The Constitutional Court will soon hear two challenges to the newly passed Electoral Amendment Act, one of which challenges the threshold set for independent candidates to enter the national election and the second challenges the number of seats available to independent candidates in the National Assembly. The court has also been asked to consider the way in which seats are calculated when an independent candidate vacates a seat. 

The ConCourt has combined the cases, brought by the Independent Candidates Association and One SA Movement, for hearing on 29 August. The outcome of these two cases will have a significant impact on the 2024 national elections which are due to take place between 22 May and 14 August 2024. 

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One SA Movement, which was founded by former DA leader Mmusi Maimane, is challenging section 31 (B) of the amended Electoral Act, which sets a threshold of signatures needed for independent candidates to enter the election. The act calls for independent candidates to submit a list of names and ID numbers that amount to 15% of the total number of votes needed to obtain a single seat in the National Assembly or provincial legislature, depending on where they intend to contest. One SA Movement’s Jonas Mothibe Mogale argues that “the Amendment Act places an impermissible and arbitrary barrier to entry for independent candidates to register for elections by placing an unreasonably high signature requirement upon them”.

Mogale says Parliament did not adequately consider the inputs of various parties and also argues that the act is invalid due to Parliament missing the initial deadlines for finalising the bill. 

“If OSA’s analysis is correct, this means that the Electoral Act became invalid on 28 February 2023. This arose because the period of suspension expired and because there was no replacement legislation or amendment made to that Act, in the form of an Act of Parliament, duly assented to and signed by the President within the ordered period of time.

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The second case, brought by the Independent Candidate Association (ICA), focuses primarily on the seat allocation of independent candidates in the National Assembly. 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 mix, 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 and these have been 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. The ICA argues that the current 200/200 seat split is unfair and unconstitutional.

Parliament and the Minister of Home Affairs have opposed both cases and will argue against them in the Concourt. Parliament argues that the current 200/200 seat split makes the most sense for calculating seats and ensuring proportional representation, which is required by the Constitution. 

Home Affairs Portfolio Committee chairman, Mosa Chabane, submitted affidavits in both cases defending Parliament’s work in drafting and completing the amended laws. “The signature threshold of 15% was the subject of robust debate and careful consideration. It represents the outcome of a careful balancing exercise of imposing a threshold to participate in the elections while not being unduly onerous to the independent candidates,” he says. 

The IEC is keeping a close eye on these cases as they will have a major impact on their work. IEC chairman Sy Mamabolo has told Daily Maverick that the Electoral Act is by no means in its final incarnation and much work will be done on it after the 2024 election. “We’ve got to see the current electoral system as a transitional system for 2024. In the Electoral Act now, it has conceptualised an electoral reform consultation panel whose task really is to research and recommend to Parliament a new electoral system for implementation in 2029,” he said. DM