The South African electoral system has long-since been in want of reform. The current party-list proportional representation (PR) structure was never intended to last forever.
Rather, the drafters of our Constitution planned for it to be a transitional mechanism to facilitate the first two elections so that a general sense of proportional representation could be achieved as demanded by section 46 of Constitution. This was an appropriate trade-off as although carrying a risk of producing party diktat loyalists, the PR system prevented a one-party state from forming during such a presumably tumultuous period.
Almost three decades later, the “temporary” proportional representation system has remained embedded in the inner working of our Republic and the tendrils of party politics have a stranglehold over the national assembly.
The need for reform
Political party association remained a requirement to gain access to the legislature and it was impossible for an independent candidate to take a seat in the national assembly to provide a now critical line of direct accountability for the electorate.
In June of 2020 however, the Constitutional Court declared in its New Nations Movement judgment that the current electoral system was unfairly discriminant against independent candidates. It found that forcing individuals to associate with a political party to access seats in Parliament infringed on the right to freedom of association as protected in the Bill of Rights.
To this extent, the Electoral Act of 1998 was deemed constitutionally invalid. This declaration was suspended for 24 months to allow Parliament to upgrade the electoral system and finally incorporate a means for independent candidates to run for Parliament whilst maintaining a general sense of proportional representation.
Electoral Amendment Act
Consequently, the Electoral Amendment Act 1 of 2023 (‘EAA’) was steamrolled through the legislative process and signed into law by President Cyril Ramaphosa on 13 April 2023 despite the outcry from civil society.
Although the EEA has allowed independent candidates to participate in national and provincial elections in compliance with the Constitutional Court’s order, its provisions have been criticised as ineffective and nonsensical.
The first glaring issue is that independent candidates can only ever hold one seat in parliament regardless of how much support they garner. This grossly misrepresents the will of the people and their representation in the legislature.
Secondly, the quota for independents is effectively double the threshold for a political party’s seat. Any votes that exceed this minimum threshold of are wasted. Voters are disincentivised from supporting independent candidates because a vote for an independent is simply worth less than one for a party.
Thirdly, independent candidates will face an uphill battle on the campaign trail as they have limited access to resources such as financial funding and support from organisations and businesses.
These recent reforms simply siphon votes to political parties by deflating the value of a vote for an independent candidate. Thus, the provisions of the EAA distort the democratic will of every South African to the advantage of political parties.
Electoral Reform Consultation Panel
Section 23 of the EAA obliged the previous Minister of the Department of Home Affairs, Dr Aaron Motsoaledi, to establish the Electoral Reform Consultation Panel (‘ERCP’) in May this year.
The functions of the ERCP are to independently investigate, consult, report on and make recommendations to the Minister regarding potential electoral reforms for elections held after 2024. Thus, the Panel plays a vital role in reviewing the nation’s electoral system and guiding the trajectory of our young democracy.
Specifically, the Panel is required to undertake a public participation process after the 2024 elections in order fulfil this mandate. To this end, the ERCP’s chairman, Adv Richard Sizani, called for members of the public, organisations, prospective independent candidates and political parties to submit comments on potential electoral reforms.
Submissions must address whether, how and why the nation’s current electoral system should be reformed or perhaps replaced. Participants have until 30 September to make their voice heard.
Conclusion
Public participation is not just a procedural step—it is the cornerstone of any healthy democracy. The ERCP’s call for public comment provides a critical opportunity for citizens to shape the future of South Africa’s electoral system, and prevent another legislative blunder as experienced with the EAA from re-occurring.
By voicing their concerns, opinions, and ideas, individuals can ensure that the system truly reflects the will of the people, rather than serving the interests of political parties alone. You can have your say on electoral reform before 31 October with DearSA here.
In a democracy, every voice matters, and this moment offers the public a chance to help build a more inclusive and accountable political landscape for future generations.
