The Constitutional Court slammed Parliament and Home Affairs Minister Aaron Motsoaledi for dithering in passing amendments to the Electoral Act, to allow independent candidates to stand in provincial and national elections.
Parliament "should have done more" after Motsoaledi delayed the passage of the Electoral Amendment Bill, the apex court found.
However, the court found that it was in the interests of justice to extend Parliament's deadline to pass the Electoral Amendment Act by six months.
It granted the extension on 10 June, the day the original deadline expired. The reason for this decision was handed down on Wednesday.
The saga started on 11 June 2020, when the Constitutional Court ruled that the Electoral Act was unconstitutional "to the extent that it requires that adult citizens may be elected to the National Assembly and provincial legislatures only through their membership of political parties".
The apex court then suspended the declaration of unconstitutionality for "24 months to afford Parliament an opportunity to remedy the defect giving rise to the unconstitutionality".
However, Parliament didn't start work on an amendment bill immediately. It was left to the Department of Home Affairs after consultations between the two entities.
Motsoaledi appointed a ministerial advisory committee, chaired by former minister Valli Moosa in February 2021, more than six months after the court order.
The committee's majority recommendation envisaged a system that provided a mixed single-member constituency and proportional representation (PR) system.
Motsoaledi and his department went with the minority advice and drafted a bill that relied solely on a PR system, amending it as little as possible. The African National Congress has subsequently fallen in step behind Motsoaledi.
The unanimous judgment, penned by Acting Justice David Unterhalter, notes that, on three occasions, Parliament attempted to enquire from Motsoaledi when the bill would be introduced.
"Parliament submits that when the minister failed to introduce the bill according to the agreed timetable, letters were sent to the minister in January 2021, August 2021, September 2021, and November 2021, requesting an urgent indication as to when the bill would be introduced. The minister failed to respond.
"On 10 November 2021, Parliament sent a letter to the Department of Home Affairs, enquiring whether the department would be making an application for an extension of the suspension period, as it was well-placed to advise this court regarding the measures taken to give effect to the order.
"No response was forthcoming. On 21 November 2021, it was decided that Parliament had no option but to await the executive's introduction of the bill."
Motsoaledi only introduced the Electoral Amendment Bill to Parliament in January 2022, leaving the national legislature with the impossible task of complying with all requirements before the 10 June deadline.
Parliament only approached the Constitutional Court for an extension of the deadline in April.
The court noted that Motsoaledi provided no explanation on what he did between the June 2020 ruling and February 2021, when he appointed the committee.
The judgment reads, "As a result, the minister did not, in fact, take all reasonable measures to give effect to the order. Parliament awaited the minister's introduction of the bill."
The court also took issue with Parliament not picking up the cudgels while Motsoaledi dithered.
"When it was so long delayed, Parliament should have taken steps to introduce a bill, without reliance on the minister. This it failed to do."
The court noted Parliament's steps to comply with the order.
"Although the order was directed to Parliament to cure the unconstitutionality of the Electoral Act, one cannot ignore the belated proposals by the minister which evidently added to the delay. However, Parliament should have done more. Having recognised the delay caused by the minister, Parliament could have, and indeed should have, introduced the bill itself.
"Naturally, it follows that it was also incumbent on Parliament to file an extension application in a timeous fashion."
The court said Parliament's detailed timelines and actions between June 2020 and November 2021 was evidence that it sought to give effect to the court order.
"However, Parliament still attempts to escape accountability by alleging that it did not introduce the bill because it was waiting for the minister to do so.
"Compliance with this court's order rests with Parliament. If the minister is dilatory, Parliament will not be excused from its duty to meet the deadlines imposed by a court order."
Nonetheless, the court held that the "inadequacy of Parliament's explanation for failing to introduce the bill" was not the only factor to consider, but that the overarching consideration was the interests of justice.
"Parliament, the minister and the [Electoral Commission of South Africa] have indicated that no prejudice will arise if the six-month extension is granted, because there will still be sufficient time to finalise the bill in time for the elections in 2024. On the other hand, if the extension is refused, Parliament will not be able to comply with the order."
The court found that, under these circumstances, it was in the interests of justice to grant the extension order.
The court's stance that Parliament should not have deferred to the executive, when Motsoaledi dithered regarding the bill, touches on a nerve that has been paining opposition MPs of late.
During the debate on Parliament's budget vote last week, DA deputy chief whip Siviwe Gwarube said Parliament's teeth "have been plucked out systemically and left only a shell that has so much unused potential".
"Over the past 10 years, Parliament has passed 40 bills brought before it by ordinary members versus the 312 brought by the executive," she said. "This signals a crisis - not of capacity - but of political will."
In the same debate, EFF MP Natasha Ntlangwini said the reality was that Parliament did not have the capacity to initiate and prepare legislation.
"There's no practical and implementational plans to build capacity; instead Parliament is expected to just wait and rubberstamp bills introduced by the executive."
She said 93% of the bills passed in the last 13 years were introduced by the executive.
Meanwhile, the Portfolio Committee on Home Affairs continues working on the bill, even though Parliament is in recess.
During its deliberations on Tuesday, the committee could not reach consensus on some issues, including whether independent candidates should be allowed to compete from more than one province and the formula to calculate seats.
"To avoid rushing to a vote on the matter, the committee felt it prudent to further persuade each other in order to arrive at a consensus rather than an imposition. It is for this reason that the committee will continue to deliberate on the contentious areas with the aim of finding a middle ground," said the committee chairperson and ANC MP, Mosa Chabane, according to a statement.
The committee could reach consensus that independent candidates should be allowed agents to observe voting and that independents would have to submit a list with signatures and pay deposits to participate in elections.
"The committee remains committed to concluding its processes and delivering a bill worth considering by the National Assembly," read the statement.
Parliament envisages that it would be in a position to adopt the bill in September, which is enough time to make changes before the extended deadline, should President Cyril Ramaphosa refer the bill back to Parliament.