The constitutional court has granted parliament an extension of the deadline set in its New Nation Movement NPC ruling in 2020 to amend the Electoral Act to allow independent candidates to be elected to the national and provincial legislatures.
In an order handed down on Friday, the court gave parliament a further six months to effect the necessary amendments, with the new deadline being 10 December.
The reprieve came on the exact day the original two-year timeframe accorded for the amendments in the ruling penned by Justice Mbuyiseli Madlanga expired.
The fact that an amendment Bill was only brought to parliament in January was one of the reasons advanced by the legislature for seeking an extension.
The constitutional court was careful not to prescribe in any way what electoral model should be adopted, other than to allow for independent representation. But there are serious concerns that the draft Bill may not pass constitutional muster.
Among those is that the proposed manner in which vote calculation will happen is fraught and unfair because once an independent candidate reaches a required threshold the rest of the votes cast for that person, the rest will effectively go to waste, said Lawson Naidoo, of the Council for the Advancement for the South African Constitution.
The Bill also does not make proper provision for what should happen in the event that an elected independent candidate dies in office.
These issues have been highlighted by observers and the Electoral Commission of South Africa (IEC), which has also cautioned that the legislation needs to be enacted soon enough to allow it sufficient time to prepare for the 2024 national elections.
Naidoo said he was not convinced that the current electoral model lent itself to simply being “tweaked” to accommodate independent candidates, which is what MPs have attempted to do with the draft amendment, and that adopting some form of a constituency model was indicated.
Many have proposed this, including before the Zondo commission of inquiry into state capture, but the ruling ANC and other political parties are loath to move in that direction.
The Van Zyl Slabbert Commission in its 2003 report recommended that South Africa adopt a mixed system in which MPs would be elected from multi-member constituencies but this was ignored. The country has operated under a proportional representation (PR) system for the entirety of its democratic history.
“It seems to be a lost opportunity to have a proper review and to produce a model appropriate for South Africa today,” Naidoo said.
The court found in New Nation Movement NPC and Others v President of the Republic and Others that the bar on independent candidates standing for parliament and provincial legislatures was unconstitutional.
Madlanga dismissed the speaker’s argument that electoral reform was the preserve of parliament and the subject of an ongoing process. There was no process, he wrote, “and we do not know if there will be one”, before ordering that the law be amended.
He said that 24 months would be a reasonable period for parliament to amend the law, noting that the speaker had asked that if the law be found unconstitutional the ruling be suspended for three years as amendment was bound to be a complex process.
Mmusi Maimane, the leader of OneSA, has suggested that parliament has been delaying the amendment deliberately because of the threat independent candidates would pose to the ruling party.