The Concourt case that changes how candidates may stand for election in national and provincial elections 

In July 2019, OUTA applied to the Constitutional Court for permission to join a case calling for electoral reform. OUTA applied to be an amicus curiae (a friend of the court) in the matter; this application was granted. On 11 June 2020, the Concourt ruled that sections of the Electoral Act were unconstitutional and overturned them. The declaration of invalidity was suspended for two years, to give Parliament time to rewrite this law, to allow independent candidates to stand for election. 

The case (CCT110/19) was brought by the New Nation Movement NPC and others against the President and others. It revolved around whether the Electoral Act is unconstitutional because it prevents independent candidates from standing in a national or provincial election.

OUTA is not associated with and holds no brief for the original applicants, but regarded this case as a matter worthy of intervention due to the public importance of electoral reform for holding politicians to account. OUTA wants the law to be amended to allow individuals to stand as independent candidates in national and provincial elections, rather than the current system which allows only party candidates.

Independent candidates are more answerable to their voters as they face a real likelihood of being voted out if they fail to honour election promises. A system which allows for independent candidates will help mitigate the threats to accountability of the party list system.

Although the Concourt gave Parliament two years to fix the law, the Minister of Home Affairs and Parliament delayed this matter, and the Bill which is now under consideration was tabled in Parliament only in January 2022, a full 19 months after the Concourt judgment and leaving only five months to pass it.

Reforming the law: Avoiding real change and running late

In February 2021, OUTA made a submission on the Electoral Amendment Bill to Parliament's Portfolio Committee on Home Affairs, which was strongly critical of the Bill. In this submission, OUTA pointed out that the Concourt had given Parliament until June 2022 to update the law, which left Parliament with just four months to engage with the public on the bill. "OUTA observes with dismay the explicit reference to reduce public participation such that deadlines can be met," said OUTA's submission, pointing to a parliamentary document which says public hearings in all nine provinces are "discouraged" to prevent further delay. Parliament's delay had caused the process to be rushed.

OUTA was concerned that the public participation process limited the discussions to the Electoral Amendment Bill, as the committee had abandoned the alternative Electoral Laws Second Amendment Bill. This effectively disabled critical public deliberation on a variety of options. See OUTA's comments on this here.

OUTA also raised several significant problems with the Bill itself. For example: "Independents are expected to jump over mathematical quota calculations only to retain a single seat, even if they receive a majority portion of the total votes," said OUTA.

By late April, Parliament was so far behind on amending the law that it applied to the Concourt for a six-month extension.

OUTA would like to see the Bill reassessed and rewritten, to be more in line with the spirt of the Concourt judgment. If this extension is granted, we hope the time will be used to do this, using more visible and meaningful public participation opportunities.

OUTA is monitoring this process.

Timeline and documents

15 August 2019: The Concourt hears the case challenging the Electoral Act. The Concourt pre-hearing summary of this case is here.

11 June 2020: The Concourt ruled sections of the Electoral Act unconstitutional, but suspends this order for two years. The Concourt judgment is here.

4 December 2020: The Electoral Laws Second Amendment Bill [B34-2020], a Private Member bill, was tabled by Cope MP Mosiuoa Lekota. This Bill is here.

June 2021: A Ministerial Advisory Committee (MAC) established by Minister of Home Affairs Aaron Motsoaledi to explore the options and listen to stakeholders submitted its report.

24 November 2021: Cabinet approved the submission of the MAC report to Parliament. The Minister's letter referring the report to Parliament and the full MAC report is here.

31 December 2021: The Electoral Amendment Bill was gazetted for comment. The gazette is here.

10 January 2022: The Electoral Amendment Bill [B1-2022] was introduced to Parliament and made available for public comment. A copy of the Bill and its progress, tracked by the Parliamentary Monitoring Group, can be found here.

15 February 2022: Parliament's Portfolio Committee on Home Affairs resolved to recommend that Parliament apply to the Concourt for an extension of the deadline.

21 February 2022: OUTA made a submission to the Portfolio Committee on Home Affairs on the Bill. Other civil society organisations and interested parties also made submissions. More on this is here and OUTA's submission is here.

23 February 2022: The Portfolio Committee decided it would not proceed with Lekota's Bill, the Electoral Laws Second Amendment Bill. The committee's reasons included that this Bill proposes broad, wide-ranging and substantive changes that could not be passed and implemented before the 2024 provincial and national elections (the timing of elections is set by the Constitution).

1 March 2022: OUTA made a presentation to the Portfolio Committee on our submission on the Bill.

7-13 March 2022: Parliament held public hearings, which focussed only on the Electoral Amendment Bill as the committee had decided to abandon the Electoral Laws Second Amendment Bill. This effectively disabled critical public deliberation.

11 April 2022: OUTA, the One South Africa Movement and other civil society organisations wrote to Parliament to complain that the public participation process on the Electoral Amendment Bill was flawed and did not meet constitutional standards. See OUTA's comments here.

13 April 2022: OUTA hosts a webinar on electoral reform, with panelists Michael Lous, Ebrahim Fakir, Zarina Prasadh, Mudzuli Rakhivane and Valli Moosa, aiming to promote awareness of the Bill and the issues around electoral reform. A recording of this webinar is here.

