We are headed towards a constitutional showdown between the judiciary and the legislature because of Parliament’s failure to meet the Constitutional Court’s 24-month deadline to amend the Electoral Act. This aptly illustrates how Parliament has progressively become a useless behemoth in South Africa’s public life, deferring to the will of the executive at each and every turn.

On 10 June 2020, the Constitutional Court handed down a landmark judgment which called for Parliament to include the participation of independent candidates in the election of provincial and national legislatures in the Electoral Act.

This judgment was hailed as an opportunity to not only make provision for the meaningful participation of independent candidates, but to finally and fundamentally change our outdated electoral laws that fail to facilitate direct and more accountable elections.

Based on recommendations from the 2003 Frederik van Zyl Slabbert Report, the 2017 Kgalema Motlanthe High Level Commission, and most recently the majority of the Ministerial Advisory Committee to the Minister of Home Affairs, a constituency-based system where voters can directly vote for their representatives in Parliament would have been the most effective system to provide for the intentions of the Constitutional Court judgment and fix other issues in our electoral laws.

But as it stands, we have a bill that is far from ready for the deadline, rejects a more transparent and accountable constituency-based system, creates serious barriers to entry for independent candidates, wastes votes and is riddled with fundamental constitutional flaws.

How did Parliament squander this golden opportunity? Much has already been said about how the minister and the Standing Committee on Home Affairs dealt with this matter. The list of failures include: the minister only appointed a ministerial advisory committee eight months after the judgment was handed down; the public participation process was only publicly advertised on a weekend’s notice; there was no public education on the bill that preceded the public hearings; and the committee voted Honourable Mosiuoa Lekota’s comprehensive and transformative bill undesirable for unjustifiable reasons.

Notwithstanding Parliament’s bungling of this process, this is but one example of the failings of the separation of powers. This failing is due to the lack of a mechanism between the judiciary and legislature that is not litigious or adversarial.

This is the crisp issue: the Constitutional Court declares legislation unconstitutional and suspends orders of unconstitutionality for a specified period. This gives Parliament a specified time to rectify this constitutional defect. But the judiciary ultimately has to cross their fingers and hope that Parliament will do the necessary work, in good faith, to achieve that outcome in the stipulated period.

This is a systemic issue that we have seen before, in a different context, with the infamous South African Social Security Agency (Sassa) grants matter. On 29 September 2013, the Constitutional Court declared a contract between Sassa and Cash Paymaster Services invalid. The declaration was suspended until 31 March 2017 to enable Sassa to award a new tender. Instead of awarding a new tender, Sassa decided it would provide the services itself.

Despite being aware in April 2016 that it would not be able to provide those services, Sassa did not inform the court of this fact until 28 February 2017, a month before the deadline. This resulted in an order for the extension of the suspension of invalidity for another year, with the Constitutional Court assuming a supervisory role, appointing a panel of experts, and the minister and Sassa filing reports every three months.

Despite all these measures, the Constitutional Court still had to grant a further extension of the suspension of invalidity as people would not have received their grants if a further suspension of the invalidity was not granted.

Fast forward to 2022, and here we are again. Knowing full well that there was no way that they would meet the deadline, Parliament waited until 26 April, less than two months before the expiration date, to file an application for an extension application. At this stage, the committee had not even taken a vote on the desirability of the bill or done clause-by-clause deliberation. It’s disingenuous behaviour at best. At worst, it’s blatant public deception. 

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Parliament waiting this long to file an extension application means that it puts the Constitutional Court in a no-win position since the hearing for an extension will most likely only be held after the expiration date, which you can argue, forces the court’s hand to grant the extension.

It is established in law that the Constitutional Court will not interfere in the legislative process prematurely, or until it absolutely must. This means that even when civil society organisations (such as the One South Africa Movement) can see that the legislature is dragging its feet, there is nothing anyone can do in the courts until the matter is ripe for litigation. We are forced to wait and sit on our hands while Parliament squanders precious time.

Therefore, we need an independent body, akin to a Chapter 9 institution, that will ensure that Parliament acts reasonably during the legislative process, adheres to court-mandated timetables, meaningfully facilitates public participation and ultimately ensures that extension applications are reserved for situations of absolute necessity where Parliament has acted in good faith. Without it, Parliament can waste time and only must account for that time retrospectively, which frustrates the realisation of the rights of the people.

The principle of finality in litigation promotes certainty which forms part of the rule of law. This becomes especially important considering the upcoming 2024 election. It is no secret that there are constitutional challenges awaiting the amendment bill in its current form because it does not adequately reflect the intentions of the New Nation judgment.

Read in Daily Maverick: “ConCourt ruling on Electoral Act has profound implications for democracy in South Africa”

The longer it takes for Parliament to finalise the amendment, the longer it takes for challenges to the bill to be heard, and the longer it takes for a final bill to be passed. That leaves the Independent Electoral Commission (IEC) with even less time to prepare for an election which potentially jeopardises the national election. All because Parliament was left unchecked in steering this process for two years.

The Constitutional Court cannot continue to make lofty judgments that seek to uphold our constitutional values, and have stakeholders, whether it’s the executive or the legislature, come back and hold the court hostage with these extension applications. To avoid this inevitably happening again in the future, an independent body is required to act as an oversight to Parliament in these circumstances.

As seen in the Sassa grants situation and potentially in the case of the Electoral Act, the delays of Parliament have dire consequences for the South African public. DM