Parliament has exactly a month left to meet the extended Constitutional Court (ConCourt) deadline to rectify the defect in the Electoral Act.
The national legislature was ordered to ensure that the act allows independent candidates the constitutional right to participate in national and provincial elections.
This came after the New Nation Movement and a group of other independent candidates successfully challenged the constitutionality of the act.
Constitutional Court Justice, Mbuyiseli Madlanga, declared the act unconstitutional on 11 June 2020 and ordered Parliament to rectify the legislation.
“It is declared that the Electoral Act 73 of 1998 is unconstitutional to the extent that it requires that adult citizens may be elected to the National Assembly and provincial legislatures only through their membership of political parties.”
“The declaration of unconstitutionality is prospective with effect from the date of this order, but its operation is suspended for 24 months to afford Parliament to remedy the defect giving rise to the unconstitutionality”, said Madlanga when he delivered a landmark judgment.
Parly admitted that first ConCourt deadline would not be met
The bill was only tabled to Parliament by the Home Affairs Department in January 2022, five months before the ConCourt deadline.
Nationwide public hearings were held in various parts of the country in March.
A month later, Parliament spokesperson at the time, Moloto Mothapo, conceded that National Legislature would not meet the deadline.
“Given the significance of the bill and the required public participation process, it has since become apparent that Parliament will not be in a position to pass an amendment to the Electoral Act before the June deadline. The bill was only introduced to the National Assembly on 10 January this year, leaving Parliament with only five months to process a bill of such public significance and interest. Accordingly, the Presiding Officers of Parliament approached the Apex Court to seek an extension in order to enable Parliament to properly deliberate on the bill before it and to ensure that citizens across the country are afforded an opportunity to meaningfully participate and share their views on the Electoral Amendment Bill,” Mothapo told SABC News Parliament in April 2022.
The then One South Africa Movement Leader, Mmusi Maimane, who is now the Leader of Build One SA (BOSA), was not happy with the delay by Parliament.
“It is absolutely crucial that the Electoral Laws Amendment Bill is amended before the expiry date, that Parliament cannot be allowed to go back to the ConCourt and blame technicalities for the delay. It is absolutely crucial that given that the Electoral Laws Amendment Bill was published in (the) government gazette on the 20th of August in 2020 and has been launched in Parliament’s Portfolio Committee on Home Affairs on the 18 of November (2020), that we do the work now. It is important for citizens to know that we uphold the rule of law, to ensure that electoral reform takes place in this country and that one day it is possible that we can directly elect our members of Parliament so as to bring the change this country needs and the accountability that citizens of this country demand,” said Maimane ahead of the June ConCourt deadline which Parliament missed.
Insert by Mercedes Besent reporting on a month remaining for Parliament to amend the Electoral Act:
The ConCourt granted Parliament the six-month extension with a new deadline on 10 December 2022.
The bill went through the National Assembly process. It was passed on 20 October during a special hybrid sitting and sent to the National Council of Provinces (NCOP) for concurrence.
The NCOP’s Select Committee on Security and Justice will be processing the bill.
The deadline for written submissions on the Bill was on Wednesday 9 November.
The Select Committee also met with the Independent Electoral Commission (IEC) yesterday to be briefed on the formula which will be used for the calculation of seats as proposed in the Bill.
IEC Chief Electoral Officer, Sy Mamabolo, explained how the system works in the calculation and allocation of national seats.
“A technical description of our electoral system is a multi-member two-tier compensatory closed list, proportional system for the National Assembly. Multi-member is two-tier. The regional tier as well as the national tier is a closed list system, because voters don’t rank candidates on the ballot and it’s a proportional system.”
“The total number of seats is divided as indicated into 200 compensatory national lists with national seats and 200 regional lists. The regional list is to be divided between regions using registration figures. In other words, using the figures in the voter’s roll. The droop quota is used for all the National Assembly and Provincial Legislature calculations.”
Droop divides the total running votes by the available seats in a legislative body plus one disregarding fractions. So that’s really the mathematical formula for determining the seats. You further determine the quota, and I have already indicated that a quota is that number of droop votes required to secure one seat,” added Mamabolo as he explained how seats are calculated.
NCOP members engaged IEC after seat calculation briefing
Democratic Alliance (DA) Member of the Select Committee, George Michalakis, raised concerns about how the model of seat calculations might impact the proportionality of the National Assembly
“Currently, if a member of Parliament or member of the National Assembly gives up give up their seat, it goes to the political party of which that MP was a member. So, regardless of how many people come and go, the proportionality of the National Assembly remains more or less the same as it was after the elections. In other words, what the people voted for.”
“What we will on this model sit with eventually is that depending on how many independents get in and I have seen if I understood it correctly quite a few of them got in on fractions. But depending on how many independents come in, how many of them leave within the five years, that you might end up with a National Assembly that proportionally does not represent what the elections results represented at the beginning of the term. And I think that is where the moral problems come in with…It’s the possibility that you might sit with a National Assembly that completely looks or even slightly looks different from what the election outcome was,” adds Michalakis.
ANC Member of the Committee, China Dodovu, said while the presentation was educational and welcomed, it was also technical.
He called on the IEC to educate citizens on the process
“Chair I would imagine when it is so technical and difficult for us, what about an ordinary member, an ordinary citizen, an ordinary voter. I wish that once this process is concluded, IEC must embark on a very, very rigorous campaign to educate ordinary South Africans (on) how this particular process works. I think it will be to the benefit of our people as well, especially in the wake of the fact that this bill has attracted a lot of interest”
“They simply say you are going to take votes for independent Ccandidates and give them to parties”
During the responses, Electoral Commission Chairperson, Mosotho Moepya, told members that the crux of the debate on the bill is about the allocation of seats.
“When we started, I indicated that there has been a significant amount of interest in this bill. But it hasn’t been so much the simple writing of the law. It has been the technical part of how seats are allocated. This is unprecedented. We have never had that situation, but we understand and that’s why today it’s as if we are attending a lecture in some mathematics or statistics or something like that. It’s unfortunately what it is and what we have to deal with.”
“And in that process, I noted comments from three members saying not everyone is mathematically inclined. And that makes it difficult. That is the thing that makes this bill when people ask about how is this are allocated and they disagree and you explain, and you lose them, they simply say you are going to take votes for independent (candidates) and give them to parties. I guess when we explain and through the formula, you will realise that that is the myth. There is no vote that is intended for one and this is a myth that is unfortunately so widespread and the mathematics, the law doesn’t say so in terms of this bill,” explained Moepya.
The NCOP has less than a month left to finalise the bill for Parliament to meet the Constitutional Court deadline. It will also be on the same day when South Africa will be commemorating 26 years since the 1996 Constitution of the Republic of South Africa was signed by former President Nelson Mandela at Sharpeville on 10 December 1996.
In the report below, 10 December 2021 marked 25 years of the Constitution: