Five civil society organisations plus an individual are preparing an application to the Constitutional Court for a declaration on the unconstitutionality of the Electoral Amendment Act, which has been signed into law by President Cyril Ramaphosa.
Ramaphosa ignored the appeal by civil society for him to send the bill directly to the court himself, deciding to go ahead with putting his signature to the act — outside the February 28 deadline set by the court for it to be on the statute books.
The act will allow independent candidates to stand for national and provincial elections for the first time in SA’s democratic history. While strongly in favour of this, civil society has opposed the bill since its tabling in parliament on the grounds that it violates the constitutional principle of general proportionality and the principle that all votes should have equal value; that the barriers to entry for independent candidates are too high; and that the method of vote recalculation for the filling of seats left vacant by independent candidates is unfair as it favours bigger parties.
Civil society is in favour of a constituency-based system as proposed in the majority report of the ministerial advisory committee chaired by Valli Moosa.
The five organisations preparing to contest the act are the New Nation Movement, the Independent Candidates Association (ICA), One SA Movement, Inclusive Society and Organisation Undoing Tax Abuse together with Princess Chantal Revell, the successful applicant in the original Constitutional Court case to have the Electoral Act declared unconstitutional on the grounds that it did not allow independent candidates to contest national and provincial elections.
Build One SA (Bosa) spokesperson Sbu Zondi said in a statement Bosa supported the constitutional challenge by civil society to a “fundamentally flawed” act.
ICA chair Michael Louis said in a statement on Monday “that the ICA will be challenging the constitutionality of this act and has already mobilised a number of other civil society organisations who will join as applicants. Legal papers are far progressed and because of the timing of the next elections, we are confident the Constitutional Court will allow direct access for the parties to contest the new law.
“It is unfortunate that the president has for the umpteenth time not taken civil society into his confidence and decided to sign a new law that will have a detrimental effect on the 2024 election. Since we have to first apply for direct access to the Constitutional Court, we do not expect judgment before October 2023.
“This will give the IEC [Electoral Commission of SA] approximately six months to prepare for the next elections — when they in fact need at least 18 months.”
Louis said the elections had to take place in March 2024 at the earliest and in August at the latest and he believed that a postponement would be necessary to give the IEC sufficient time to prepare for them.
The litigants will propose a reading-in of proposed clauses into the bill so that it will not have to go back to parliament ahead of the elections.
Louis said in an interview that it was likely that the applicants in the original application to the Constitutional Court would bring the application to have the new act declared unconstitutional on the grounds that it did not provide a necessary remedy to them because of the high barriers to entry. They would have the required locus standi. The original applicants were Revell, a member of the First Nation Movement who wanted to stand as an independent candidate, and the New Nation Movement.
Direct access
Because their case already has been before the Constitutional Court, they are more likely to be granted direct access whereas other litigants might have to go via the high court, which could take several months.
“We have to look at which applicant will have the best chances of success for direct access,” Louis said.
Labour federation Cosatu said it believed the act met the requirements of the Constitutional Court judgment of June 2020.
In terms of the amendment act, home affairs minister Aaron Motsoaledi must establish an expert electoral reform consultative panel to look into a comprehensive system of electoral reform — including a possible constituency-based system.
The panel will be established within four months of the enactment of the bill. It has to submit a report a year after the 2024 elections so that any recommended changes can be introduced before the next elections in 2029.
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