South Africa


A political mess that is the new electoral law

A political mess that is the new electoral law
Ballots on a table at a polling station in Alexandra, Johannesburg, South Africa, 8 May 2019. (Photo: EPA-EFE / Yeshiel Panchia)

While many in our commentariat (this member included) are obsessed with the possible results of next year’s elections, it is still not clear exactly how those polls will work and which votes will be counted. This is unprecedented in our democratic history.

Up until now, South Africa’s electoral system has been relatively simple and virtually every vote led to parliamentary seats being allocated. Now, it is likely that the electoral system under the new law will be challenged in court, with voters and the Electoral Commission of South Africa (IEC) at this stage not knowing exactly how the system will run next year. Considering how high the political temperature is likely to be next year, it may be unwise for us to continue down this path.

On Monday, President Cyril Ramaphosa signed the Electoral Amendment Bill into law. This follows a Constitutional Court ruling forcing Parliament to create legislation to allow independent candidates to run for office. No longer do individuals have to join or form political parties.

However, at least five different groups have already said they will challenge the act in court, and there are indeed strong grounds to believe that judges will find it unconstitutional.

The first problem with the act is that, under this system, an independent candidate wanting to contest in a province would have to obtain 12,000 signatures to get on the ballot, while a political party has to acquire only 1,000 signatures to get on that same ballot.

The second is that “left-over votes” will be distributed to political parties.

If an independent candidate needs 50,000 votes to get a seat in Parliament and gets 100,000 votes, then there are 50,000 “left-over votes”. Under the current system, those votes will not go to the candidate (who will already have a seat). Instead, it appears that these votes will be distributed among various political parties. Those who oppose the system say it means that the independent candidates’ support will be gifted to the bigger parties, helping them win more seats in Parliament.

Needless to say, the parties could end up gaining seats in Parliament from the votes of people who did not vote for them and definitely didn’t want to support them. This cannot be fair or constitutional.

Was this situation deliberately created?

The sheer madness of this situation leads to questions about whether it was created deliberately.

Certainly, all of the political parties currently in Parliament (who needed only 1,000 signatures to get on the ballot in the first place) have much to lose from the introduction of independents.

And this may explain why it took so long to actually discuss the issue and then to finally vote on a bill (in the end, the ANC, the EFF and others voted for it; the DA, the IFP and others voted against it).

In the middle of this mess is the IEC.

It has to arrange an election which will probably be held towards the end of the first half of 2024 — just over a year away. The IEC has said it needs two years to prepare for elections. 

That sound you hear is the ticking of a very important clock.

With no certainty of how exactly the balloting will work, the IEC has already said that if there is a court challenge to the new electoral act it will make their work much harder.

There is just so much that is not known at this stage.

Will independent candidates be allowed to run? Will the court overrule Parliament and force it to pass another bill before the election? Could part of the current/new act be struck down and part of it retained? Could it turn out that all of the changes to the law will have to be abandoned?

Judges may, once again, be forced into a position where they have to accept that there will be some unfairness, and then have to allow Parliament to get away with not complying with previous rulings.

In the meantime, political tensions are clearly rising.

Two possible outcomes (both bad)

While there are many possible bad outcomes to all of this, two stand out.

The first is that a party, an individual or a group of people challenge the results of the elections in court. This would be unprecedented in SA (mainly because elections have never been so tightly contested). It could also mean it would take weeks before the election results are finalised.

The consequences of this would be devastating.

The second possible outcome is that many voters feel they have been slighted by an unfair system. (If your vote is used to give a seat to a party you did not vote for, how would you feel?)

This would mean that a large group of people feel our democracy is not working for them and that the election results are not legitimate. 

All of this points to how important it is for the system to be well understood and accepted.

While our current system has some shortcomings (it is impossible to force MPs to be accountable to constituencies, for example) — it is simple, and every vote is counted and leads to parliamentary seats being allocated. In 2019, the Black First Land First party, the Socialist Revolutionary Workers’ Party and several others did not get enough votes to get a seat.

This gives our current system legitimacy and leads to an argument that to make a major change now, just before the most contentious election in our democratic history, would be unwise.

A legal remedy

In other words, next year’s electoral system should be the same as the system in 2019, when South Africa last voted in a general election.

There is a legal remedy to make this happen. The Constitutional Court could, again, suspend the finding of invalidity until after next year’s election, and essentially give Parliament more time to include independent candidates.

But there are limits to how far this argument can go.

It is probably correct to say we should not make any changes to our voting system before this election because it will be so contentious. But it is entirely possible that the polls scheduled for 2029 will be even more tightly contested, and it could be even harder to make changes then.

Also, independent candidates would still be excluded. And if many of the political parties in Parliament deliberately delayed acting on the first Constitutional Court ruling so as to exclude them, their strategy has worked.  

Much is now going to happen. The lawyers will make more money and the politicians will continue to squabble.

Unfortunately, it is also likely that the people most important in this process, the voters, will be ignored. DM


Comments - Please in order to comment.

