The question of how many seats independent candidates should be allowed to contest is now before the Constitutional Court. The Independent Candidates Association (ICA) says independents should be allowed to contest as many as 350 seats, while Parliament argues that 200 is more rational.

The Electoral Commission of South Africa (IEC) has warned the Constitutional Court that any change to the already amended Electoral Act could have impacts on the timelines for the 2024 national election. The IEC has chosen not to oppose the case brought by the ICA, but has submitted an explanatory affidavit that it hopes will help the court reach a decision sooner rather than later.

IEC chairman Sy Mamabolo says that it must prepare for elections at the “earliest possible date”, which is 22 May. But it won’t be able to do this until the issue of how independent candidates should be introduced to the system is adequately dealt with. 

The ICA case is one of two before the ConCourt and for the most part, it’s a case about numbers. The amended Electoral Act has split the 400 seats available in the National Assembly in half and 200 are considered “regional seats” which independent candidates can contest alongside political parties. The other 200 are “compensatory seats” which parties will contest.

The ICA has argued that this split is unfair to independents, leaving them with fewer seats and a higher threshold of votes to attain them.

Parliament has argued that the system is fair, while the IEC is mainly concerned about how this and other cases will affect its preparations. 

In an affidavit, Mamabolo told the court that the current “working” closing date for political parties to register for the 2024 election is 12 February, while the proposed date for independent candidates is 29 February.

“Parties typically commence election campaigns eight to twelve months in advance of the national elections. A change to the allocation of regional seats may impact parties’ elections campaigns and where they choose to focus their resources.

“The allocation of regional and compensatory seats also informs parties’ compilation of their regional candidate lists and compensatory party lists. These lists need to be finalised and submitted to the Commission for processing by no later than 8 March 2024,” Mamabolo told the ConCourt. 

He added that the national election is due to be held between 22 May and 14 August 2024 and that the ICA’s contention that a change to the electoral system would not affect the IEC’s work is “not correct”.

“The commission’s results system would need to be adapted to accommodate the amendment. The system enables the capturing and auditing of results, the generation of reports from the results-capturing process and the allocation of seats according to the results. In particular, the seat allocation model will need to be adapted to accommodate the amendment the applicant seeks,” he said. 

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Mamabolo said such a change would need about four weeks to implement, meaning the process needs to be completed “by mid-October 2023 to ensure that the Commission’s preparations are not materially prejudiced.

“The Commission accordingly requires certainty in this matter by mid-September 2023 so that the results systems may be independently audited and any audit findings ameliorated ahead of the elections.” 

Further complicating the IEC’s work is the fact that Statistics South Africa is yet to release the results of the 2022 census. These numbers would confirm for the IEC which areas have the largest populations and consequently, the largest number of potential voters. The census would also confirm the number of eligible voters.

“We have a need for that information because it helps us target our communication. We want to ensure that in areas where we have under-representations we have a disproportionate allocation of our communication resources as well as voter education,” Mamabolo said in a recent engagement with Daily Maverick. 

Down to the numbers 

At the heart of the dispute is a complex mathematical question of how many seats constitute a fair allocation. In the previous election, voters were presented with two ballots — one for the provincial legislature and the second for the National Assembly party votes. Now that independent candidates will be brought into the equation, voters will have three ballots, two of which will apply to seats in the National Assembly.

The Constitution allows for 400 seats in the National Assembly, broken into two categories, regional or provincial seats and national seats. Under the current amendment, independent candidates will compete for the 200 regional seats alongside political parties, while parties will compete among themselves for the remaining 200 “compensatory” seats. And this is where the dispute arises. The ICA argues that the current 200/200 seat split is unfair and unconstitutional.

In 2020, the ConCourt ruled that the Electoral Act was unconstitutional for banning independent candidates from contesting in national elections while allowing them to participate at the municipal level. The court ruled that the act should be amended by Parliament, following a case brought by the New Nation Movement.

In April 2023, the amended act was signed into law by President Cyril Ramaphosa. The amendment process was not without challenges and was delayed beyond the initial period provided by the court. 

Now the ConCourt is being asked to consider whether the work that Parliament did to refine the system best serves candidates and voters. According to the ICA’s Michael Louis, Parliament has missed the mark, because the way in which the Electoral Act has been amended results in the playing fields being unlevel.

“There is no justification for the 200/200 split between regional and compensatory seats. The compensatory seats can be reduced from 200 to 50, without affecting the overall proportionality of the outcome,” Louis said in his affidavit. 

