Constitutional Court judgement on the Electoral Act and its implications: IEC & Parliamentary Legal Advisor briefing

Meeting report

Opening remarks

The Chairperson said that this meeting was for the Committee to receive a briefing from the Parliamentary Legal Services and Independent Electoral Commission (IEC) following the Constitutional Court judgement on the Electoral Act, which was handed down on Monday, 4 December 2023. The Committee will deliberate on the outcome and implications of the Constitutional Court judgement.

Mr Eddie Mathonsi, Committee Secretary, noted an apology from Ms L van der Merwe (IFP). He also received an apology from the Minister and the Deputy Minister.

Briefing by Parliamentary Legal Services on the Constitutional Court judgement on the Electoral Act and its implications

Ms Telana Halley-Starkey, Parliamentary Legal Advisor, Constitutional and Legal Services Office (CLSO), said that on 4 December 2023, the Constitutional Court made two rulings on cases brought forward by the Independent Candidates Association of South Africa (ICA) and the One South Africa Movement (OSA).

The Independent Candidate Association South Africa NPC v President of South Africa and Others (“ICA judgement”), and the One Movement South Africa NPC v President of South Africa and Others (“OSA judgement”), were two separate applications that were heard together by the Constitutional Court on 29 and 30 August 2023, as they both challenged the Electoral Act, 1998 (as recently amended by the Electoral Amendment Act, 2023).

In terms of the ICA judgement:

• In its application, ICA sought a declarator that item 1 of Schedule 1A is inconsistent with the Constitution to the extent that the impugned schedule provides for only 200 seats in the National Assembly to be filled by independent candidates and political parties (i.e. regional seats) and the other 200 seats to be filled by political parties (i.e. compensatory seats).

• ICA proposed that the impugned schedule be amended with immediate effect by replacing the 200/200 split with a 350/50 split, where 350 seats should be reserved as regional seats to be filled by independent candidates and political parties and only 50 seats be compensatory seats to be filled by only political parties; or that an interim read-in be provided in the manner suggested and the declaration of invalidity be suspended for a period of 36 months for Parliament to address the unconstitutionality.

• The Constitutional Court unanimously dismissed the application brought by ICA. The Constitutional Court found that the 200/200 split chosen by Parliament passes constitutional muster as it achieves proportionality. The 200/200 split avoids the risk of overhang, which is crucial as the Constitution limits the seats in the National Assembly to 400. In this regard, the Constitutional Court noted that the 350/50 split presents a foreseeable risk of overhang.

In terms of the OSA judgement:

• The Constitutional Court was split on the two issues raised by OSA.

The majority of the Constitutional Court dismissed OSA’s application for relief regarding the recalculation method provided in Schedule 1A of the Electoral Act, 1998.

The majority of the Constitutional Court declared that 31B(3)(a)(i) and (ii) of the Electoral Act, 1998 (the signature requirement) be declared invalid and inconsistent with the Constitution, to the extent that it unjustifiably limited the rights to freedom of association, freedom to make political choices and to stand for public office.

• In its application, OSA sought to declare the following: that 31B (3)(a)(i) and (ii) of the Electoral Act, 1998 is invalid and inconsistent with the Constitution, to the extent that it creates an unreasonable barrier to entry for independent candidates to register for elections.

That items 5, 7, 11, 12, 23 and 24 of Schedule 1A of the Electoral Act, 1998 are invalid and inconsistent with the Constitution to the extent that these items disproportionately favour political parties with larger votes over parties with smaller voters and independent candidates.

The declaration of invalidity should be suspended for 24 months for Parliament to remedy the defects, and this period includes the period required for the President to assent to the Bill bringing about such remedies.

• On the re-calculation provisions, the majority of the CC held that the explanatory affidavits filed by the IEC and the answering affidavits filed by the Minister and Parliament adequately showed that OSA’s case has no merits and had provided explanations which had not been challenged by OSA. The recalculation method was fundamentally about respecting voters’ choices. There is no merit in the stance that a vote for an independent candidate is a vote that rejects party politics – the Applicants position relies on this unproven assumption.

