Will 2024 be the year for independents?

Independent candidates will be allowed to contest the 2024 national / provincial election, courtesy of a Constitutional Court ruling on the Electoral Act. This will be the first election since 1994 where voters can directly elect members of the legislature. There is also a great deal of work to be done over the next three years, mostly by the National Assembly and the Electoral Commission, to prepare the country for these changes.


The challenge to the Electoral Act: NNM vs President

In 2019 the New Nation Movement (NNM) and others sued the government for the rights of independent candidates to contest national and provincial elections.The applicants argued that the Act was unconstitutional as it infringed on the right to exercise political choices. 

At issue was the treatment of independent candidates under the Electoral Act and whether this infringed political rights as provided in sections 18 and 19 of the Constitution. These provisions enshrine the right to free association and political rights, respectively. 

Section 19(1) provides that citizens are free to make political choices, which includes the right to found a political party, participate in political activities (including recruitment), and  campaign for political causes. Section 19(3) states that adult citizens are entitled to vote in elections, contest for office, and hold office if elected. 


The Constitutional Court’s ruling

In June 2020, the Constitutional Court found that the Electoral Act was invalid.

The court assessed whether the Electoral Act acted against the ambit and the content of section 18, and found that the section includes  positive and negative elements. The court concluded that the right to freedom of association entails the rights to associate, dissociate and to choose to not associate. 

The court also held that a generous and holistic interpretation of section 19 meant that citizens are not restricted to exercising political rights by voting for political parties. 

The court assessed whether the Electoral Act’s failure to allow individuals to contest elections as independent candidates constituted an infringement of section 19. The court ruled that this limitation on political rights was not justified under section 3(1) of the Constitution and, as far as the Act makes it impossible for  independent candidates to run for office, it is invalid. 

The court added that the rights in subsections (1) and (3) of section 19 are inextricably connected and a restrictive interpretation of the rights infringes the rights to freedom of association and human dignity.  

Finally, the court considered the question of whether the Constitution prescribes an exclusive proportional representation framework, The respondents (the President, the Minister of Home Affairs and others) contended that sections 46(1)(a) and 105(1)(a) provide that national legislation regulates the electoral system and that Parliament would be ousted of its competence to legislate proportional representation if independent candidates were permitted. 

The court rejected this argument and found that there was insufficient evidence for the argument that the Constitution prescribes exclusive party proportional representation.  

The court instructed Parliament to remedy the legal defects within electoral law within 24 months of its ruling . The Electoral Laws Amendment Bill is currently awaiting presidential assent and it amends the Electoral Commission Act of 1996 (to make provision for the registration of independent candidates) and the Electoral Act of 1998 (to give effect to section 19 which provides that eligible South African citizens have the right to stand for elections and to hold office if elected).  


The groundwork for the 2024 election

The Constitutional Court has given the government a June 2022 deadline for amending the Electoral Act. The two years between that deadline and the 2024 election will be a busy time. 

The amendments may include new political boundaries for constituency-based seats and complicated formulas for linking votes to seat allocations. This will mean more work for the IEC and (possibly) the Demarcation Board. 

This is a milestone for  electoral reform but more work is needed for independent candidates to have a sporting chance at success. Still, the ruling has  the potential to alter the political landscape.

Written by Sky Swales

April 29, 2021

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