The Constitutional Court runs the risk of “imposing” an entirely new “voting regime” in 2024, if it accepts the challenges brought by independent candidates. The candidates claim their rights have been infringed by unnecessarily “onerous” requirements in new SA election laws.
These were among the points made in the apex court over Tuesday and Wednesday in response to two groups of independent candidates challenging the new Election Law Amendment Act. The new election law changed quotas, seat availability and threshold requirements for political parties as well as independent candidates, who, for the first time, can compete in the national election in 2024.
The groups say the amendment act creates unequal playing fields between independent candidates and political parties.
For most of Tuesday, the court heard a challenge brought by the Independent Candidate Association (ICA) based on how the 400 total seats in the National Assembly are allocated. The current model splits it between 200 drawn from regional ballots and the remaining 200 from a national, so-called compensatory list to meet proportional representation calculations. Because independent candidates can only compete in the regional ballot, whereas political parties can compete on both, the ICA said this is unfair. Parliament and home affairs minister Aaron Motsoaledi is opposing the challenge.
On Wednesday, the court dealt with a second challenge brought by Musi Maimane’s grassroots movement, One Movement SA (OSA).
OSA’s main contention deals with how many signatures are required before one is able to contest an election.
According to advocate Steven Budlender for the minister, to register, a party needed a constitution, a logo and a minimum of a thousand signatures. Before the Election Law Amendment Act came into operation in June 2023, political parties only needed to be registered with the Electoral Commission of SA (IEC) before they could contest the results of an election.
Under the amendment act, not only must a candidate and party be registered (as per the old regime) but, before they can contest, they need to garner 15% of the total number of votes required for the seat they are contesting. In other words, if a seat required a total number of 100,000 to win, to contest the results of the election for that seat, the person contesting must garner about 14,000 signatures.
OSA says this percentage, translated into numbers, is too high and should be set at 1,000 signatures, which was the number required to merely register.
Advocate Andrea Gabriel, for OSA, said under the new regime, this was a move from 1,000 signatures to 14,000 (the figure often used as the numerical value of 15% of total signatures required for a Gauteng seat). This was a “barrier”, she said. Importantly, “what happens in 2024 elections determines” who creates electoral reform in future.
Justice Leona Theron said there was no “existing standard” because independent candidates had never competed before. Now OSA was asking the court to effectively “impose a voting regime”, violating the separation of powers. Gabriel said the court was only being asked to grant “effective relief” — in other words, “read-in” the requirement to contest is a 1,000 signatures, not 15% of total votes needed.
Rivonia Circle, as amicus (friend of the court), said “there’s nothing” shown by the government as to why it opted for 15%. Theron also noted that if a candidate cannot garner 14,000 votes, what hope do they have to win the total seats? Advocate Max Du Plessis for Rivonia Circle said that parties take a while to find their feet and it is a barrier.
Advocate Karrisha Pillay for parliament said OSA has not shown any evidence of infringement on any candidate, even though they were in court and directly affected. When OSA’s Gabriel was pressed by chief justice Raymond Zondo on this question, Gabriel conceded there was no evidence speaking directly to an infringement but such an infringement was “self-evident” given the disparity between 1,000 signatures and 14,000.
Justice Jody Kollapen said it did not “appear” parliament had applied its mind in answering OSA’s question about where the 15% came from. Justice Owen Rogers also noted government’s concern that the changes requested by the applicants would lead to “unmanageable ballot papers” was perhaps a “bogeyman”.
Budlender argued since no candidate had shown they had struggled but failed to overcome the “barrier” of the new laws, the court could not grant OSA’s relief. Further, he noted that an independent advisory panel was already being set up to consider 2024’s election, so proper data could be gathered. From there, a “proper” challenge could be made out demonstrating actual infringements, if any, on independent candidates. But for the court to decide such an enormous matter, and to decide it urgently, when “not one affidavit” showed an infringement would be going too far. “There is no going back” if the apex court rules 15% is not appropriate.
Gabriel noted that it would be “too late” for current candidates to compete if the matter is not decided in OSA’s favour.
Judgment was reserved and is expected to be delivered in September, to allow the IEC time to administer the election.
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