By Lizeka Tandwa and Jan Gerber
First published on News24

Following the Constitutional Court ruling on Thursday, Parliament could adopt the local government system in provincial and national elections, political analysts and a constitutional law expert predict.

The landmark judgment, delivered by Justice Mbuyiseli Madlanga, will see independent candidates competing in the elections, even without the backing of a political party. In reading the historical judgment, Justice Madlanga said proportionality does not equal exclusive party proportional representation.

The apex court found the Electoral Act unconstitutional to the extent that it requires adult citizens to be elected to the National Assembly and Provincial Legislatures only through membership of political parties.

The court ordered Parliament to amend the Electoral Act within 24 months.

What does this mean, practically?

News24 spoke to three experts, who explained in layman’s terms the impact, if at all, the Constitutional Court ruling will have on the current political landscape.

Constitutional law expert Professor Pierre de Vos explained that the current South African model has a pure proportional representation system – in other words, you vote for the party’s electoral list to go to Parliament.

This is not to say the list process will be abolished; simply put, De Vos says it will be amended to allow for individual candidates to stand for provincial and national office.

“One way of doing that would be to take the system we have at local government and to apply that nationally and provincially as well, but we don’t know how that is going to happen.”

De Vos, however, adds that this will not make much of a difference to our current electoral system. “Parties will remain powerful. It will be difficult for anybody to be elected to Parliament if they are not in a political party.”

University of Johannesburg politics professor Mcebisi Ndletyana said the judgment has the potential of bringing on board eligible voters, who have not been voting in the previous elections, because they are “repulsed” by our current offering of parties.

“When you look at the last elections, the ANC had all sorts of inglorious candidates. It had its own logic which was insensitive to the public. The logic was that ‘these are party leaders, if you say unity then you must include even the tainted ones’.

‘That is what they prioritised. There was no compulsion to make sure you had the best. This will give parties the push they need to jack up and provide South Africa with a better offering.”

In the judgment, Justice Madlanga said the Constitution deliberately did not make proportional representation, including party proportional representation, a founding value.

“If it had made party proportional representation a founding value, we would not be having this interpretative debate,” the judgment read.

Ndletyana said if Parliament were to follow the local government model, this could mean dual ballots, with one representing a constituency as well as a PR ballot.

In local government, an independent candidate can run for municipal wards. The result has led to some independents gaining political capital, parachuting themselves into positions of power.

“It also means that parliamentary representation will be divided into two – 200 constituency and 200 PR. It’s a replication perhaps of what you already have at the local government level being transferred to provincial legislature and Parliament,” Ndletyana explains.

Justice Madlanga pointed out that the respondents argued that it was inexpensive and not difficult to form a political party. “The subtext was that, if the applicants are unwilling to join existing political parties, they have no reason not to form political parties of their own.”

The respondents were the office of the president, the minister of home affairs, the electoral commission, the national assembly speaker and the national council of provinces (NCOP).

Professor Joleen Steyn-Kotze, of the Human Sciences Research Council, said independent candidates will find it difficult to compete with the well-established political parties.

“We really do need to consider some of the practical implications of the independent candidates – will they be able to generate the same level of funding for campaigning as political parties, and the length of the ballot paper.”

“What will be interesting to see is the strategies Parliament uses to try and implement the court judgment to ensure a full spectrum of representation. We already operate on a multi-member constituency – are we going to change our constituency? Are we going to change our electoral system in terms of the principle of proportional representation? It will be interesting to see how one practically implements the ruling,” she said.

All eyes on Parliament

Shortly after Justice Madlanga handed down judgment on Thursday, parliamentary spokesperson Moloto Mothapo issued a statement: “Parliament had filed a notice to abide by the court’s decision, together with an explanatory memorandum. The explanatory memorandum addressed, among others, the time required for processing legislation, if amendments to the existing Electoral Act were required, and requested the court’s consideration in this regard.”

The Constitutional Court has given Parliament 24 months in which to pass the required legislation, following its finding that the Electoral Act is unconstitutional because it does not allow individual candidates to run for political office.

“Parliament respects the judgment of the Constitutional Court, and will study its practical implications in relation to its obligations on the Legislature,” said Mothapo.

What happens next?

It is not unusual for Parliament to amend legislation based on a Constitutional Court ruling.

Just last week, President Cyril Ramaphosa assented to the Independent Police Investigative Directorate (Ipid) Amendment Bill.

The amendment was necessitated by a Constitutional Court ruling that declared some sections of the Ipid Act as inconsistent with the Constitution and invalid to the extent that they authorise the minister of police to suspend, and take any disciplinary steps pursuant to suspend or remove from office, the executive director of Ipid.

It is expected that Speaker Thandi Modise will refer the matter to a portfolio committee, who will draft an amendment through the normal legislative process, which would involve a public participation process.

The National Assembly must then pass the amendment bill, after which it will be sent to the NCOP. If it passes there, it will be sent to the president for enactment.

Ready to help Parliament

The Electoral Commission of South Africa (IEC) welcomed the ruling and the clarity it brings.

The IEC’s Sy Mamabolo said they are ready to help Parliament in providing technical assistance, as well as comment on the practicalities of the new electoral system. “We will also help in an advisory capacity.”

IEC chairperson Glen Mashinini said: “We will study the judgment in detail to reflect on its full implications for the current electoral system and legislative framework governing national and provincial elections.”

The IEC said the timing of this judgment, and the Parliamentary review of the electoral system it prompts, is opportune, given both the maturing of South Africa’s democracy and the looming impact of the Covid-19 pandemic on election processes around the world.