Constitutional Court alleviates barriers to entry for independents

In a landmark decision, South Africa’s Constitutional Court has struck down the 15% signature quota previously imposed on independent candidates seeking to contest elections, deeming it unconstitutional. The court mandated a replacement requirement of 1,000 signatures, heralding a significant shift in the nation’s electoral dynamics.

The Constitutional Court, in its majority judgment, led by Judge Jody Kollapen, asserted that the 15% signature requirement exceeded a mere procedural demand, emphasizing its restrictive intent. Judge Kollapen highlighted the substantial burden it imposed on independent candidates, demanding considerable time, resources, and energy to meet the quota.

The ruling stems from a challenge by the One South Africa (OSA) movement, which contended that the signature threshold placed an inequitable and unconstitutional burden on new entrants.

Under the existing Electoral Amendment Act, parties and independent candidates not currently represented in parliament faced a daunting task, needing to collect between 10,000 and 14,000 signatures to participate in national elections. The OSA movement argued that this stark contrast between the signature requirements for new entrants and established parties in parliament was unfair.

Crucially, the court found that the limitation on independent candidates’ rights to freedom of association, political choices, and the ability to stand for public office was not justifiable under section 36 of the constitution. The ruling effectively declared the 15% signature quota unconstitutional.

Given the impending elections expected no later than August 2024, the court acknowledged the practical challenges of referring the matter to parliament for constitutional rectification. As an interim remedy, the court ordered the removal of the 15% quota provision, replacing it with a reading-in of a more feasible 1,000 signature requirement.

The lowered barriers have led to concerns of a “phonebook” ballot paper, with dozens of new candidates making themselves known.

A less-discussed aspect of the reforms, which was touched on in a report by Michael Atkins and presented in the court case, is the addition of the new district-based seats. The Assembly will now be divided between 200 regional constituency-based seats, and 200 proportional representation seats (though the seat allocation includes some compensatory calculation measures).

Constituency-based seats tend to privilege the largest parties, and as such, new entrants will have to push harder to get seats at the National Assembly. According to Atkins’ calculations, an independent candidate, who can only stand on the regional ballot, would need 87% more votes than a political party to attain a seat.

The court upheld the new electoral reforms in this aspect, which could preserve the ANC’s lead in the elections even if they fall below 50% in proportional votes.

However, with the constitutional challenges concluded, the IEC can proceed with setting an election date.

With the Referendum Party arriving as newcomers on the Cape scene, there is concern within the party of the barriers the 14 000 paper signatures would impose.

The court offered no justification for this asymmetry in their ruling.

The regional ballot does not affect the provincial elections, making the Referendum Party’s core strategy of capturing enough DA voters to force a pro-referendum coalition with the governing party a real possibility, if they can cross the registration hurdle.