• On the signature requirement, the majority judgement penned by Kollapen J held that there was a rights violation considering that a provision that regulates a right will amount to a limitation of that right when it goes beyond regulation.

In other words, although the signature requirement regulates the right to freedom of association, freedom to make political choices and the right to stand for and hold public office, it goes beyond regulation as it deters independent candidates from even contesting an election. It does not give effect to these rights but limits it.

• The Constitutional Court ordered that section 31B(3)(a)(i) and (ii) of the Electoral Act 73 of 1998 is declared invalid and inconsistent with the Constitution. This order is suspended for a period of 24 months for Parliament to cure the defect - Parliament has until 3 December 2025 to rectify the defect in the legislation.

A read-in remedy is provided in respect of section 31B(3) - the read-in is effective immediately and will continue after 3 December 2025, unless Parliament amends the section.

Consequence of Constitutional Court’s order in OSA judgement:

The Constitutional Court’s order was limited to the facts before it, and thus only dealt with independent candidates. Accordingly, the Constitutional Court did not make a similar order in respect of section 27(2)(cB) of the Electoral Act, which provides a similar requirement for unrepresented political parties. This has now resulted in a situation where independent candidates are required to provide 1000 signatures per region, but unrepresented political parties must provide 15% of the quota for each region in the preceding election.

When considering Constitutional Court judgements finding legislation invalid, the CLSO advise that the Committee consults the Executive and ascertain the policy position to deal with the read-in and the disparity created by the read-in, in respect of unrepresented political parties.

(See presentation for details)

Briefing by the IEC on the implications of the Constitutional Court judgement

Mr Masego Sheburi, Deputy Chief Electoral Officer (CEO): Electoral Operations, IEC, said that Ms Halley-Starkey had adequately dealt with the background and the legal implications of the Constitutional Court judgement. For this reason, he will provide some context to unpack the implications that might arise following the Constitutional Court’s order.

Implications of judgements:

• The 200/200 split of the 400 seats in the National Assembly is confirmed.

• The 15% signature requirements is struck down and replaced by a read-in of 1000 signatures in respect of independent candidates (section 31B(3) Electoral Act).

• While section 27(2)(cB) Electoral Act contains a similar requirement for unrepresented parties, the Constitutional Court has not invalidated it nor struck it down. Principally, because the challenge to that section was not properly before the Court and no submissions were made to the Court in relation thereto.

Implications for candidate nomination:

• An independent candidate must obtain and submit 1000 signatures for each region they stand in.

• The signatures may be obtained from voters registered in other regions and are not confined to the region being contested by the independent candidate.

• An independent candidate may not be nominated to contest more than one region with only 1000 signatures. The provision says that a candidate must obtain 1000 signatures for each region in which the candidate intends to contest an election.

• An unrepresented party must still meet the 15% signature requirement in the Act.

IEC’s concluding remarks:

• The signature capture portal to facilitate the recording of details of voters supporting the candidature of independent candidates and unrepresented parties was developed on the basis of 15% signature requirement.

Following the judgement of the Court, work has commenced to adjust the system to accord with the requirements determined by the Court in respect of the nomination of independent candidates.

• The costs of administering elections are projected to increase relative to the increase in number of contestants. Likewise, the increase in the number of contestants will have a corresponding impact on the increased cost for additional ballot boxes, possible additional staff to deal with the increased volumes and complexities at voting stations, and increased logistics costs based on additional volumes.

• The design elements of the ballot paper used hitherto, will change. Ballots will be set in more than one column and possibly in multi-page booklets.

• There is an imminent court application/s challenging the rationality and constitutionality of the requirement for unrepresented parties to meet the 15% signature requirement in light of the read-in remedy for independent candidates.

