There are three outstanding matters that parliament’s home affairs committee has to decide upon before it can finalise its deliberations on the Electoral Amendment Bill.
These are the number of signatures that independent candidates will require to be able to contest an election; whether independent candidates can stand in more than one region; and whether there should be a cooling-off period for members of political parties who want to stand as independent candidates.
These issues have to be resolved so that parliament’s legal advisers can present a revised bill that includes all the amendments decided on by the committee.
The committee decided at its meeting on Friday that its members would consult with their respective political parties on these issues.
Previously the decision of the committee was that independent candidates would require a number of signatures equivalent to 50% of the quota for the previous election (which was 40,000 votes) to qualify as a candidate. However, the legal advisers for home affairs minister Aaron Motsoaledi and his department warned that a 20,000 signature requirement would be unconstitutional as it would restrict the ability of independent candidates to contest elections.
Advocates Stephen Budlender and Mitchell de Beer noted in their legal opinion that while the requirement for signatures was a good thing as it would indicate the likelihood of an independent candidate winning a seat, they believed that a maximum of 20% of the quota would be more suitable. They also believed this decision should be left to the Electoral Commission of SA (IEC) rather than being incorporated into the bill itself.
“Our view is that such a high percentage (50%) risks being found unconstitutional, if the requirement were challenged in court,” they said.
IFP MP Liezl van der Merwe was adamant that a 20,000 signature requirement was not fair and would impede the participation of independent candidates in the election.
The Constitutional Court found that the Electoral Act was unconstitutional as it did not provide for independent candidates to stand for national and provincial elections and gave parliament 24 months to rectify this. Parliament did not meet the June 10 deadline and obtained a six-month extension from the court to finalise its work.
The committee also decided previously that independent candidates could stand in more than one region — a region is the same as a province — and that they would have to indicate upfront which region they would represent in the event that they won seats in more than one province. This is now being reconsidered partly because the votes for an independent candidate in a region which was not selected up front would be wasted.
Justifiable limitation
Budlender and De Beer said both options of independent candidates being restricted to one region or being allowed to stand in more than one region would be constitutional. It could be argued that the restriction to one region was a justifiable limitation of the right of independent candidates to contest elections, they said. This was a policy choice that needed to be made by parliament.
“Permitting contestation of multiple regions by independent candidates would result in a more complex electoral system, that could lead to delays in the finalisation of the election, and as we have said will result in more vote wastage. Those appear to us to be legitimate and reasonable purposes justifying any limitation of the right,” they said in their legal opinion.
The constitutionality of a cooling-off period is also in question. The cooling off period would prohibit members of political parties from standing as independent candidates if they were members three months before the election. The IEC has indicated that it would not be able to monitor such a prohibition and concerns have also been raised that it might constitute an unconstitutional restriction on the right of independent candidates to contest elections.
DA member of the committee Adrian Roos proposed that the bill be an interim measure to satisfy the requirements of the Constitutional Court judgment for the 2024 elections. “Post 2024 parliament must introduce legislation for comprehensive electoral reform which provides for demarcated multi-member constituencies which can be contested by both political parties and independent candidates,” he said.
This was the majority view of the ministerial advisory committee appointed by Motsoaledi and chaired by Valli Moosa.
Eleven civil society organisations, which met on Friday to chart a way forward on the bill, are adamant that only a constituency-based system will pass constitutional muster. They would consider a two-stage approach (because of time constraints) to achieve this to cater for the 2024 elections and for a constituency system to be introduced for the 2029 elections. They want to raise their concerns with Motsoaledi and the committee.
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