A fair, robust, effective and efficient electoral system is indispensable to any state aspiring seriously to democratic governance. There are many variations in electoral systems currently in use in states claiming to be democratic, the most common being the “first-past-the-post constituency” system which we adopted from the United Kingdom and which prevailed from Union in 1910, and the “party-list/proportional representation” system.

Many states employ variations on the above models, and some attempt to combine the best features of both systems. The way we elect our local government representatives reflects features of both systems, for example.

For the first time since 1994, the general pattern of how we will vote will change on 29 May 2024. In addition, the method by which seats are allocated, both provincially and nationally, has become more complex, consequent on the presence of independent candidates running for office.

Great ignorance about the format of the poll abounds in the voting public, even among highly literate people.

Why have these changes been made, and how will the system operate? Before we consider the revisions, we need to understand what has been in place since 1994, over six general elections, why it has worked so well, and why the changes have become essential.

How we have reached this stage

When the politicians were negotiating the constitutional future of South Africa in the early 1990s, most of the time was taken up by hard bargaining on the Bill of Rights, the division of powers between the judiciary, the executive and Parliament, the provincial and local government structures, and so on.

On the electoral system, there was a strong view that, given the harsh and unjust consequences of spatial apartheid, reliance on a constituency system would have given a hugely distorted reflection of the political wishes of the electorate.

It would also have taken inordinate time and effort to draw constituency boundaries, with the ever-present temptation to gerrymander an outcome (i.e. to manipulate the system so as to favour one political grouping or another).

It was also necessary to rely on a system which was simple for people of very different backgrounds and experience to comprehend and use. A major practical necessity was putting a system in place in a matter of a few months.

The result was that the 1993 (Interim or Transitional) Constitution provided in section 40 for a system of proportional representation (PR), which of necessity took the form of the party-list system which we experienced in the 1994 and 1999 elections.

The 1994 Independent Electoral Commission (IEC), under the exemplary and legendary management of its chair, Justice Johann Kriegler, produced an election which enjoyed overwhelming legitimacy among the vast majority of political parties and voters.

The same model was followed in the 1999 elections, but by then the “final” Constitution of 1996 had been adopted and came into operation in early February 1997.

The Constitution provides in section 46 (1)(a) that the electoral system must be prescribed by national legislation (i.e. through Parliament) and in section 46 (1)(d) that the system must among other things “result in proportional representation”.

However, Schedule 6 (item 6(3)) to the Constitution preserved the electoral system used in 1994 for only one more election, meaning that after the 1999 election, the electoral system effectively lapsed. Therefore, Parliament had to decide what system would apply as from the 2004 election.

Cabinet appointed an Electoral Task Team (ETT) in March 2002 to consider the options and advise it. The ETT was chaired by Dr Frederik van Zyl Slabbert and consisted of a further 12 members.

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It consulted widely and ascertained that there was a very high level of party-political satisfaction with the system that had served in the first two elections. It nevertheless weighed up 11 different systems against a framework which emphasised the values of fairness, inclusiveness, simplicity and accountability.

A strong majority recommendation of the ETT noted that a “mixed” system (PR plus multi-member constituencies, in the form of the nine provinces) was already in place.

In pursuit of greater accountability, the majority therefore proposed that the number of such constituencies be increased to 69 (with between three and seven members each, based on existing districts and metropolitan areas) which would form the basis for electing 300 members of the National Assembly (NA); the remaining 100 seats being allocated purely in proportion to the share of votes achieved by parties in the national ballot.

The minority view (supported by four members of the ETT) was that the system used till then should continue unchanged. Cabinet supported the minority view with the result that the 2004, 2009, 2014 and 2019 general elections proceeded using the electoral system in place for the first two democratic elections.

The exclusion of individual candidates continued to be a concern, however, and was successfully challenged in what is known as the New Nation Movement case.

In 2020, the Constitutional Court resolved that the continued exclusion of individuals from the electoral process unjustifiably limited the political rights of citizens to stand for public office (section 19 (3)(b)) and freely to associate (or disassociate) (section 18) and was thus unconstitutional. The court gave Parliament two years to remedy the situation.

The minister of home affairs then appointed a ministerial advisory committee (MAC) to advise Cabinet on how to respond to the judgment.

The MAC, chaired by former minister Valli Moosa, along with seven additional members, worked swiftly in considering the report of the ETT and two options in particular:

• Retention of the current system broadly with the accommodation of independents; or
• The adoption of a single-member constituency division of the whole country to elect 200 members of the National Assembly, with the remaining 200 seats being elected in direct proportion to votes cast in the political-party-only national ballot.

Again, the MAC split in its report of June 2021: four supported the second option, three supported the first, and one member took no view.

Cabinet adopted the minority view, the Electoral Act was amended by Parliament adopting this approach, and the IEC went ahead and set the structures and processes in place to accommodate independent candidates.

In turn, this revised system was challenged in the ConCourt in the course of 2023: the Independent Candidates’ Association (ICA) argued that the equal division (200:200) between seats filled as a result of the “regional ballot” (see below) and those distributed to parties in the national ballot worked unfairly for independent candidates, and that the division should rather be 350:50, arguing that the latter would give independent candidates a better chance of election.