(See presentation for details)

Mr Sy Mamabolo, CEO, IEC, said that the nature of the majority judgement penned by Kollapen J has led to a situation where there is imminent consequent litigation. In particular, Rivonia Circle and Build One South Africa (BOSA) have placed the IEC on terms, that by the end of today, it must confirm whether it can draft a right-in similar to section 31 of the Electoral Act, as it relates to independent candidates. He explained that the IEC is unable to give such a guarantee because the IEC is not a law-making institution. The IEC will respond accordingly, but it is clear that there is going to be subsequent litigation with respect to the signature requirement for unrepresented parties.

Judge Dhaya Pillay, Commissioner, IEC, concurred with her colleagues. She emphasised there will be escalating costs and time costs due to the current and subsequent litigation.

Discussion

The Chairperson asked if the Director-General wanted to comment before the Members raised questions, particularly on the matters raised by the Parliamentary Legal Advisor regarding the policy position to deal with the read-in.

Mr Tommy Makhode, Director-General, Department of Home Affairs (DHA), said that the DHA had taken note of what the CLSO had advised, as well as the IEC’s presentation. The DHA had been requested to brief the Portfolio Committee on Home Affairs and the Select Committee on Security and Justice on the Electoral Matters Amendment Bill. The DHA will use that opportunity to respond to some of the issues.

Adv B Bongo (ANC) thanked the presenters for the well-prepared presentations. He was also thankful for the Constitutional Court, as it handed down an important judgement in respect of the upcoming elections. He believed that the judgement was in order. It seemed that the IEC was prepared for the elections, considering its interpretation of the judgement.

He said that the Committee may have to request permission from Parliament to accede to the advice from the CLSO. The Committee must approach the Executive to check on the state of preparedness in terms of the policy position to deal with the disparity created by the read-in, with respect to unrepresented political parties. The Committee should deal with this without delay.

Mr A Roos (DA) raised concern that for some reason he had received the presentations and the link to the meeting at the last minute before the meeting, which makes it extremely difficult to perform parliamentary oversight. The Committee usually receives the agenda and the attached documents well ahead of time.

He was pleased that the disparity was identified and mentioned. He referred to the provision which says that a candidate must obtain 1000 signatures for each region. He asked for clarity on whether an independent candidate could use the same 1000 signatures to contest in different regions.

He referred to the wording in the read-in remedy in respect of section 31B(3) of the Electoral Act. He asked what was meant by the “prescribed form”. He recalled that the Committee had pointed out that there is going to be a burden on the IEC to verify the list of signatures that the independent candidates are required to submit. The Committee agreed that there should not be an unnecessary burden on the IEC to try and verify these documents, especially if it is in written submissions or faxed copies.

He noted that the read-in remedy where independent candidates are required to provide 1000 signatures per region was an interim measure. He questioned how the 7th Parliament would deal with this because this Committee had considered the various signature thresholds that had been presented to it by the IEC and ended up on the lowest threshold.

He was concerned that the Committee did not have enough time left to extend the scope of the Bill to address the disparity through the Electoral Matters Amendment Bill before the 2024 elections, because this would bring in new complications to the legislative process. The Committee has a tight deadline to conclude the Bill by 28 February 2024, bearing in mind that the regulations still need to be amended and finalised.

He believed that the read-in judgement was for the persons who felt aggrieved, but the unrepresented parties did not contest this. So it indicates that the unrepresented parties are happy with the 15% signature requirement. He stressed that this Committee had received heavy criticism for delaying this legislative process, but most of the time it was on the side of the Executive. The Committee had agreed that the 15% signature requirement was reasonable, but the Constitutional Court heard the concerns of the relevant stakeholders who believed it was unfair and they provided a read-in judgement as a remedy.

He requested that the Committee should maintain a list of Constitutional Court judgements, such as the recent ruling in the case of Rayment and Others v Minister of Home Affairs and Others; Anderson and Others v Minister of Home Affairs and Others, as part of its legacy report that it will hand over to the 7th Parliament for follow-up.

