Loophole of fielding the same candidate in multiple wards is ripe for legislative reform

While electoral thresholds have been proposed to prevent very small parties from becoming destabilising kingmakers in municipal coalitions, municipal electoral law also has a loophole – some would go so far as to call it a “scam” –  which thresholds won’t always fix. This is the fact that a single candidate is allowed to stand in multiple wards, and all of their votes in every single ward in which they stand count towards the proportional representation (PR) seats of their party. 

This is partly how Al Jama-ah ultimately got to have not one but two mayors of Johannesburg (Thapelo Amad and Kabelo Gwamanda). How did this happen? Al Jama-ah fielded a candidate in all 135 wards of Johannesburg. However, its candidate in 114 wards was the same person – Imraan Ismail Moosa. 

Why does this matter? 

First, voters are being misled. At the voting station, they are not presented with information that the candidate in their ward is also standing in another ward and therefore not necessarily available, even if elected. Voters are choosing a candidate, not the party. Is it right to mislead them about the candidate’s potential availability? 

Second, if a party is not able to muster a different person in each ward in which it is standing, should it be fielding a candidate? Should it get credit for party support via PR seats? It is misrepresenting the strength of the party. 

Third, a multiward candidate winning in two or more wards chooses only one, and a by-election is immediately triggered in the others, creating instability and uncertainty at a crucial time. 

Fourth, a party’s strength is unjustly inflated in terms of seats in this way, as a result of how seats are calculated, which may make a crucial difference to overall outcomes.

In a local government election’s first vote, people vote directly for the ward candidate they prefer. The candidate who gets the most votes, wins the ward. This is known as first-past-the-post and can lead to anomalies where a party can win an election (i.e. win the most seats) without winning a popular majority. The Constitution calls for proportionality to avoid this, and so there is a second vote, for a party – called the proportional representation vote – which is used to adjust the overall distribution of seats so that the outcome is proportional to the voters’ will.

The PR vote does not determine the proportional representation seats on their own. A calculation is done to determine overall seats. The number of PR seats is worked out from the total seats (which uses all votes), and the ward seats already won.

To determine a party’s overall seats, the number of votes at ward level are added to the PR vote. Total seats are then calculated from a quota number of votes. The quota is worked out by adding the total votes for all parties with PR lists together (ward and PR) and dividing by the number of available seats, with one then added to the result. The votes for independent candidates are not counted, and nor are the votes for parties who haven’t submitted PR lists. Yet, all the votes in every ward for a party candidate who has stood in multiple wards are counted. This does not seem to reflect the overall will of the voters. So a party candidate standing multiple times increases the party’s overall votes towards overall seats, even if they don’t win any ward seats.

To work out PR seats, if any independent candidates have won seats, the total number of available seats (for the purposes of the calculation) is reduced by that number. In the first round of allocation, every party getting a seat must have enough votes to meet or exceed the quota of votes. However, in the second or third rounds of seat allocation, remaining fractions of the quota are ranked, and the highest-ranking fractions get seats until all the seats are allocated. This is how parties can earn seats with very few votes – and why even a handful of votes in multiple wards can be crucial to the result.

Johannesburg has 270 seats, of which half are ward seats and half are PR seats. In the last municipal election in the first round, the seat quota was 6,794 votes, and in the first round 255 seats were allocated. Al Jama-ah got 17,608 votes in total – a number clearly boosted by the multiple ward votes for the same candidate, since they got 9,961 ward votes but only 7,647 PR votes. They therefore got two seats in the first round of allocation with a remainder of 0.59, which ranked them 11th in terms of remainders. Moosa, a popular man, did in fact win a ward seat outright in one of the 114 wards in which he stood (Ward 9). So the party got one ward and one PR seat in the first-round seat allocation.

Since there were 15 seats still left to allocate, this meant the top 15 remainders by rank also received seats. So the party got another seat in the second allocation, making two PR seats. Since Amad and Gwamanda were first and third on their party’s PR lists, they got seats, as Moosa had already got his seat directly via the ward vote, and was second on their PR list.

Would the party have won three seats if the same candidate had not been allowed in multiple wards? 

Although it cannot be known how voters would have voted if Moosa had not been fielded in their ward, the difference is suggested by the difference between the ward and PR votes. Voters clearly preferred the candidate to the party, by about 2,314 votes spread across more than 100 wards.

Let us imagine then that the party would have had 2,314 fewer votes, if Moosa had not been permitted to stand in multiple wards. Their remainder would then have been only 0.22, which would have placed them 24th on the remainder list, too far down for an additional seat. Only two seats would have been won by the party, and Johannesburg would have had only one Al Jama-ah mayor – or perhaps none at all, since the total balance of power would have been less fragmented, if all parties fielding the same candidate(s) in multiple wards – such as the Patriotic Alliance, which fielded two candidates tens of times – had been prevented from doing so.

It is perhaps ironic that the omnipresent Moosa subsequently abandoned his ward, to take up a seat in Parliament. All those Johannesburg voters in 114 wards who voted for him ultimately did not even have their candidate on council for the full term – and the ward was subsequently won by another party: further evidence that voters were choosing the candidate, not the party.  

The Electoral Commission of South Africa has opined that fielding the same candidate in multiple wards is a strategy that “is constitutional”. This is open to debate, since it clearly overweights the party engaging in it. What is absolutely clear is that it is a kind of fraud on the voters.

This is an issue ripe for legislative reform – and there is still time before the next municipal election. Either multiple candidacy should not be allowed, or, as is the case with independent candidate votes, votes outside of a candidate’s primary ward should not form part of the calculation for overall and therefore PR seats for their party. South African municipalities cannot afford the distortion, fragmentation and disruption this practice enables any longer. DM

Dr Jean Redpath is a senior researcher at the Dullah Omar Institute.