The controversial Electoral Amendment Act faces another Constitutional Court challenge, this time related to the signatures prospective independent candidates must obtain to be eligible and the way the seats will be recalculated when there are vacancies.
Last month, Independent Candidates Association (ICA) chairperson Michael Louis applied for direct access to the Constitutional Court to challenge the Act.
The challenge is based on the fact that only 200 of the National Assembly's 400 seats are available to independent candidates, and will create an "unfair election, distorts proportionality, and reduces the value of votes cast in favour of independent candidates for no reason, let alone a convincing reason".
Now One South Africa (OSA) has followed suit.
The Act requires independent candidates to submit to the Electoral Commission of South Africa (IEC) a declaration with names, identity numbers, and signatures of voters who support their candidature.
To be elected to the National Assembly, the names must equal 15% of the number of votes required to obtain a seat for that region in the preceding election, if contesting only one region.
This means independent candidates contesting in next year's elections will have to get the following number of signatures in each province, based on the 2019 election results:
Eastern Cape: 11 656
Free State: 11 340
Gauteng: 13 890
KwaZulu-Natal: 13 045
Limpopo: 11 329
Mpumalanga: 11 924
North West: 10 652
Northern Cape: 10 271
Western Cape: 13 201
If you intend to contest more than one region, you need to get signatures amounting to 15% of the province with the highest quota in the preceding election.
For instance, if a candidate wants to compete in Gauteng and the Northern Cape, they will need to get the Gauteng figure of 13 890, instead of the Northern Cape's 10 271.
In his founding affidavit, OSA national chairperson Jonas Mothibe Mogoale states: "The chief complaint of OSA is that the Amendment Act requires both political parties and independent candidates to acquire the same number of signatures in order to register."
He noted that the signature requirement’s stated purpose was to "limit the number of frivolous candidates on the ballot" and that the requirement for new parties, before the amendment, was 1 000 signatures.
'Out of kilter'
"The only reasonable inference to draw is that 1 000 signatures satisfied the same purpose: So that political parties are serious about entering the election race," Mogoale said.
"OSA believes that the Amendment Act unjustifiably, arbitrarily and disproportionately sets an independent candidate's requirement at 15%. It further submits that the requirement does not fulfil any legitimate government purpose and that less restrictive means, such as the original 1 000 signature requirement, would achieve the same objective."
He added that Parliament used provinces as large constituencies, making the signature requirement relative to the large vote thresholds of those provinces.
The inescapable inference is that the deliberate decision to use provinces as a unit of measurement for the number of signatures required, is arbitrary.
"Not only does this approach lead to exorbitant numbers of signatures being required, but the principle is out of kilter with the rest of our electoral system. The previous 1 000 signature requirement had no link to the vote threshold nor was it linked to the number of voters per province. It represented an ordinary, feasible and reasonable measure.
"The second issue is that the 15% threshold is arbitrary and is not apparently linked to any legitimate government purpose or objective. Parliament has failed to justify the figure. In other words, it has failed to show a rational connection between the threshold and the purpose sought to be achieved."
OSA is also questioning the constitutionality of the complicated way seats will be recalculated when vacancies occur.
Mogoale argued that it benefits the bigger parties and that it treats those who voted for parties differently to those who voted for independents.
"Voters of political parties achieve the security of knowing that their concerns are represented regardless of a vacancy. Those who vote for an independent candidate do not have this protection. This affects a voter's free choice as a voter must then risk voting for an independent candidate knowing that their vote may not result in their interests being represented," he stated.
He argued that this violates the right of equality before the law.
"The values of human dignity and equality require that all voters are given an equal say in who will represent them, even at the stage of vacancy of a candidate."
OSA is asking the apex court to declare the "offending provisions of the Amendment Act" unconstitutional and refer it back to Parliament for a remedy.
"It also seeks from this court that such an order ought to explicitly direct that amendments be promulgated within a determined period of time, with it being made clear that this time period includes whatever period might be required for the president to complete his constitutional role in that legislative process."
OSA also wants the court to suspend the period of invalidity, and that an interim measure be put in place while Parliament fulfils its obligations.
1 000 signatures
"This interim measure will at least permit a fairer, democratic and constitutionally compliant election in 2024, than is presently the position," Mogoale said.
The interim measures OSA proposes are that the signature requirement of 15% is lowered to 1 000 signatures, as an interim measure, and that the vacancies are filled by "the party or eligible, unelected independent candidate that contested the preceding election having the highest surplus of votes", rather than the current recalculation formula.
The legislative amendment was required by a ruling of the Constitutional Court in June 2020, which found the Electoral Act 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".
This was met with much hope among those calling for electoral reform. As the legislation slowly began to take shape, this hope evaporated, and the amendments pushed through by Home Affairs Minister Aaron Motsoaledi, backed by the African National Congress in Parliament, met much criticism based on the notion that the Act favoured big parties, rather than allowing independent candidates to compete on an even footing.
After the Constitutional Court twice extended Parliament's deadline, the Electoral Amendment Bill was passed on 23 February. President Cyril Ramaphosa signed it into law on 17 April.
The Presidency's statement announcing that Ramaphosa had signed the Bill into law, stated: "President Ramaphosa is satisfied that the processes leading to the passing of the bill followed all legislative procedures as envisaged by the Constitution and that the substance of the bill will pass constitutional scrutiny."
On the same day, the IEC indicated that a court challenge to the Bill, which was mooted by civil society organisations since at least October last year, could jeopardise the 2024 elections.