Fresh bid to overturn electoral law in apex court

Originally published in Business Day

An urgent application was lodged yesterday with the Constitutional Court by One Movement SA (OSA) to have sections of the Electoral Amendment Act declared invalid and unconstitutional.

This follows a similar application lodged in May by the Independent Candidates Association.

The respondents in the OSA case are President Cyril Ramaphosa, home affairs minister Aaron Motsoaledi, speaker of the National Assembly Nosiviwe Mapisa-Nqakula and the National Council of Provinces.

OSA argues in its court papers that the amendment act, which allows independent candidates to contest national and provincial elections for the first time, is invalid and unconstitutional because the signature requirement for independent candidates to register is so high that it creates an unreasonable barrier to entry for them to contest elections.

A further argument is that the way the act deals with seats left vacant by independent candidates disproportionately favours political parties that received a large number of votes in the election over parties with a smaller number of votes and independent candidates.

OSA has asked the court to suspend the declaration of invalidity it requests for 24 months to allow parliament to remedy the defects. During this period it has asked that certain clauses should be read in. This would mean that if the court approves of the application, the read-in clauses would apply for the 2024 elections.

OSA wants the signature requirement to be 1 000 instead of 15% of the quota for a seat in the previous election. A 15% requirement would mean that an independent candidate would need between 4 213 and 8 757 signatures (depending on the province) to register for the provincial elections and between 11 340 and 13 201 signatures for the national elections.

The 15% requirement will also apply to political parties. OSA says it is irrational and arbitrary.

It wants a change to the law so that if an independent candidate relinquishes his/her seat in a region or provincial legislature then this seat must be allocated to the party or eligible unelected independent candidate who has the highest number of votes.

In terms of the act, vacancies for independent candidates will be filled through a recalculation method that effectively discards the votes gained in the election by the vacating independent candidates and could mean that the seat is allocated to a political party. OSA says the discarding of votes means that the composition of parliament will not be reflective of the votes cast in the election.

National chair Jonas Mogoale noted in his founding affidavit that in any event the Electoral Act is invalid because it was signed by Ramaphosa about a month-and-a-half after the deadline set by the Constitutional Court for the law to be on the statute books. The suspended period of invalidity ended on February 28, so that the bill that Ramaphosa signed is invalid.

In justifying the urgency of the matter Mogoale said the “primary reason this application is urgent is that this matter involves a far-reaching matter of constitutionality and threatens the democracy of the elections and this country.

“The outcome of this application is therefore of considerable importance to the upcoming 2024 election.”

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