Ballots and barriers: South Africa's electoral landscape post-judgement

11 December 2023

On 4 December, the Constitutional Court delivered a judgement that has far-reaching implications for the landscape of South African elections, particularly in relation to independent candidates. The case revolved around the Electoral Amendment Act, a piece of legislation that introduced changes to the electoral system, that had been ordered by the Constitutional Court in its New Nation Movement judgement (2020) to permit independent candidates to stand in national and provincial elections. Represented by Michael Louis, the One Movement South Africa (OSA) took a stance against certain provisions of the Act, arguing that they were unfair and unconstitutional. 

OSA had two central complaints:

Firstly, the Act required that, in order to stand for election, independent candidates would have to obtain 15% of the signatures needed to win a seat. In OSA’s view, this requirement presented an unfair burden for independent candidates and discriminated unfairly against them vis-a-vis political parties registering for the first time.

Secondly, votes cast for independent candidates in the 200 regional seats to which they were limited, will have substantially less value than votes cast for political parties because they will not be able to share in the 200 seats that are distributed in terms of proportional representation.   

The majority of judges were in favour of OSA in terms of its first complaint and ordered that independent candidates would have to produce only 1 000 signatures to stand in elections. 

The heart of OSA’s second complaint lies in the contentious 200/200 split between regional and compensatory seats to ensure overall proportional representation. It argued that, in terms of this system, independent candidates standing for election in the 200 regional seats (where they must stand) would require on average 91% more votes than political party candidates who are elected for the 200 compensatory seats. This would clearly violate the constitutional requirement that all votes should be of equal value. 

OSA suggested that the problem could be resolved without disrupting the 2024 elections by increasing the number of seats that will be elected on a regional basis to 350 and by reducing the compensatory proportional seats to 50. This would still mean that independent candidates would have a 10% disadvantage in the elections - but it presented a workable solution for the 2024 election. 

The Constitutional Court, however, in a unanimous decision, upheld the 200/200 split, asserting that it passed constitutional muster and was grounded in proportional representation. Justice Nonkosi Mhlantla, delivering the unanimous judgement, asserted that the applicant had failed to prove the irrationality of the 200/200 split and did not establish a case justifying a declaration of constitutional invalidity. 

This judgement raises crucial concerns about the equality of votes cast for independent candidates, a concern that resonates strongly with OSA’s stance and aligns with the broader perspective of those advocating for fair and just electoral processes. Unfortunately, the contention that a vote for an independent candidate carries less weight than a vote for a political party, a point emphasised by OSA, has not found resonance with the court's decision.  

In addressing the court's decision, Michael Louis, Chairperson of OSA, expressed disappointment, stating, "This judgement falls short of ensuring a level playing field for independent candidates. The 200/200 split, coupled with the retained compensatory seats, perpetuates a system where independent candidates are relegated to a marginal role in the broader political landscape, contrary to the spirit of our constitutional democracy."

Issued by FW de Klerk Foundation, 11 December 2023