Win some, lose some - IEC, civil society and political parties welcome key ConCourt rulings on elections

While the two judgments on challenges to the Electoral Amendment Act handed down by the Constitutional Court yielded mixed results for independent candidates, political parties and civil society organisations have welcomed the rulings.

On Monday, the apex court passed judgments on cases brought forward by One South Africa Movement (OSA) and the Independent Candidates Association of South Africa (Icasa). One spelt victory and the other a disappointing dismissal.

OSA’s application challenged the 15% signature requirement for independent candidates and new political parties to contest the general elections next year. The quota to contest elections was previously 1,000 signatures. The new quota, adopted after President Cyril Ramaphosa signed the act into law on 17 April, meant that independent candidates and new political parties would have to get between 11,000 and 14,ooo to be eligible to contest depending on the region they planned to compete in. 

In a majority judgment penned by Justice Jody Kollapen, the court upheld the challenge, ruling that the requirement was unconstitutional as it unjustifiably limited the rights to freedom of association, freedom to make political choices and to stand for public office.

Constitutional Court Judge Jody Kollapen. (Photo: Facebook)

Read more in Daily Maverick: ConCourt’s landmark judgment means independents only need 1,000 signatures to contest

Kollapen struck the 15% signature requirement from the Electoral Amendment Act and ordered an interim reading in that independent candidates are only required.

Justice Kollapen added, “The declaration of invalidity referred to is suspended for 24 months from the date of this order to afford Parliament an opportunity to remedy the constitutional defects giving rise to the constitutional invalidity.”

Ruling on threshold requirement welcomed

Reacting to the judgment, Parliament said an amendment would be necessary to ensure the statute book is aligned with the judgment. It remained unwaveringly committed to protecting every citizen’s right to participate in elections, it said.

Rivonia Circle, which acted as amicus curiae (or friend of the court) throughout, welcomed the ConCourt’s ruling on the unconstitutional signature requirements.

Rivonia Circle’s Lukhona Mnguni said, “Our focus for this case has been on the signatures and the arbitrary nature of the 15% requirement. We are happy with the striking out of the 15% and the reading in of the 1,000 signatures in the interim. The allowance for Parliament to have 24 months to look at the bill and change what it needs to change to make it more constitutional is important. But what we are happy about, particularly for this election, is the arbitrary 15%.”

The ruling was also welcomed by the Independent Electoral Commission of South Africa, which had been eagerly awaiting the challenges to be put to bed so the commission could get the ball rolling on preparations for the 2024 elections.

Parliament said an amendment would be necessary in due course to ensure that the statute book is aligned with the judgment. It remained unwaveringly committed to protecting every citizen’s right to participate in elections. (Photo: Gallo Images / Sharon Seretlo)

The commission said it would immediately put in place the regulations necessary to give practical effect to revisions of the electoral system in the light of the judgment handed down by the apex court.

The IEC added that it would finalise the 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 commission said. 

ActionSA, which will be participating in the National Provincial Election for the first time, noted that the signature threshold was reduced to 1,000 for independent candidates. The ConCourt did not offer the same remedy to new political parties. Fortunately for the party, it claims that it has met the requirements needed.

Commenting on the state of electoral reform in South Africa, ActionSA said that the ability of citizens to directly elect their representatives and thus ensure accountability was sorely missing from the current electoral regime.

“We will therefore work, once elected to Parliament, to introduce legislation to ensure better accountability,” the party said.

Icasa saddened but accepts ConCourt dismissal

In contrast to OSA’s victory, Icasa’s challenge was unanimously dismissed in a judgment penned and read by Justice Nonkosi Mhlantla. The ruling found that Icasa failed to prove the 200/200 split of the 400 seats in the National Assembly irrational.

The allocation of National Assembly seats earmarks 200 regional seats, which independent candidates can contest, whereas political parties can contest from both the regional and the remaining 200 compensatory seats.

Icasa founder Michael Louis, who has been vocal about how the allocation of seats unfairly favoured political parties, said while the judgment saddened him, the organisation welcomed the court's decision.  

Icasa, which works to promote independent candidates and to make sure they have an equal footing in the political landscape, argued that independent candidates would have to get twice as many votes as political party candidates to gain a seat in the National Assembly because of the exclusion from contesting for the 200 compensatory seats. Icasa claimed that the clause did not treat all election hopefuls the same. Icasa asked the court to substitute the 200/200 split with a 350/50 split.

Louis added that Icasa would not give up its commitment to improving democracy in South Africa, and the 2024 election results will prove the merits or pitfalls of its challenge.

“I am sad, but it’s a journey. We continue to walk this journey to improve our democracy,” Louis said, “We still believe you are going to find a situation where an independent candidate might get 67,000 votes and not qualify for a threshold of, say, 90,000. A political party might get 45,000 votes in the compensatory seats, and they will qualify for parliamentary seats, while an independent candidate will not. It will only be proven that the courts were right once the 2024 elections come through.”

Speaking to Daily Maverick, political activist Zackie Achmat, who will also be contesting the 2024 elections as an independent candidate, said he is delighted that the signature requirement has been lowered.

“I welcome the certainty that the judgment brings,” says Zackie Achmat. “This means I’ve already hit the signature requirement 11 times over and now need to complete the IEC submission to ensure my place on the ballot.”

While Achmat questioned if the new 1 000 signature requirement was too low, he acknowleged the new threshold removed a significant barrier to participating in elections and thus increased the number of independent candidates who can contest.

"I think it's critical that as many independent candidates as possible get into the election because we need to break the hold that political parties have over their members. That is not allowing their members to act on the basis of the constitution, conscience, and the needs of the people.  So for that reason, it's important to get many people, and a lower threshold helps to achieve that"

Achmat added that while the battle to get into the elections has been won, independent candidates must still raise an exorbitant amount of money to effectively compete against political parties.

"What the difficulty now is, is that a person who's only starting their campaign, who is working class, and perhaps let's say, a very popular farm worker in the Winelands, will be competing against 40 political parties, with no money.  The difficulty is that the farm worker won't necessarily have any other connections to a broader movement."

While Achmat said he is confident that the issue surrounding the funding of political parties is something he can overcome, he concluded that it will still be a challenge.

"It's different when you're raising money for Ndifuna Ukwazi or Reclaim the City. It's different raising money for the Social Justice Coalition, Equal Education or Treatment Action Campaign, all of which I've been part of. Because that money is meant for foundations, those funders won't give money to political parties or independent political candidates. And yet, if I wish to compete against the political parties, I have to raise another 12 million rand. Can you imagine that?" DM

This article has been updated to include the comment of Zackie Achmat