South Africa has operated under a proportional representation system for all of its democratic history. But the Constitution enshrines the right of every citizen to stand for elected office
The constitutional court on Monday ruled an onerous provision that the new Electoral Act imposes on independent candidates unconstitutional, and lowered the number of signatures they need to collect to contest elections to 1 000.
The court’s majority ruling in this regard, penned by justice Jody Kollapen, found that this provision of the act, which became law in April, restricted the constitutional rights to freedom of association, to make political choices and to stand for political office.
These rights hold significant value, given the country’s history of exclusion, he stressed.
“In analysing the meaning and effect of the signature requirement and whether it constitutes a limitation of the content and scope of these rights, the second judgment finds that the signature requirement goes beyond a mere regulation and has a limiting purpose to prevent frivilous contestation.”
A requirement of 15%, calculated as a percentage of the regional quota of votes an independent would need to secure a seat in the elections, would translate to between 10 000 and close to 14 000 votes for an independent candidate to be allowed to stand.
It would constitute a barrier to the exercise of the constitutional rights in question, Kollapen continued.
“It would place a burden on independent candidates seeking to contest elections, would require immense time, resources and energy to invest in order to meet the 15% requirement.
“As such, the second judgment concludes that the signature requirement constitutes a limitation of the applicant’s right to freedom of association, freedom to make political choices and to stand for, and hold, public office, if elected.”
He said the limitation was not justifiable in terms of section 36 of the Constitution.
“The purpose of the limitation is of low importance where a contestation requirement has never existed in any previous elections, despite increasing trends that demonstrated greater contestation, coupled with poorer successful outcomes.”
He said the nature and the extent of the limitation was arbitrary as parliament, in its deliberations on the act, consistently relied on the wrong quota of 44 000 of votes when lawmakers arrived at the 15% requirement.
The correct quota, he added, averaged 83 000.
It was a fundamental flaw that materially affected the outcome of the legislature’s deliberations and rendered these arbitrary, he said.
Furthermore, the signature requirement was excessive when compared with those in foreign jurisdictions.
“The second judgment orders a declaration of constitutional invalidity,” Kollapen said, before making a rare substitution order
“It finds that there would not be sufficient time to refer the matter for parliament to address the constitutional invalidity before the next election.
“In these circumstances, practical considerations warrant a remedy in order to address the consequences of the order of invalidity. The second judgment accordingly orders as an interim remedy a striking out in the impugned provision of a 15% quota and in its place a reading in of a 1 000 signatures.”
The order was suspended for 24 months to allow parliament time to cure the defect in the act.
Kollapen went on to warn that a signature requirement could prove a barrier to participation by independent candidates.
“We must be cautious and guard against such a requirement becoming a barrier to contestation. In effect, the signature requirement if left undisturbed may render somewhat hollow the enormous promise that New Nation Movement heralded in unlocking and giving to section 19 of the Constitution fully and properly.”
In that case, in 2020, the apex court declared the electoral act unconstitutional and invalid to the extent that it did not allow independent candidates to run for elected office.
This necessitated an overhaul of the act, with the contested final version sparking the challenges ruled on by the court on Monday.
The attack on the signature requirement was mounted by Build One SA (Bosa), which is the new political party headed by former Democratic Alliance leader Mmusi Maimane, who called Monday’s ruling significant.
It was heard together with a challenge by the Independent Candidates Association, which argued that the manner in which seats were split in the current electoral model was unfair to independents in that they were confined to the regional ballot.
Both judgments said the argument could not be sustained.
The political opposition has charged that the act was unfair in that it allowed independents to contest only half of the 400 seats available in the legislature.
South Africa has operated under a proportional representation system for all of its democratic history. But the Constitution enshrines the right of every citizen to stand for elected office and there have been various calls since the 1994 elections for the country to move to some form of a constituency model.