application in his answering affidavit, saying the June 2020 ruling called for the inclusion of independents in national elections, which he stressed the current act encompassed.
Motsoaledi added in his affidavit independents being granted more seats would distort the proportional share of political parties, saying South Africa used a proportional representation system that supported multiple parties in its legislatures and councils.
“It is only political parties [that] can send representatives in proportion to the support they achieve in an election, [which] can guarantee proportionality.
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