Electoral reform and the inclusion of independent candidates into our electoral process

On May 29, 2024, South Africa heads to the polls, and following the substantial legislative reform brought on by the New Nation Movement judgment, voters can vote for an independent candidate for the first time. The judgment introduced independent candidates into our political system and prompted Parliament to pass the Electoral Amendment Act.

The Act provides for two key reforms:

• 200 regional seats of Parliament’s 400 seats can now be contended for by both political parties and by independent candidates. An independent candidate can only fill one seat and so if a candidate receives more votes than the regional quota allows for, these votes are reallocated in accordance with the recalculation method set out in Schedule 1A of the Act. This recalculation method also disregards votes cast for an independent candidate who forfeits their seat.
• An independent candidate can now only contest an election if they receive voters’ signatures totalling 15% of the relevant region’s quota. In larger regions with bigger voter bases, this can amount to up to 14, 000 signatures, far more than the 1, 000 signatures previously required.

The Act was challenged in December 2023 and the Constitutional Court was twice tasked with evaluating the Act’s reforms.

In One Movement South Africa NPC v President of the Republic of South Africa and Others, the applicant argued that the 15% voter signature requirement was unconstitutional and invalid as it limits the rights to freedom of association, freedom to make political choices and to stand for and hold public office. The Constitutional Court agreed and ordered that independent candidates were only required to obtain 1000 signatures in order to register for participation. This ‘reading in’ remedy, which operated with immediate interim effect, made contesting the 2024 election more accessible for independent candidates.

One Movement also argued that the recalculation method was unconstitutional as it does not provide for proportional representation, infringed on an individual’s right to vote by disregarding the votes cast for an independent candidate, and in effect favoured political parties. The Court found that the recalculation method did not infringe on the right to vote.

In her minority dissenting judgment, Justice Theron found that the recalculation method benefits large political parties and skews proportional representation. However, because One Movement did not suggest any suitable alternatives, and given the urgency brought on by the imminent election, the Court found that it was not in the interests of justice to find the current recalculation method unconstitutional.

In Independent Candidate Association South Africa NPC v President of the Republic of South Africa and Others, the applicant argued that the 200/200 seat split unconstitutionally favoured political parties, because independent candidates are only allowed to contend for regional seats. The Constitutional Court found that the 200/200 seat split does not infringe on any political rights under section 19 of the Constitution, nor does it infringe on the right to equality.

Authored by Caroline Cotton and Norton Rose Fulbright’s Impact Litigation Team, which litigates on the country’s Bill of Rights to achieve legal reform by holding the State, and other role players, constitutionally accountable.