The Constitutional Court on Tuesday heard the first day of argument in two cases that challenged amendments to the Electoral Act which are meant to take effect in the 2024 elections.

The first case was brought by the Independent Candidate Association (ICA), which is taking issue with the system being applied to the allocation of parliamentary seats.

The amended law has split the 400 seats in the National Assembly into 200 “regional seats” and 200 “compensatory seats”. Independent candidates can contest the 200 regional seats, while political parties will contest on both portions of the ballot.

The ICA argues that this is unconstitutional as it does not treat the two groups the same and has asked the court to substitute that clause in the Electoral Act with a provision of 350 regional to 50 compensatory seats.

However, Constitutional Court justices have questioned whether they would not be stepping into the parliamentary domain if they made such a substitution.

“If this court were to substitute the 200 with 350, would this court not be breaching the separation of powers? The court would basically be imposing an electoral system on the country,” Justice Leona Theron said.

The ICA’s lawyer Griffiths Madonsela SC denied this, saying the court had a “wide discretion” to reach an effective remedy.

Madonsela said his client was opposed to the idea of sending the legislation back to Parliament for reconsideration as this would probably take several months or even two years. This would mean the change would not be made in time for the 2024 election, which could take place as early as May.

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Justice Rammaka Mathopo had similar concerns to those of Justice Theron, saying that Parliament had already conducted a “thorough and proper consultation”.

“The system you are proposing was also considered. And expertise was sought, and Parliament in its wisdom decided that this is the system that was acceptable. Are we as a court in a better position to second-guess what has gone through a proper serious and investigative process? What can the court do and how far can we go?” he said. 

Threshold to entry 

The second case before the court dealt with the threshold set in the act for candidates to enter the election. Previously, political parties were required to acquire 1,000 signatures from citizens along with the registration fees set by the Electoral Commission (IEC).

The amended act now sets that threshold at 15% of the number of votes required for one seat in the National Assembly, which the court heard would be between 11,000 and 14,000 signatures. 

The One South Africa Movement has argued that this threshold, which will be used for the first time in the 2024 election, presents a “fundamental infringement of rights”.

“What is now being added is a pre-election barrier. It is self-evident that if you don’t get the 11,000 to 14,000 signatures, you do not enter the race. The question does not turn on the rationality of that. The question turns on the impact of the fundamental rights and the core values of our Constitution,” said advocate Andrea Gabriel SC on behalf of the One South Africa Movement. 

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The One South Africa Movement called on the court to make a ruling that the threshold should return to the original 1,000 signatures. However, Justice Theron once again questioned whether the court could “read in” an amendment as opposed to sending the law back to Parliament to amend.

“This court, if it were to do that, would be imposing a voting regime… Isn’t this court being placed in a position to find solutions that should be found in Parliament?” Justice Theron said.

Gabriel argued that six months would not be enough time to resolve the issue, meaning the next election would proceed with a barrier to entry.

She said that the 15% signature requirement was an “excessive increase from what went before”. 

Deputy Chief Justice Mandisa Maya was also concerned about the effect the proposed changes would have on preparations for the elections.

“The IEC’s concerns that were raised with you earlier: that is the risk of a lengthy and complex ballot. There were a host of other challenges raised such as the risk of voter confusion, the risk of voting taking longer and spoilt votes. You repeatedly submitted that the commission has not said it will be impossible to run the election, maybe just difficult. These are serious challenges that could threaten the integrity of the election. Should they be ignored still?”

Gabriel replied that while these risks could make the election more difficult, the rights of voters and candidates should be considered.

Amicus

The Rivonia Circle entered the case as an amicus curiae (friend of the court) and argued in favour of a lower number of signatures for a candidate to be allowed to contest. The democracy-building NGO, which was founded in 2021, said it wanted to provide the court with important information about how the issue of threshold for entry to the election is handled in comparative democracies.

Advocate Max du Plessis SC argued that the IEC had only done a single comparison, with Denmark, and did not explain why it had chosen a democracy so different from South Africa’s. 

He said Denmark was not comparable because of its history and high voter turnout.

The Rivonia Circle had looked at the thresholds in Canada, Kenya, Turkey and Germany.

“We tried to be fair when we found jurisdictions that we thought would be comparable. We didn’t choose them because they are low. We chose them because we thought they were helpful and comparable. Germany has a similar system to ours. In each of them we’re looking at a lower physical number [of signatures to enter the election],” he said.

“It’s the physical numbers that do the harm. New entrants start on the back foot. We know that new entrants don’t have the benefit of state funding,” he said.

Respondents’ arguments 

The Department of Home Affairs and Parliament both argued in defence of the current system, saying that extensive work had been done before the law was finalised. 

Advocate Steven Budlender SC, who has often represented NGOs litigating against the department in the Constitutional Court, told the court, “This is a case where the department has done what they are supposed to do.” He added that the bill went through an “extensive public consultation process” before it was finalised.

“Parliament did not want to make a mistake here. It was too important. There were major changes made by the National Council of Provinces. This is Parliament in action. The President was under huge pressure to sign it. He says, ‘I am not going to be rushed.’ He calls on his own independent council to give him a legal opinion. This is a case of government doing what it had to do,” Budlender told the court.

He argued in favour of the 200/200 split currently contained in the law, saying that it was generally proportional, as required by the Constitution. 

He added that if the court agreed with the ICA, it could not simply “read in” the amendment but would need to refer the issue back to Parliament to ensure the principle of separation of powers was not violated.

The court will hear the remainder of the arguments on Wednesday. DM