IEC welcomes Constitutional Court ruling

Tuesday, December 5, 2023

The Electoral Commission has welcomed Monday’s judgement by the Constitutional Court in relation to challenges to the Electoral Amendment Act.

"The judgement provides the necessary certainty in relation to preparations for the 2024 National and Provincial Elections. The Electoral Commission will immediately put in place the regulations necessary to give practical effect to revisions of the electoral system in light of the judgement handed down [on Monday] by the apex court," said the IEC.

The Constitutional Court made rulings on cases brought forward by the Independent Candidates Association of South Africa (ICA) and the One South Africa Movement (OSA). 

In the application brought by the ICA, the association wanted the number of seats to be contested by independent candidates to be increased from 200 to 350. 

The court ruled that a provision in the Electoral Amendment Act regarding seat allocation in the National Assembly passed constitutional muster, even though it was argued that independent candidates would have to get many more votes per seat than political party candidates.

The court found that the ICA failed to prove that the 200/200 split of the 400 seats in the National Assembly was irrational.

There are 200 regional seats in the National Assembly, which independent candidates can contest, while political parties can contest both the regional and remaining 200 compensatory seats.

The ICA had argued that an independent candidate must get many more votes than political party candidates in order to gain a seat in the National Assembly because independents were only allowed to compete for 200 regional seats and not the 200 compensatory seats allocated only to political parties in the national elections.

"The Electoral Commission has always been of the view that the distribution of seats of the National Assembly between the compensatory tier and the regional tier was rational and satisfied the constitutional requirement for general proportionality.

"The important confirmation of the Constitutional Court is that the contestants in the regional tier of the elections are subject to the same number of votes per seat. Furthermore, that no votes of independents are to be transferred to political parties," the IEC said.

One South Africa Movement ruling

The OSA’s application challenged the 15% signature requirement for independent candidates and new political parties to contest the general elections in 2024. 

In its ruling, the court set aside the requirement for independent candidates to get the signatures of 15% of the people living in the region they are contesting in order to be eligible to stand for the 2024 National and Provincial Elections.

The Constitutional Court ruled that only 1 000 signatures are required for independent candidates, with Justice Jody Kollapen cautioning that the gains made in the Electoral Amendment Act, which for the first time allows for independent candidates to contest elections, would be "hollow" if Parliament put up barriers.  

“The Electoral Commission will now finalise adjustments to the signature requirements portal, so that prospective independent candidates and unrepresented parties can start collecting and capturing. The signature portal, as well as the final regulations, will be launched soon.

“The Electoral Commission will immediately put in place the regulations necessary to give practical effect to revisions of the electoral system in light of the judgement handed down by the apex court.

"The Electoral Commission notes the three-way judgement on the One South Africa Movement twin challenges. This is indicative of the constitutional complexity related to the design of an electoral system.

"The elements of the findings, in relation to the recalculation of formulae, is a matter on which the soon-to-be established Electoral Reform Consultation Panel will have to be seized with going forward," the IEC said.

President Cyril Ramaphosa signed the Electoral Amendment Act into law in April this year to allow independent candidates to stand in provincial and national elections in 2024.

The Bill went through extensive public consultations, prompting Parliament to request two deadline extensions from the Constitutional Court. Thus, the final deadline for Parliament to pass the bill was 28 February 2023. -