South Africa: Press Statement on the Judgments of the Constitutional Court in Respect of the Constitutional Challenge of the Electoral Amendment Act (Electoral Act 73 of 1998)

6 December 2023
Government of South Africa (Pretoria)
press release

Independent Candidate Association South Africa NPC v President of the Republic of South Africa and Others

1.        The Minister of Home Affairs (“Minister”) welcomes the unanimous judgment of the Constitutional Court in Independent Candidate Association South Africa NPC v President of the Republic of South Africa and Others delivered on Monday, 4 December 2023.

2.        The Constitutional Court correctly dismissed the constitutional challenge brought by the Independent Candidate Association South Africa NPC of the amendment to the electoral law.

3.        During the amendment legislative process, the Minister adopted the minimalist approach to accommodate independent candidates in the electoral system. This was achieved through 200/200 split of the regional seats. The Independent Candidate Association supported by an expert in mathematics and computer science preferred a split of 350/50. They argued that this will achieve proportional representation. In its judgment, the court rejected the flawed proposition and endorsed the choice made by Parliament in this regard.

4.        The Court reasoned that the achievement of proportionality is an assessment that should be conducted by Parliament (and not courts). Further that Parliament has indeed made the choice by complying with sections 46(1)(d) and 105(1)(d) of the Constitution.

5.        The Court ruled that the amendment to the Electoral Act does not infringe any of the constitutional rights. By so doing, the Court once again reaffirmed the sacrosanct principle of separation of powers contained in the Constitution, that is only Parliament has the power to determine the appropriate electoral system.

One Movement South Africa NPC v President of the Republic of South Africa and Others

6.        The Minister equally accepts the judgment of the Constitutional Court in One Movement South Africa NPC v President of the Republic of South Africa and Others in which the Court declared section 31B (3 )(a) (i )and (ii) of the Electoral Act 73 of 1998 as inserted by the Electoral Amendment Act 1 of 2023 invalid and inconsistent with the Constitution, to the extent that it unjustifiably limits the right to freedom of association, freedom to make political choices and to stand for public office.

7.        The constitutional challenge was in respect of 15% quota (amounting to about 4920 to 13 890) signature requirement for independent candidates and unregistered political parties. The Court ruled that the signature requirement, inter alia , places a burden on independent candidates who wish to contest elections.

8.        Parliament has been given 24 months to cure the constitutional defect and in the interim 1 000 signatures for each region in which the candidate intends to contest an election will apply.

9.        The Minister welcomes the dismissal of the recalculation challenge as proposed by One Movement NPC as it is unworkable, impractical and expensive to the fiscus.

10.      The Minister is happy with the fact that the Court ordered that One Movement NPC will not be entitled to recover any costs associated with the report of its expert (as it is unsuccessful regarding the recalculation challenge).

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