He argued that the 200/200 split is irrational and inconsistent with the rule of law and violates section 3 of the Constitution, which contends that “all citizens are equally entitled to the rights, privileges and benefits of citizenship”, because independent candidates and those who vote for them are not treated equally.

He also argued that the regional and compensatory system won’t apply in the provincial elections despite independents participating in this part of the election and sees this as an indication that the “compensatory seats are not a necessary feature of the electoral system.

“There is no rationale for selecting 200 as the number of seats available in the collection regional elections and for selecting 200 as the number for compensatory seats. An immediate and obvious consequence of only 200 seats being available for elections for which independents are eligible is that far more votes are required by independent candidates in order to secure a seat than is the case for parties. This creates an unfair election, distorts proportionality and reduces the value of votes cast in favour of independent candidates for no reason, let alone a convincing reason,” Louis said.

The ICA has 29 members and associates who are intending or considering standing as independent candidates. 

“We know that we have hundreds of inquiries, but until we know the final impact of the act that will regulate barriers of entry to independent candidates, we are limited in membership.” 

Expert advice

To help make its decision, the ConCourt has not only been provided with affidavits from Parliament and the ICA, but also two expert reports which take different views on the correct numbers needed for the new system to work. 

Actuary and election data analyst Michael Atkins has submitted a 42-page report in favour of the ICA. The report says there is “no inherent reason or calculation underpinning the selection of 200 as the number of seats available in the collection regional election”.

Atkins argues that the regional election should allow for 350 seats to be made available for independent candidates and 50 seats as “compensatory seats” that would allow the IEC to balance out the numbers for political parties in terms of proportional representation.

“The disadvantage suffered by independent candidates offends the rights of free and fair elections, as set out in section 19 (2) of the Constitution. The effect is that independent candidates are not fully or daily able to exercise the rights recognised by the court in the original ruling giving rise to the Electoral Amendment Act,” Atkins says in his report.

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While the IEC is not opposing the case, it has submitted an explanatory affidavit drawn up by Mamabolo accompanied by a different analysis concluded by Wits School of Governance representatives Dr Halfdan Lynge and Simon Rosen. In their report, they indicate that they ran 100,000 simulations for various electoral formulae to try to determine whether the amended law introduces additional disproportionality. 

“Based on the analysis and the finding presented in this paper, it is our view that the Electoral Amendment Bill, if enacted, would not violate the Constitution,” the report concludes.

Mambolo explained that the IEC was in favour of the 200/200 split as it aided Parliament in coming up with the mechanism before the law was concluded.

Meanwhile, Parliament says the ICA has misunderstood the system. Mosa Chabane, the home affairs portfolio committee chairperson, said the criteria for obtaining the 200 regional seats was the same for independent candidates and political parties.

“When individuals choose to contest the elections as independent candidates (rather than forming a political party), they do so in the full knowledge that they can only be elected to a maximum of one seat. In voting for an independent candidate, a voter too accepts that an independent candidate may only be elected to a maximum of one seat,” he said on behalf of Parliament.

“They must meet the same quota to be elected to the National Assembly. So too, votes tendered in support of an independent candidate carry equal weight to that of a party. There is no differentiation in this regard,” he said.

Chabane added that the regional and national ballot system would be beneficial to voters.

“In this way, voters will not be forced to choose between a false dichotomy between a political party and an independent candidate, but may, for example, vote for an independent candidate for their regions and for a political party for the compensatory seats.”

More reform to come 

Home Affairs Minister Dr Aaron Motsoaledi has also deposed an affidavit, in which he has questioned why Louis has seemingly brought two cases to the same court — one under the banner of the ICA and the other on behalf of the One South Africa Movement. Both cases rely on the same expert, Atkins, who Motsoaledi says is not properly qualified and “has no actual expertise in elections matters”.

Motsoaledi added that beyond the current amendments, electoral reform must continue, but these issues “have to wait for another day”.

“Government has not turned its face against calls for broader reform. A formal structure has been established in terms of the [Electoral] Amendment Act for the purpose of deliberating on broader reform,” he said.

He agreed with Chabane’s contention that in relation to the 200 regional seats, the playing field was the same.

“I accept that the law differentiates between independent candidates and political parties, by providing that independent candidates can only run for the 200 regional seats, whereas political parties can run for the 200 regional seats and the 200 compensatory seats. But this is in no way unconstitutional.”

Motsoaledi added that there was a good reason not to adopt the 350/50 split proposed by Atkins and the ICA because of the risk of overhand, and good reasons to retain the 200/200 split currently in law. The President, who is cited as the first respondent in the case, has chosen to abide by the court’s ruling. The case will be heard on 29 August along with a second case brought by the One South Africa Movement. DM