There were several flaws in the ICA arguments, even on their own expert evidence, and the court was not persuaded to interfere, given that on the separation of powers doctrine, the details of the structure and workings of the electoral system were clearly (and also by its own prior decisions) a matter overwhelmingly in the jurisdiction of Parliament.

In December 2023, the Constitutional Court dismissed this challenge, and the IEC sprang into action to set up all that is needed to stage a “free and fair election” in late May 2024.

The electoral process on 29 May

As was stated at the outset, this election marks the first formal change in how voting will take place at national and provincial levels since 1994.

There is widespread ignorance about this, which may lead to confusion on the day, and many spoiled ballots.

Some political parties and media channels have done their best to dispel the confusion. In what follows, I will attempt to do the same. This is how the voting at each polling station will work.

On polling day, each voter will receive three ballot papers, not the two to which we have become accustomed over the past 30 years. These three ballots will allow us to record our voting based on national, regional and provincial lists.

In many ways, the regional ballot is where the counting process begins, so I will set out some further details on this ballot first, then the other two.

The nine “regions” replicate the provincial boundaries exactly, but the voting options listed in this ballot differ from the choices at provincial level.

They are termed “regions” and not “provinces” since they are for the allocation of seats in the National Assembly.

The regional ballot lists all parties standing within the region concerned, in addition to all those standing as independents within that region aiming at election to the National Assembly in Parliament. So, every voter must choose here between their vote for a party or an independent.

The outcome of the regional ballot determines the proportion of a total of 200 seats in the National Assembly allocated to political parties and independents who achieve the quota of votes needed for representation in Parliament.

The 200 seats are divided up among the nine regions/provinces in proportion to the total number of voters registered in each province, as a share of the total electorate.

So, if province A has 23% of the national voters’ roll registered to vote, it will be allocated 46 seats (out of the 200), which will in turn be divided between the parties and any independents relative to their share of the votes cast through this regional ballot paper.

It seems that the quota for the allocation of seats will be determined by taking the total number of ballots cast on polling day in each region and dividing it by the number of seats plus one allocated to that province (the “droop formula” is used). Seats are then allocated to the candidates and parties contesting the region concerned using the quota.

The forfeiture of a seat will occur where, for example, an independent candidate obtains sufficient votes to qualify for more than one seat in the allocation using the original quota — since an independent candidate by their nature can only hold a single seat, any additional seat will need to be reallocated.  The successful candidate is removed and all their votes are removed from the calculations, a new quota is determined, and the remaining seats are then allocated using the new quota.

The outcome of the national (“compensatory”) ballot (political parties ONLY) will reflect in the award of the remaining 200 seats (called “compensatory seats” in Schedule 2 to the 1993/Interim Constitution — yes, this division into two sections of 200 seats has been present as part of the electoral system since 1994, but it has not been highly relevant until now because the presence of independent candidates changes the formula for allocating seats in Parliament.

The quota here is calculated with reference to all votes for political parties — on both the regional and compensatory ballots — divided by the total number of seats in the National Assembly (i.e. 400), less those already allocated to political parties.

There is an important technical reason why all votes are added together: by using both the regional and compensatory ballots, the system is better able to ascertain the overall proportional support for each party than a one-ballot system would.

The outcome of the provincial ballot (political parties registered to compete within that province — so provincial ballots will differ in many cases between provinces — AND any independents standing for election to the provincial legislature concerned, will determine the composition of the members of the provincial legislatures, which vary in size according to registered voter population. Again, the quota calculations proceed like those detailed above in regard to the regional ballot.

As stated at the outset, this is a complex process, but we can be comforted by the fact that the IEC has satisfactorily coped with much of this workload in the past and indeed provided technical input throughout the process leading to the amended system.

There are, however, some complexities which may arise, which we must anticipate.

For instance, what happens if a political party succeeds disproportionately in one or more regions? Could they be entitled to a greater share of the MPs in the central Parliament than they merit, if such votes had been part of the national tally?

This is called the “overhang” problem.

The way out is that the eventual allocation of seats nationally will be adjusted to reflect the fact that their support is strongly region-based. Extra seats cannot be “created” in Parliament to accommodate such quirks in voting behaviour because the total is pegged at a maximum of 400 by the Constitution.

Another question relates to the level at which the quota is set for independent candidates as opposed to political parties, which are not the same. This issue has been contested in the most important electoral cases which have been resolved by the ConCourt over the past three years.

It appears that there will almost inevitably be differences of this nature, but insufficiently serious and disadvantageous to independents to warrant changes to the law, in the view of the court.

Conclusion

The system sounds complex, as is every electoral system.

However, there are competent, hard-working and trustworthy staff at the IEC who have experience in delivering verifiable electoral results for some three decades now.

The plethora of political parties on the ballot paper and the presence of independent candidates may cause some confusion, but the party logo and the photograph of the leader should compensate for a multitude of often similar-sounding names.

Voters need, however, to be prepared to use their vote on each ballot paper carefully and wisely, for their own good and the general welfare of the country. DM

Hugh Corder is Professor Emeritus of Public Law at the University of Cape Town.