Mr T Mogale (EFF) reiterated the question that Mr Roos had raised, on whether an independent candidate could use the same 1000 signatures to contest in different regions. He said that the Constitutional Court ruling had lowered the signature threshold that the Committee had agreed upon for independent candidates to contest an election. The Committee’s decision was cautious about avoiding a bloated ballot paper. He believed that anyone could obtain the 1000 signatures that independent candidates are now required to obtain, so there would very likely be a bloated ballot paper. It is likely that the ballot paper will be in the form of a booklet, which is unfair to the voters. He stressed that there should be very stringent verification of the signatures submitted. If independent candidates are found to submit false signatures of voters, then they must be disqualified from participating in the upcoming elections. The verification process should weed out all the “unnecessary chance takers”.

He believed that the 15% signature requirement for unrepresented political parties should remain, but if the unrepresented political parties wanted to take this matter to court to address the disparity, then they should go ahead.

Ms M Molekwa (ANC) appreciated the presentations. She commended the IEC for the work that it has done to adjust with the Constitutional Court’s order. She believed that the IEC should continue reviewing and adjusting the educational material content, so that people can be aware of the implications of the Court judgement and be prepared for election day.

She said that DHA must “chip in” to assist the IEC with the increased costs of administering elections. She noted that the increase in the number of contestants will have a corresponding impact on the increased volumes and complexities at voting stations. Voters will spend a longer amount of time at the ballot boxes. She asked if the IEC would review the opening times at voting stations for election day, and whether there were measures in place to avoid foreseeable hazards on election day.

Ms A Khanyile (DA) said that most of her comments had been covered by Mr Roos. She asked the IEC for an indication of how many new political parties and independent candidates have registered to contest elections. She asked about the closing date to register as a political party or independent candidate to contest in the upcoming elections.

Ms T Legwase (ANC) asked if the IEC would oversee the process of the signature requirement to ensure that the individuals who want to contest as independent candidates have properly obtained the 1000 signatures. She reiterated Ms Khanyile’s question about the closing date to register as a political party or independent candidate to contest in the upcoming elections.

Mr Y Tetyana (EFF) concurred with Mr Mogale, that the IEC must ensure stringent verification of the signatures submitted, because there is a chance of manipulation. He said that the IEC will play a critical role in this respect.

He agreed that the 15% signature requirement should remain for unrepresented political parties, because this has not been challenged.

Mr K Pillay (ANC) expressed gratitude to everyone who had sent him messages of condolences. He concurred with Mr Roos on the issue of the Committee’s administration, because it has been more than one occasion that the Committee had serious administrative challenges. There are so many outstanding matters that the Committee could have attended to. It was disappointing that the Members had to continually raise concerns about the administration.

He welcomed the two presentations. He said that while he respected the Constitutional Court’s ruling, it is rather disappointing that the lengthy process of deliberations and public consultations in respect of the signature requirement has been overlooked. However, the Committee must accept this and move forward. The Committee will have to deliberate on the disparity between independent candidates and unrepresented political parties.

He concurred with Ms Molekwa, that the increase in the number of contestants will have a corresponding impact on the increased volumes and complexities at voting stations. He questioned whether the IEC would be able to conduct elections in one day. He assumed that this would be an administrative nightmare.

He asked how the IEC would determine if a voter’s signature had supported more than one independent candidate. He asked about the legal ramifications of this. He believed that it would be important for the Committee to deliberate on this, to fine-tune a more stringent verification process.

Ms A Ramolobeng (ANC) said that her colleagues had already reiterated some of the points that she wanted to raise, such as the readiness of the IEC to deal with the verification process of signatures. It is important for the IEC to brief the Committee on the measures that it has in place to ensure that there are no questionable signatures.

She was also curious about whether the IEC would be able to conduct elections in one day, considering that the increase in the number of contestants would mean that it would take a longer time for each person to cast their vote. It will take longer for the voters to locate a candidate or party of their choice on the ballot paper.

