Case CCT 144/23 
[2023] ZACC 41

Hearing Date: 29 August 2023

Judgement Date:04 December 2023

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Monday, 4 December 2023 at 12h00, the Constitutional Court handed down judgment in an application brought by Independent Candidate Association NPC for direct access to challenge certain provisions of the Electoral Amendment Act. The application was opposed by the Speaker of the National Assembly (National Assembly), the Chairperson of the National Council of Provinces (NCOP) and the Minister of Home Affairs (Minister). The President filed a notice of intention to oppose the application jointly with the Minister but did not file an answering affidavit. The Independent Electoral Commission abides the decision of the Court (Electoral Commission).

The dispute between the parties arose after Parliament enacted the Electoral Amendment Act which, amongst others, amended item 1 of Schedule 1A to the Electoral Amendment Act (the impugned schedule) to allow for independent candidates to contest for seats in the National Assembly. The applicant sought a declarator that the impugned schedule is inconsistent with sections 1(c); 3(2)(a); 9(1); 19(2); 19(3) and 46(1)(d) of the Constitution to the extent that it provides for 200 seats in the National Assembly to be filled by independent candidates and candidates from regional lists of political parties (regional seats) and 200 seats to be filled by candidates from national lists of political parties (compensatory seats).

The Constitution does not specify the national and provincial election system. Instead, it outlines the requirements that the electoral system should comply with. These requirements include the need for the system to be based on a national common voters’ roll, provide for a minimum voting age of 18 years, and result, in general, in proportional representation. The Constitution also caps the number of seats available for contestation in the National Assembly at 400 and requires that national legislation provide a formula for determining the number of members in the National and Provincial Assembly. Pursuant to these provisions, Parliament passed the Electoral Act.

From 1994 to 2019, the election of representatives in the National Assembly was based on a two- tier compensatory system, which filled the 400 seats in the National Assembly. 200 seats were filled from regional lists submitted by political parties and 200 were compensatory seats based on the national lists of political parties. The nine regions for which there were regional lists corresponded with the nine provinces. Voters in any particular region could only cast one vote on a single ballot paper which listed the contesting political parties. Their vote counted once towards the regional seats and once towards the compensatory seats. Whereas the purpose of the regional seats was to ensure that voters in the respective regions (provinces) were represented in proportion to the population size of their region in the National Assembly, the purpose of the national (compensatory) seat was to restore overall proportionality as between the represented political parties due to potential distortion created by the regional system. To determine how many compensatory seats a political party was entitled to, the total number of votes achieved by the party nationally was divided by the compensatory quota per seat to give a provisional number of compensatory seats for the party. The regional seats won by that party were then deducted from the provisional number of compensatory seats to arrive at that party’s final compensatory seats.

On 11 June 2020, this Court in New Nation Movement v President of the Republic of South Africa (New Nation II) held that the Electoral Act was inconsistent with the Constitution as it made no provision for independent candidates to contest elections for the National Assembly and Provincial Legislatures. The operation of the declaration of invalidity was suspended for 24 months to afford Parliament an opportunity to remedy the defect giving rise to the unconstitutionality. The subsequent legislative process culminated in the Electoral Amendment Act, which came into force on 17 April 2023.

On 30 May 2023, the applicant launched an application for direct access in this Court and contended that Parliament acted unconstitutionally by splitting the seats in the National Assembly into 200/200. It argued that the impugned schedule was unconstitutional as the split favoured political parties in that the independent candidates could only contest for regional seats and the split at 200/200 was irrational. According to the applicant, the split should be 350 for regional and 50 for compensatory seats.

In a unanimous judgment penned by Mhlantla J (Zondo CJ, Maya DCJ, Kollapen J, Mathopo J, Rogers J, Schippers AJ, Theron J and Van Zyl AJ concurring), the Constitutional Court held that the circumstances of this case are exceptional and that the issues raised are purely legal in nature. Therefore, it granted direct access.

On the merits, the Court considered the applicant’s allegation that the 200/200 split is irrational and inconsistent with the rule of law and, therefore, contravenes section 1(c) of the Constitution. The Court reiterated the established principle that in order to pass constitutional muster, the exercise of public power by the Executive and other public functionaries must, at the very least, comply with the threshold of rationality. Decisions must be rationally related to the purpose for which they are given, and this is an objective enquiry. With reference to its earlier judgments, the Court held that as long as the purpose sought to be achieved is within the authority of the functionary and as long as the functionary’s decision is rationally connected to that purpose, a court cannot interfere with the decision simply because it disagrees with it.

The Court considered the parties’ submissions, and stated that properly construed, the dispute between the parties is not whether it is irrational for Parliament to distinguish between regional and compensatory seats in the National Assembly. Rather, the dispute concerns the number of compensatory seats that ought to be reserved for political parties, with the applicant proposing a 350/50 split, on the basis that the 200/200 split debases the value of votes for regional seats.

The Court held that even if the 350/50 split proposed by the applicant might arguably be fairer and achieve proportionality, sections 46(1) and 105(1) of the Constitution expressly leave the choice of electoral system in Parliament’s hands. Wide latitude is given to Parliament to consider the manner in which to conduct the electoral system. At least on the requirement of achieving proportionality, the 200/200 split chosen by Parliament passes constitutional muster.