26 April 2022: The Presiding Officers of Parliament announce that they have applied to the Concourt for a six-month extension to the deadline of invalidity. The founding affidavit is here.

8 June 2022: OUTA Electoral Reform Info Sheet is here.

15 September 2022: OUTA submitted comment to the Portfolio Committee on Home Affairs, as part of the second round of comment. This submission is here.

16 September 2022: OUTA joins the Independent Candidate Association and other civil society organisations in a protest outside Parliament, to deliver a petition signed by 56 organisations rejecting the Electoral Amendment Bill and demanding electoral reform. The petition is here.

28 September 2022: OUTA repeats comments that the Electoral Amendment Bill needs a complete rewrite. See here.

19 October 2022: OUTA joins other civil society organisations calling on MPs in the National Assembly not to pass the flawed Electoral Amendment Bill. See joint statement here. 

20 October 2022: The National Assembly adopts the Electoral Amendment Bill, despite civil society opposition. OUTA criticises the National Assembly's decision. See here.

2 November 2022: Civil society organisations including OUTA hold a public meeting on the Electoral Amendment Bill in the Groote Kerk church in Cape Town. Speakers included OUTA's Rachel Fischer and Mudzuli Rakhivane from Independent Candidates Association (ICA). See here.

9 November 2022: The Electoral Amendment Bill has moved to the National Council of Provinces (NCOP), and OUTA submits comment opposing the bill to the NCOP's Select Committee on Security and Justice. This submission is here and the joint civil society statement released the same day, criticising the bill, is here.

14 November 2022: OUTA publishes its Research report: Electoral Reform by Dr Sithembile Mbete. The report is here.

25 November 2022: The NCOP's Select Committee on Security and Justice agrees to the Electoral Amendment Bill with proposed amendments. See here.

29 November 2022: The NCOP passes the Electoral Amendment Bill with amendments and returns it to the National Assembly (referred to the NA's Portfolio Committee on Home Affairs) for concurrence. See here.

30 November 2022: OUTA holds a webinar on electoral reform. See here.

10 December 2022: Parliament's extended deadline, set by the Concourt, for processing the Electoral Amendment Bill. On 6 December, Parliament applied for a second extension and on 9 December the Concourt granted an extension to 30 January 2023. See here.

23 January 2023: The Concourt grants Parliament's request to further extend the deadline for finalising the Electoral Amendment Bill, extending this to 28 February 2023. See here.

27 January 2023: OUTA submits comment criticising the Electoral Amendment Bill to the Portfolio Committee on Home Affairs, following the NCOP update to the bill. OUTA's submission calls for a clearly constituted Electoral Reform Consultation Panel which includes civil society and with predetermined deadlines and deliverables, for greater fairness for independent candidates, for the votes of all citizens to count, and warns that if the bill fails to meet constitutional standards it may be legally challenged. The submission is here.

23 February 2023: The National Assembly passes the Electoral Amendment Bill and sends it to the President for signature. See here.

13 April 2023: The President assents to the Electoral Amendment Bill.

17 April 2023: The Electoral Amendment Act was gazetted, following the President's assent. The Act is here, the Presidency statement on it is here and OUTA's reaction is here.

19 June 2023: The date the Electoral Amendment Act took effect. See the proclamation here.

25 August 2023: OUTA CEO Wayne Duvenage says the upcoming Concourt cases provide a last-minute opportunity for the urgently needed electoral reform to ensure meaningful inclusion of independent candidates in the 2024 election. This opinion was published on News24; see here.

29 August 2023: The Concourt hears argument in two urgent applications challenging how independent candidates are dealt with by the Electoral Amendment Act. The cases were brought by the Independent Candidate Association NPC against the President and others (CCT144/23) and One Movement South Africa NPC against the President and others (CCT158/23). Judgment was reserved. The case details are here.

19 October 2023: Deadline for Minister of Home Affairs to establish the Electoral Reform Consultation Panel (the Electoral Amendment Act, which came into effect on 19 June, gives the Minister four months to set up the panel). The minister missed the deadline and, on 3 November 2023, OUTA released a statement raising concern over this (see here).

8 November 2023: OUTA submitted a letter of concern over the missed deadline to Minister Motsoaledi, the Chairperson of the Portfolio Committee on Home Affairs Mosa Chabane, and the PC secretary Eddy Mathonsi (see the letter here). Mathonsi responded on 13 November indicating the Minister has been invited to brief the PC on the matter on 21 November 2023.

1 December 2023: Names were put forward to the portfolio committee at its meeting on 1 December 2023 (see here), but the committee resolved that the nomination process must be reopened (see here). Issues raised include concerns about gender and age. OUTA has been monitoring the meetings and until the most recent meeting on 4 December, before parliament's year-end recess, the panel has not been successfully established.

4 December 2023: The Concourt handed down judgment in the two urgent applications challenging how independent candidates are dealt with by the Electoral Amendment Act. The court upheld only the One Movement SA challenge of the 15% signature requirement for independent candidates and new political parties to contest the general elections next year: independents now require only 1000 signatures. The Independent Candidate Association’s challenges were dismissed. (See DM article here for a good summary).

• The Independent Candidate Association v the President and others (CCT144/23): see judgment and media summary here.  

• One Movement SA v the President and others (CCT158/23): see judgment and media summary here.

 

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