THE Constitutional Court has dismissed an application to have the current Electoral Act declared unconstitutional.
One South Africa Movement and the Independent Candidates Association supported by political party Build One South Africa (Bosa) wanted some sections in the current Act changed because they infringe on individual rights.
Justice Nonkosi Mhlantla, reading the judgment penned by Chief Justice Zondo, on Monday, 4 December, said the Act meets constitutional muster.
The organisations had told the court that the 200/200 split, which means independent candidates can only contest elections for 200 of the 400 seats in the National Assembly (NA) was irrational.
They said the 200/200 split violates the right of independent candidates to stand for public office as votes for them weigh less than votes for political parties and makes it difficult to be elected.
Zondo found this argument was based on assumption that voters will not split their vote.
“On the facts and submissions the 200/200 split passes the rationality test as it achieves proportional representation and avoids the risk of overhang.
“In conclusion, the applicant has failed to prove that (a) the split was arbitrary and (b) a vote for an independent candidate carries less weight,” he said.
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He said the organisations have neither established that the impugned legislation was irrational nor that it infringes a provision in a bill of rights.
“Therefore, it has not made out a case to justify a declaration of constitutional invalidity. It follows that the application must be dismissed,” said Zondo.
Bosa said while it respects the court and accept its judgment, it was disappointing that in effect the judgment favours the status quo dominated by old, stale political parties.
“New entrants and independent candidates face an uphill battle with the odds stacked against them.
“Individuals will lose out on the proportional vote, which can only be captured by a political party. Therefore, our decision to form Bosa as a political party to benefit from proportionality has been vindicated, and we will contest next year’s elections on that basis,” said Bosa spokesman Roger Solomons.
A judgment by Justice Jody Kollapen ruled that independent candidates and new entrants only require 1 000 signatures to contest elections as opposed to 15%, which is likely to be between 4 000 and 9 000 signatures for the provincial legislature and between 10 000 and 14 000 for the NA.
Next year’s election will be historic in that independent candidates will contest national elections for the first time in history of democratic South Africa.
The Independent Electoral Commission (IEC) said in a statement that the judgment provides the necessary certainty in relation to the preparations of the 2024 national and provincial elections.
“The Electoral Commission will immediately put in place the regulations necessary to give practical effect to revisions of the electoral system in the light of the judgment handed down today by the apex court,” said IEC.