Parliament’s second stated objective of the 200/200 split is that it avoids the risk of overhang. An overhang occurs when more seats are required to be allocated to restore proportionality as between represented parties after the allocation of regional (or constituency) votes than are available in the Legislature. The applicant relied on the report of an independent analyst who assessed the risk of overhang and found a foreseeable but remote risk of overhang under the 350/50 split, limited to one seat. On the 200/200 split, however, there is virtually no risk of overhang.

Besides showing that the risk of overhang is remote on the 350/50 split, the Court held that the applicant did not offer any solution to combat the risk or how it should be dealt with should the risk materialise. The Court went on to explain that the fact that the risk is limited to one seat is immaterial because if the risk materialises, the Electoral Commission would not be able to declare the election and any declaration of the election results where overhang has occurred would likely be challenged in court. The Court held that the foreseeability of overhang under the 350/50 split as proposed by the applicant is potentially destructive to the applicant’s case, and so too is the acknowledgement that the 200/200 split serves a legitimate governmental purpose of ensuring proportionality in results. The Court stated that the risk of overhang will not always be an insurmountable obstacle. However, on the applicant’s pleaded case, the Court concluded that Parliament’s second stated objective of the 200/200 split, which is to avoid the risk of overhang, is achieved. The Court concluded that the 200/200 split passes the rationality test as it achieves proportional representation and avoids the risk of overhang, as intended.

This Court then considered the submission that the 200/200 split violates section 3(2)(a) of the Constitution in that a vote for an independent candidate carries less weight than a vote for a political party well as the argument that the split violates the right to equality guaranteed under section 9(1) of the Constitution in that it arbitrarily differentiates between independent candidates and political parties. In considering this challenge, the Court held that the fact that a law affects different categories of people differently does not prove a violation of the right to equality as provided in section 9 of the Constitution. The person alleging the violation should provide evidence to support the alleged violation. The Court held that the applicant failed to discharge the onus of proving that the model articulated by Parliament infringes on the equal protection provisions.

The Court reasoned that independent candidates and political parties compete for the same quota in regional elections and the votes carry the same weight. There is no differentiation in respect of regional seats. The Court further drew attention to the fact that while the applicant accepted that compensatory seats should only be reserved for political parties, they rejected the reservation of 200 seats on the basis that independent candidates need double the votes that political parties need to win a seat since a vote for a political party counts twice. This proposition, the Court said, is based on the critical assumption that those who vote for a political party will vote for the same party on both the regional and compensatory ballot. In dismissing the applicant’s submissions on this point, the Court referred to evidence of vote splitting in the 2019 elections. The Court also explained that the possibility of vote splitting is an unavoidable consequence of Parliament having introduced two ballot papers in order to accommodate independent candidates. An electoral law, the Court said, could also not be formulated on the basis of an assumption as to how people will vote as the applicant’s challenge suggested.

The Court held that the applicant has not been able to prove that (a) the split is arbitrary and (b) a vote for an independent candidate carries less weight. Accordingly, the section 3(2)(a) and 9(1) challenge was dismissed.

Turning to the argument that the 200/200 split violates sections 19(2) and 19(3) of the Constitution in that it undermines the fairness of the outcome of the elections and violates the “right to vote” and to “stand for public office”, the Court considered the contention that votes for independent candidates weigh less than votes for political parties which makes it more difficult for an independent candidate to be elected. Following the decision in Ex Parte Minister of Safety and Security: In Re S v Walters, the Court held that the test for examining whether an enactment violates a right in the Bill of rights “entails examining (a) the content and scope of the relevant protected right(s) and (b) the meaning and effect of the impugned enactment to see whether there is any limitation of (a) by (b).”

The Court then held that in the present case, “the content and scope of the relevant protected right” refers to the political rights protected under section 19(2) and 19(3) of the Constitution. The Constitutional Court’s jurisprudence shows the importance of political rights in light of our history of political exclusion and that the right to vote and the right to free and fair elections are closely linked. While the right to vote gives content to the right to free and fair elections, the right to free and fair elections has implications for how the right to vote must be exercised.

The Court recognised that while there is no internationally accepted definition of the term “free and fair election”, some fundamental elements have been distilled by the Constitutional Court in its previous judgments: these include that a person that is entitled to vote should be registered to do so, and those not entitled to vote should not be permitted to do so; and the Constitution protects not only the act of voting and the outcome of elections but also the right to participate in elections as a candidate and to seek public office. The Court then held that these elements for free and fair elections are met under the 200/200 split. The Electoral Amendment Act, reasoned the Court, entitles every adult citizen to a vote, and they can, in keeping with the ruling in New Nation II, vote for either a political party or an independent candidate. The Electoral Amendment Act also allows citizens to stand for political office and to hold office if elected. Further, the Court rejected the applicant’s argument that a vote for a political party counts double to that of an independent candidate. It held that this argument was based on the assumption that voters will not split their vote, an assumption that is unsustainable.

The Court held that the applicant was required to show that the measures adopted by Parliament constitute a limitation of the political rights alleged and that the applicant had failed to discharge this onus. The section 19 challenge was thus dismissed. Therefore, the impugned schedule does not infringe any of the fundamental rights in the Constitution. As the applicant had failed to prove a limitation of any right, that was the end of the enquiry. 

In the result, the Constitutional Court granted direct access to the applicant but dismissed the application and each party was ordered to pay its own costs.

 

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