The Chairperson sought clarity on the issues that the Parliamentary Legal Services and IEC had raised so that Members are able to deliberate and formulate a position. He noted IEC Commissioner Judge Pillay’s comment about the cost implications of the Court judgement and subsequent litigation. He also took note of Mr Mamabolo’s indication that there is going to be subsequent litigation in respect of the signature requirement for unrepresented parties. This will ultimately affect the administrative role of the IEC in preparing for the 2024 elections. The Members have raised critical questions that will assist the Committee in moving forward.

Ms Halley-Starkey said that a lot of the questions that the Members have raised were related to the implementation of the Electoral Act. She referred to Mr Roos’s question about the 1000 signatures, she replied that it was best for the IEC to provide a purposeful interpretation of the read-in provision provided by the Constitution, because the IEC are the implementers.

Mr Mosotho Moepya, Chairperson, IEC, said that he wanted to make three brief comments. He noted the issue about the consequential amendments raised by Mr Roos. He believed that Mr Roos’s warning about the time constraints was worth serious consideration, but the IEC would need to understand the terrain in which it is operating.

He told the Committee that he heard and understood their concerns with respect to the verification of the 1000 signatures. He urged the Members to be very careful about legislating through regulations. There was already a situation where the regulations have been challenged because they went way beyond what the legislation says. The question of ensuring that the 1000 signatures are valid, is a matter for careful consideration.

He appreciated that the Members shared the same worry as the IEC about the implications of the Court judgement, especially in terms of the design of the ballot paper, the candidature, the increased volumes and complexities at voting stations, while also considering that this should not disenfranchise candidates that would have otherwise won an election. The IEC will retreat and look into the complexity of the work that it is legislated to do. There are certain things that the IEC are empowered to do in law, such as extending the voting hours, but there are other things that the IEC cannot do. The Electoral Act does not define election day, but it is defined in the Local Government: Municipal Electoral Act. He confirmed that election day is one day, not several days, which might be an issue that the IEC would have to consider when it deals with the complexity of the upcoming elections.

Mr Sheburi referred to the question of whether a candidate can be nominated using one set of a thousand signatures across more than one region. He said that the answer is no because the read-in provision requires that the candidate must be supported by at least 1000 signatures for each region in which the candidate intends to contest an election. The IEC is revising its system to pick up on duplicates of identity (ID) numbers. This will avoid a situation where a candidate has only obtained 1000 signatures nationally, and they use this to contest in nine regions.

On the questions about how the signatures are harvested and whether they belong to the voters who support the candidate, he replied that the IEC does not intend to assume administrative responsibility for the signature harvest. The independent candidate has the obligation in the form that will be prescribed in the regulations to collect signatures, including the details of the owners of those signatures. The IEC has built a portal that is being updated and aligned to the Constitutional Court order. Independent of the IEC, the independent candidate or party will capture the ID numbers of the people who support their nomination. They will retain a file of signatures of the voters who support their candidature. On short notice, the IEC can call for those signatures, to check if there is anything untoward.

In brief terms, the system is built as follows: a candidate or party creates a profile, and the IEC gives them authorisation. The candidate or party captures the ID numbers of the people who support their nomination. The system verifies how many of those people are registered as voters, or if there are duplicates that had been entered into the system that had already been accounted for in another region. The IEC may also do spot checks and ask for hard copies of the signatures, but the responsibility rests with the candidates and parties to ensure that they keep the hard copies of the signatures.

On the questions about the registration of political parties, he replied that the IEC is the registrar of political parties. The entity that wishes to register as a party must meet the scheme in the Electoral Commission Act. For instance, the party must submit its constitution, it must publish its identifiers that must not be too similar to the identifiers of a registered party to an extent that it may cause confusion, the party must also submit a deed of foundation indicating that at least 1000 persons support the formation of the party at the national registration. The existence of a party affords a party certain protections, but it is not automatic. Once a party is registered, it does not automatically mean that its name will appear on the ballot paper. For that to happen, the party must meet the requirements for contesting. Those requirements will be set out in the election timetable as soon as the election date is made known. On the questions about the cut-off date, he explained that there is no opening for candidate nomination, but there is a closure date for candidate nomination. On that date, at 17h00 in the afternoon, a party must have submitted their list of candidates and paid a deposit, and they must confirm that their candidates are not prohibited from standing for elections in terms of the Constitution. If the party meets those requirements, then its name will appear on the ballot paper.

