By: Sheilan Clarke & Letlhogonolo Letshele 

Soon amendments to the Electoral Act will finally be made to include provisions allowing independent candidates to run in provincial and national elections. Judging by how well independents have fared in this year’s local government elections, it is clear that South African voters are ready for this amendment.  

Electoral Act ruled unconstitutional 

On 7 December 2021, Parliament’s Portfolio Committee of Home Affairs were presented with a report by the Ministerial Advisory Committee (MAC) on the Electoral Systems after Cabinet approved it on 25 November 2021.  

The MAC on the Electoral Systems was formed in February 2021 by the Minister of Home Affairs to advise the Minister and the Portfolio Committee on Home Affairs on how to amend the Electoral Act. This comes after the Constitutional Court ruled in June 2020 that the Electoral Act is unconstitutional to the extent that it prevents adult citizens from standing for, and being elected to, the National Assembly and Provincial Legislatures as independent candidates. The Court ordered Parliament to remedy the defects in the Electoral Act to allow for adult citizens to contest national and provincial elections as independent candidates. Parliament was given 24 months (from the day of the ruling) to amend the electoral legislation. Electoral reform has been on the agenda for many years but without any implementation. This move therefore provides an opportunity to finally make an effort towards electoral reform in South Africa. 

The proposed amendments 

After Cabinet deliberated the MAC’s report, they decided to go with an option that suggests that provinces be viewed as large constituencies in which either a party or an individual could stand for an election. It recommended that 200 seats be elected according to the proportional representation system and the other 200 seats according to a constituency-based system.   

Independent candidates and political parties will therefore be proposed to contest 200 seats in order to get to parliament. In this system, provinces will be regarded as constituencies. There will be a quota used to determine how independent candidates and political parties make it into parliament. The system has 3 rounds and independent candidates will be given a head start. However, there is a potential of wasted votes. The proposal also added some criteria that independent candidates are required to meet like be a resident of the contested constituency, have proven voter support and pay the deposit to the IEC.  

Support for alternative politics seems to be growing  

Independent candidates have only been allowed to partake in local government elections. But even so, they have largely been out supported by political parties who run bigger campaigns and have access to more resources. However, this year’s local elections not only saw a dismal performance by top political parties at the polls, but the support of independents and community-based organisations has grown significantly with them winning 51 seats in municipalities across the country compared to only 27 seats in 2016.  

There are many factors that could be attributed to this shift in the way people vote. Firstly, we have to acknowledge the pandemic and the severe ramifications it still has on communities. Then there is the crippling local government system in South Africa. Many communities like that of Bonteheuwel have had to fix their own potholes as they have lost faith in the local municipality. In Makana it had gotten to the point of taking the municipality to court for a failure to deliver basic services.  

Communities are now starting to take back the power.  

Smaller parties also saw a growth in support increasing by 5.48% with the number of seats increasing to 619 compared to 195 in 2016. The ANC lost control of several municipalities and its support fell below 50% — a first since 1994. The ruling party will have to form coalitions to run municipalities. Many believe that the ANC may need a coalition to form a government in 2024.  

The rise of independent candidates and smaller parties signals that South Africans are ready for an alternative.  

Will we have the new amendments in time for 2024?  

With electoral reform finally coming to fruition, there are some concerns on the timing. The Court made its ruling in June 2020 and ordered Parliament to take 24 months to make these amendments. The 24-month deadline thus ends in June 2022 — almost 6 months away. Can Parliament make such a momentous change to our electoral system in only 6 months?  

The outcome of electoral reform has implications for the 2024 general elections and how independent candidates will be able to contest national and provincial elections. However, there is a chance that Parliament might ask for an extension and this means that the system might not be ready by the next national and provincial elections scheduled for 2024.  

The Constitutional Court’s judgement provided South Africa with an opportunity to change the electoral system. While electoral reform does not guarantee accountability, it is one of the routes and partial solutions to ensuring greater accountability and inclusivity and it is certainly one legislative change that we should all keep a close eye on.