The apex court on Tuesday began hearings into an urgent application by a group of independent candidates and former DA leader Mmusi Maimane to overturn SA’s electoral laws, a court challenge the outcome of which could radically alter the landscape of the 2024 general elections.
The Independent Candidate Association (ICA) and Build One SA (Bosa), Maimane’s new party, filed the application in the Constitutional Court on the grounds that the Electoral Amendment Act, which was passed in June and allowed independent candidates to run for the National Assembly for the first time, does not go far enough to ensure a level playing field.
Unless election laws are changed, “the voice of the people [voting for independent candidates] is forever lost”, the ICA argued.
In a case it says “strikes at the heart of voters’ rights”, the ICA and Bosa are asking the apex court to declare the act unconstitutional because it imposes an unequal playing field for candidates and political parties in elections.
Parliament and home affairs minister Aaron Motsoaledi are opposing.
The applications argued that the recently enacted voting laws maintain a system that splits the vote for the 400 seats in the National Assembly into two equal parts: one drawn from votes casts in regional lists, and 200 allocated from a national, so-called compensatory list to meet proportional representation calculations.
Independent candidates say that split is unfair because the independent candidates are excluded from the compensatory list. The ICA proposes a different system that would allocate 350 seats based on regional lists and 50 seats based on national, or compensatory, lists. It says this would give independent candidates a fairer chance of winning seats.
“On the 350:50 split, independents get much closer to the parties, in terms of number of seats for the same percentage of votes,” the ICA said in court papers.
The court is working against the clock to hand down judgment because the Electoral Commission (IEC) has to begin its preparations for the 2024 elections, which are expected to be highly contested.
The application — which includes a request to reduce the number of signatures from 10,000 to 1,000 for independent candidates to get on the ballot — is opposed by the IEC, parliament and department of the home affairs.
In its court filings, the IEC warned that lowering the threshold to get on the ballot is likely to lead to frivolous participation and a two-page ballot paper, which the electoral body said would threaten the credibility of the elections.
A two-page ballot paper is likely to lead to problems such as ballot separation when voters add theirs to the ballot box, or when ballots are removed for counting purposes, the IEC is expected to argue.
The government and parliament are defending the act, saying it was passed after extensive consultation and respects voters’ rights. They argue that changing the system now would create confusion and uncertainty and that the applicants have not shown any violation of rights or irrationality in the act.
The case continues on Wednesday.
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