By Lehlohonolo Lehana.
@JRSA.
The Constitutional Court (ConCourt) has ruled that the splitting of seats in the National Assembly is in line with the Constitution,
ConCourt delivered its judgment ruling in favour of Parliament and Home Affairs Minister Aaron Motsoaledi.
President Cyril Ramaphosa signed the Electoral Amendment Act into law in April this year to allow independent candidates to stand in provincial and national elections in 2024.
This was in response to a ruling in June 2020 by the Constitutional Court which found the Electoral Act to be unconstitutional as it prevents independent candidates from standing for political office.
The new Act will allow independent candidates to stand in provincial and national elections in 2024 while also creating a new framework for the participation of independent candidates.
However, civil organization Build One South Africa (BOSA) and the Independent Candidates Association (ICA) approached the Constitutional Court earlier this year, arguing that the Act was unconstitutional as it unfairly restricted the participation of independent candidates in the elections and their representation in the National Assembly, compared to political party candidates.
The ICA wanted to be allowed to contest at least 350 seats.
The applicants also want the threshold for the number of signatures required to contest an election to be lowered from 10,000 to 1,000.
The matter was heard in the Constitutional Court, with Parliament and Minister of Home Affairs Aaron Motsoaledi filing opposing arguments.
Reading out the unanimous judgment, Justice Nonkosi Mhlantla, accompanied by Justice Jody Kollapen, said the ConCourt held the circumstances of the case were exceptional and raised important issues about the fairness of the 2024 elections and, therefore, direct access should be granted.
Mhlantla, however, pointed out that the apex court cannot interfere with a decision “simply because it disagrees with it”.
She said the rationality of the 200 regional seats and 200 national seats split hinged on whether it results in proportional representation or avoids the risk of overhang.
The dispute between the parties is, therefore, not whether it is irrational for Parliament to distinguish between regional and compensatory seats in the National Assembly, rather the dispute concerns the number of compensatory seats that ought to be reserved for political parties, with the applicant proposing a 350/50 split on the basis that 200/200 split debases the value of votes for regional seats.
“Even if the 350/50 split proposed by the applicants might arguably be fairer and achieve proportionality, sections 46(1) and 105(1) of the Constitution expressly leaves the choice of the electoral system in Parliament’s hand,” she said.
The judge said the court held that the 200/200 split passed the constitutional muster.
“There is virtually no risk of overhang,” Mhlantla continued.
She highlighted that the applicant failed to present a viable remedy should an overhang occur with the 350/50 split.
Mhlantla also indicated that 200/200 split passes the rationality test.
“It is, therefore, clear that a law that affects different categories of people differently doesn’t prove to be a violation of a right to equality as provided in section 9 of the Constitution. The person alleging the violation should provide evidence to support the alleged violation.
“The proposition that a vote for an independent candidate carries less weight when compared to a vote for a political party is without merit.
“Independent candidates and political parties compete for the same quota in regional elections and votes carry the same weight. There is differentiation in respect of regional seats,” she explained.
The application was, therefore, dismissed with no costs order.
Bosa, on the other hand, successfully challenged the new “signature requirement” – that a candidate must obtain a certain percentage of signatures of total voters in the candidate’s region to merely enter the election. Bosa said this was unfair.
Writing for the majority, judge Jody Kollapen ruled that the signature requirement “unjustifiably limits” candidates’ rights.
The court ordered the law should now require a candidate to get 1,000 signatures because using a percentage of a region would be unfair. For example, those in larger provinces would require more signatures than those in smaller ones.
“Section 31B 3(a) 1 and 2 of the Electoral Act 73 of 1998, as inserted by the Electoral Amendment Act No1 of 2023 is declared invalid and inconsistent with the Constitution to the extent that it unjustifiably limits the rights to freedom of association, freedom to make political choices, and to stand for public office.”
The court said the current law was not “reasonable and justifiable”. It has given parliament two years to fix the issue but, due to elections in 2024 ordered that 1,000 signatures will be the threshold.
Today’s judgment paves the way for the Independent Electoral Commission (IEC) to conclude discussions with Ramaphosa on the date of next year’s election.
Political parties have noted the Constitutional Court’s ruling:
Build One South Africa’s Mudzuli Rakhivhane welcomed the court ruling.
“Not only are we leaving here victorious, but we are also leaving here with legal certainty which is great in terms of the IEC being able to prepare for the 2024 election.
“When it comes to the ICA loss, the judgment was tough but I think overall it says to Parliament that anything done in terms of electoral reform will be watched closely and will be challenged if needs be.”
She added that the downside to the judgment was that it didn’t consider the unfairness of the requirement on independent candidates to get double the number of votes political parties need to get seats in the National Assembly.
“The Democratic Alliance (DA) welcomes the fact that the Constitutional Court this morning provided the IEC with the necessary clarity to enable it to proceed with and finalize its preparations for next year’s elections as early as May 2024. We also hope that this will enable the IEC to urgently announce the date for final registration weekend and that its conversations with the president will be concluded, so that the president can announce the date for the elections,” says the DA’s Werner Horn.
“This ruling provides legal clarity as to the provision of independent candidates. It also allows the IEC to finalize preparations for voter registration weekend and next year’s general elections,” says the ACDP’s Steve Swart.
“At this moment the electoral commission is working on the 22 May and therefore they now can continue in terms of the planning. The application from SA is merely a technical issue in terms of the number of signatures and the court granted them permission to approach the court directly. But independent of what the finding will be, it will not have any severe effect on the planning of the process,” says the FF Plus’ Dr Pieter Groenewald.
“Our democracy is in the process of maturing and today’s judgment settles the question of fair participation for independent candidates in the electoral process is another step in the settling of our democratic process. Our democratic process in the only way citizens can get the government that they want,” says GOOD party’s Brett Herron.
The IEC released a statement saying it would immediately put in place the necessary regulations to give effect to the revisions of the electoral system in accordance with the judgment.
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Video Courtesy of ENCA.