There are over 578 unique parties registered in South Africa, about 360 of these parties are registered to contest the national and provincial election, but those parties must still meet the requirements to contest for their names to appear on the ballot paper.

The scheme for independent candidates is different. An independent candidate does not have to register or apply upfront. All that the independent candidate is required to do is to meet the requirement on the date of the closure for candidate nomination, such as the payment of the deposit, confirmation that they have submitted 1000 signatures for a region in which they wish to contest, and confirmation that they are not disqualified from standing for public office in terms of the Constitution. If an independent candidate meets those requirements, then their name will appear on the ballot paper.

Mr Sheburi explained that party registration is continuous, so there is no cut-off time by which the IEC no longer accepts applications for the formation of parties. However, the broad guideline is that a party must have been registered by the date of closure for candidate nomination and submit the required documents before 17h00 to stand in the elections.

Regarding the signatures of supporters/voters, he clarified that there is no requirement in law that restricts a voter to nominate or support only a single party or a single candidate. It is possible that a voter can nominate party “x” and still sign support for independent candidate “y”.

Mr Moepya wanted to correct the comment he had made earlier. He clarified that the Electoral Act has also been amended to define election/voting day. Election day is held on one day.

Mr Moepya said that he was grateful for the opportunity to deal with these issues. The IEC will do its best do deal with the complications and rely on the Committee to help navigate the way forward.

Adv Charmaine van der Merwe, Senior Parliamentary Legal Advisor, CLSO, thanked the Members for listening to the presentation. She said that the CLSO look forward to hearing further feedback from the DHA on its policy position next week.

The Chairperson thanked the officials for their responses to the questions and comments that were raised. The Committee will have further engagements with the DHA next week, as the Director-General had indicated that the DHA would present its response to the Constitutional Court judgement when it briefs the Committee on the Electoral Matters Amendment Bill.

He noted Mr Roos and Mr Pillay’s concern about the Committee’s administrative issues. The Committee will deal with this separately.

He had also taken note of Adv Bongo’s suggestion that the Committee may have to request permission from Parliament to accede to the advice from the CLSO because the Committee are dealing with matters that are focused on the elections, but it will also assist the IEC.

Electoral Matters Amendment Bill Processing

He said that on Tuesday, 12 December 2023, the Committee will have a joint meeting with the Select Committee on Security and Justice to receive a detailed briefing on the Electoral Matters Amendment Bill. The Committee will take advantage of that opportunity to liaise on the way forward, following the Constitutional Court judgement.

Mr Mathonsi said that he had taken note of the Director-General's indication that the DHA would still respond to the outcome of the Constitutional Court judgement. He informed the Committee that he had already drafted an advert to call for written comments on the Electoral Matters Amendment Bill, but he wanted the advert to be translated into the other official languages, bearing in mind that Parliament closes on Thursday, 14 December 2023. The advert might not be translated into the other official languages in time, especially if staff had taken leave. He wanted to ensure that the advert was published on Parliament’s website before 14 December.

He referred to the Members' concerns about the Committee’s administrative issues. He explained that Parliament had experienced Information Technology (IT) issues with its email, which was supposed to be resolved by 12:30pm yesterday afternoon. The meeting link was sent via email to all Members and officials on 6 December 2023, and all relevant documents were sent the following day. He assured the Members that it was not intentional that some Members and officials had not received the meeting link, because the meeting links are sent to everyone in the group.

The Chairperson said that the Committee must publish the advert to call for written comments on the Electoral Matters Amendment Bill after it had been briefed by the DHA. The Committee should work within the rules that guide the legislative process.

He thanked the officials for the presentations that responded to the Constitutional Court judgement. He said that the Committee will have further deliberations once it is briefed by the DHA.

The meeting was adjourned.