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Court had no other option but to grant another extension on electoral bill

The Organisation Undoing Tax Abuse (OUTA) says it takes note of the extension of the deadline for amendments to the Electoral Amendment Bill that was granted to Parliament on Friday 20 January by the Constitutional Court.  Parliament requested the extension on 6 December, four days before the extended deadline for amendments. 

Parliament had twice failed to meet a Concourt-imposed deadline for amending the Electoral Act. The bill seeks to make provisions for independent candidates to participate in national and provincial elections, and stems from the Constitutional Court’s ruling in June 2020 that the Electoral Act was constitutionally invalid insofar as it makes it impossible for candidates to stand for political office without being members of political parties. Parliament was given until 10 June 2022 to rectify the constitutional defects in the act, but failed to do so.

OUTA was a friend of the court in this matter, brought by the New Nation Movement and a group of independent candidates, since it supports amendments to the current electoral system that strengthens the voters’ ability to hold politicians to account. “We also support calls for independent candidates to participate in elections,” says Rachel Fischer, OUTA’s Parliamentary Engagement and Research Manager. 

Fischer says OUTA accepts this second deadline extension as a matter of necessity. “Concourt had no other option since Parliament forced their hand in December. But it must be noted that this whole absurd situation and the two deadline extensions could have been avoided had Parliament prioritised its duties to ensure broad electoral reform by June 2022, as per the Constitutional Court’s original instruction. As so often happens in South Africa, a golden opportunity for reform has been lost through political interference. Now we find ourselves at an impasse that is casting a shadow over the 2024 national elections.”

Previously, OUTA objected to what it called “MPs' last minute rush” to push the bill through, saying that it torpedoed public participation. “Parliament’s initial public hearings on the bill were more of a public relations exercise than responsible action in the public interest,” says Advocate Stefanie Fick, Executive Director of OUTA's Accountability Division. A big concern was that the public were not given two bills to comment on. Instead, the Electoral Amendment Bill was presented as the only option. “There has been a focus on whether or not independent candidates should be allowed, when this matter is not up for debate as the Concourt has already ruled that they must be allowed,” says Fischer.

Parliament only convenes for the new year today (24 January) with the new deadline for public commentary on the bill set for 27 January. “This gives the National Assembly a mere four weeks to process any amendments in time for President Ramaphosa to sign off on the bill by the deadline,” Fischer explains. 

She adds that, according to the Electoral Commission (IEC), 28 February was the absolute last date for dealing with amendments to the bill in order to ensure sufficient time for preparation for next year’s elections.

But even if public commentary and amendments are taken into consideration and accepted, Fischer says the bill in its current form is still problematic. “Should the President sign off on it by end of February 2023, there are many grounds on which to challenge it,” she says. 

OUTA is submitting commentary yet again during this final opportunity for public participation. “We will closely monitor the process over the next month,” says Fischer.

More information

A soundclip with comment by OUTA's Parliamentary Engagement and Research Manager Rachel Fischer in English is here and in Afrikaans is here.

Read more about OUTA’s previous work on electoral reform here.

The Constitutional Court judgment in the June 2020 case brought by New Nation and others can be found here.