  • Thabang M says:

    Stephen, in addition to getting some facts wrong you are an alarmist, it does not appear like you read the Act.
    – The new legislation requires same number of signatures for both party and independents, so there is nothing unfair going forward.
    – Excess votes are not transferred to parties as you claim, but next highest, which can be independent or party.
    – We agreed on a proportional party system is best for us, transferring excess votes of an independent to next highest vote-getter is fair game. Their votes will not be thrown away as suggest before. – – Independents cannot expect the full rights of parties, otherwise they must just form a party.
    – The idea that a court challenge because of this amendment will stall announcement of results is also far-fetched because no one can claim they were robbed of votes they didn’t have in the first place, and an independent cannot claim unfairness if excess votes go to other independents or parties because (s)he made a conscious choice to be an independent.
    The amendments have fault-lines, like any electoral system, however I don’t think these are grossly unconstitutional. And please read before you submit an analysis, this is embarrassing!

    • Sue Malcomess says:

      Sorry but I’m alarmed even by your explanation. You are obviously against independent candidates and I certainly am not happy thinking my vote will be wasted by going to a party I have no faith in and who I didn’t vote for. A constituency based election is the way to go but even that has severe drawbacks eg my ANC municipal councillor is simply MIA. I have found it impossible to contact him.

    • Shelagh Gastrow says:

      I would find it problematic for my vote to go to anyone or any party I didn’t vote for. What if I vote for a person whose focus is the environment and the left overs (one of which is mine) go to another individual who is a climate change denier or a party with no environmental policy?? 50 000 votes = a seat for someone who doesn’t deserve it. That isn’t democratic.

    • Viviana Smith says:

      “We agreed on a proportional party system is best for us, transferring excess votes of an independent to next highest vote-getter is fair game. ” NO – it is not fair. It’s called theft and fraud. It should be my choice to risk wasting a vote on an independent candidate – another candidate/party should not get to STEAL my vote simply because the independent candidate met his quota. I am utterly repulsed that this was passed into law and I certainly cannot see how such a blatant violation of my voting rights will stand when challenged under the Constitution. What is truly embarrassing is that anyone thinks this is constitutional and sees fit to defend it.

    • Penelope Meyer says:

      “Independents cannot expect the full rights of parties, otherwise they must just form a party” Whaaat? This is exactly the problem with the party political system. Parties are somehow seen as sacrosanct and better. Which results in blind voting along party lines. Independent, by their very title, can be expected to vote truly according to their conscience, which renders them far more valuable, in my opinion. I would love to have a whole parliament of independents voted for by their own constituents, which would mean that we don’t have this whole party whip system and that members could motivate policy on what is good for the people instead of what is good for the party.

    • Wikus van der walt says:

      Thabang, you obviously misunderstand the word fair. That us probably because NOTHING is fair anymore in your obviously ANC bubble that is destroying this country one selfish cader grab at a time. So, Thabang, explain how you see this new firm of possibly corrupting my vote as “fair”.

  • Rob vZ says:

    The proliferation of numerous independent parties and independents seems good for democracy, but terrible for governance.
    While we are fiddling with electoral reform, some creative ideas:

    – There should be as many parties as the number of primary colours (3). Each primary colour is not webbed to a party, but moved to the next party in each 5-year voting cycle. Red, Yellow and Blue. Eg. Next cycle the EFF is blue, the ANC is red and the DA is yellow. No longer can parties rely on the symbolic and emotional value of the primary colours. ( red =revolution; blue=liberal; yellow=Oldest party in Africa etc etc ). Historically in the US, the Republicans were not Red and the Democrats were Blue. This has only emerged in the last few decades.

    – No more coalitions, winner takes all in each constituency, therefore 100% accountable for governance. Coalitions seem to be the single biggest hinderance to effective governance and vote integrity.

    – Voting should be mandatory. To open a bank account you need to have voted. What was the point of the democratic revolution if half of the population don’t bother to vote?

    – No independents/ parties. Choose one of the three tents and work within. If they don’t take care or your constituency, move to another tent.

  • Dennis Bailey says:

    Pierre’s mind is needed on this. The sooner, the better. But tx for the effort, Stephen.

  • Wiilem Dreyer says:

    The “2024 election” – whether it will take place in 2024 is another question – whenever it takes place will be very “unconventional” and hardly “democratic”. One can only imagine to what extremes the ANC will go to stay in power with the well known intervention of their Russian friends in “democratic” elections.
    God help us!

  • Petrus Kleinhans says:

    The independent candidates have to be allowed to stand. The reason they are needed is that the party system have failed the people. Everyone knows why. The party system and cadre deployment removed the power from focussing on the long term interests of the people. It has focussed power to the short term interests of party politicians and the groups that can influence and control them. This is a global phenomenon, extreme in the case of South Africa. Taking the vote of a citizen and applying it to an interest group that they oppose is a dark gimmick and undemocratic. The world is ever more undemocratic. Elites control narratives, citizens are manipulated and sidelined.

  • Lisbeth Scalabrini says:

    Why is it that nobody is willing to trust who has tried something for decades, but must bang their head against the wall themselves? In lots of democratic countries independents have been allowed to run for office, so why not simply copy one of their laws?

    • Dietmar Horn says:

      It is my impression that in South Africa it is often classified as racist to adopt something that has been tried and tested by others. That’s why people in this country are always faced with the challenge of reinventing the wheel.

  • Zan-Pierre Beetge says:

    My problem is for example 17 million people voted validly in the last general election last time around. what if an independent earned 1,7 million votes, technically the have 40 seats worth of votes in parliament, why can’t their seat be worth 40 votes. Maybe give them 40 ballots to cast during voting or allow them to freely choose 39 proxies to take up their seats available in parliament. This would make this person extremely powerful, but the voters gave that independent the power.

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