WRAP | What the ConCourt judgment means for the future of SA elections

Parliament must ensure that there is adequate public consultation and participation in determining the most appropriate electoral system for SA.

The Council for the Advancement of the South African Constitution (Casac) made this comment following the Constitutional Court judgment on Thursday, which ordered parliament to redesign the electoral system to enable individual candidates to participate in national and provincial elections.

The court held that the Electoral Act was unconstitutional to the extent that it does not make provision for individual candidates to contest elections to national and provincial legislatures.

Casac was one of two friends of the court in the case brought by the New Nation Movement (NNM), the Indigenous First Nation Advocacy SA (Ifnasa) and Chantal Revelle.

In its reaction, Casac said it had long argued that parliament needs to engage with the report of the Van Zyl Slabbert Commission and review the electoral system with the primary purpose of enhancing the accountability of elected representatives.

It said the high-level panel chaired by former president Kgalema Motlanthe also urged parliament to review and amend the Electoral Act.

Casac said parliament had failed to do so.

"As parliament now reviews the Electoral Act, it must ensure that there is adequate public consultation and participation so that citizens can make their voices heard in determining the most appropriate electoral system for South Africa," it said.

The Organisation Undoing Tax Abuse (Outa), another friend of the court, said it believes this judgment should give rise to meaningful amendments to the act, which could reduce the problem of MPs and political leaders placing political party interests ahead of those of citizens and the country.

"This ruling must be used to drive new electoral law that improves transparency and the accountability of people elected to be members of parliament, as parliament is where meaningful oversight ought to take place,” said Stefanie Fick, Outa’s director for accountability.

Parliament noted the judgment and said it will study its practical implications in relation to its obligations on the legislature. It said it was cited in the matter and had filed a notice to abide by the court’s decision, together with an explanatory memorandum.

"The explanatory memorandum addressed, amongst others, the time required for processing legislation, if amendments to the existing Electoral Act were required, and requested the court’s consideration in this regard," it said.

The Electoral Commission of SA (IEC) said the timing of this judgment - and the parliamentary review of the electoral system it prompts - was opportune given both the maturing of South Africa’s democracy and the looming impact of the Covid-19 pandemic on election processes around the world.

“The Electoral Commission welcomes the clarity the court has provided to the interpretation of the rights of citizens to stand for public office,” said IEC chairperson Glen Mashinini.

The commission said it was ready to provide technical assistance into this process to help enhance the country's electoral system.

In the judgment written by Justice Mbuyiseli Madlanga, the court held that if the state compels an individual to associate with a political party when such an  individual does not want to – whether by joining or forming a party – that limits the right to freedom of association.

The court found that although for some there may be advantages in being a member of a political party, party membership undeniably comes with impediments that may be unacceptable to others.

The court found the political party may overly restrictive to the free-spirited.

"It may be censoring to those who are loath to be straight-jacketed by predetermined party positions. In a sense, it just may at times detract from the element of self - the idea of a free self, one’s idea of freedom," said Madlanga.

Justice Chris Jafta wrote a separate judgment agreeing with the outcome and the reasoning in the judgment by Madlanga.

However, justice Johann Froneman wrote a dissenting judgment, in which he said it was not shown that the constitution prescribed something other than political parties in its fundamental multiparty system of democratic government.

Froneman said a multiparty system of democratic government also necessarily implied a representative democracy, founded on the principle of elected officials representing a group of people.