CHAPTER 3: PREVIOUS ELECTORAL REVIEWS
The Electoral Reform Consultation Panel (ERCP) is South Africa’s third major review of the electoral system since 1994. It is, however, different from previous reviews as it is constituted in law. Secondly, it has been granted a significantly longer timeframe to thoroughly engage with the public and provide a comprehensive review of the electoral system. An initial review, the Electoral Task Team, was conducted in 2002 to establish a permanent electoral system for South Africa emerging from a transitional arrangement of the 1990s. The second review, the Ministerial Advisory Committee on Reform of the Electoral System, was initiated in 2021 in response to the Constitutional Court ruling that the electoral system should be amended to allow for independent candidates. Concerns over public participation in the process of preparing the legislative amendments to allow for independent candidates, in turn, led to the conceptualisation of the ERCP to conduct a thorough investigation of electoral system options and provide recommendations to the Minister of Home Affairs for tabling in Parliament.
In parallel, several independent commissions established since 1994 have similarly recommended a review of South Africa’s electoral system. This includes the 2009 Independent Panel Assessment of Parliament, the 2017 High-Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, and the Commission of Inquiry into Allegations of State Capture, finalised in 2022. Several court cases, including the New Nation Movement judgment, have likewise shaped the legal framework for the South African electoral system.
This chapter looks at the previous reviews and consequential court cases. The purpose is to provide a background to the ERCP, drawing from both targeted and parliamentary reviews. The chapter is structured into six parts. Immediately below is section one on the 2002 Electoral Task Team. Sections two and three deal with parliamentary reviews of 2006 and 2016, respectively. Section four examines the relevant findings from the Commission of Inquiry into State Capture. Thereafter, in section five, attention shifts to the 2021 electoral review. Section six deals with legal challenges to the Electoral Amendment Act passed in 2023. In each section, the chapter not only lays out the content and outcome of the reviews, but also the underlying reasons behind their inception.
ELECTORAL TASK TEAM, 2002
The electoral system adopted for the 1994 elections was a temporary arrangement agreed as part of the negotiated transition. This was an acknowledgement that the incoming government would still decide the future constitutional arrangements beyond a broadly agreed set of principles. The 1996 Constitution kept this transitional electoral system in place for the upcoming 1999 election, but with the provision that new legislation for a permanent electoral system would still be formulated. This meant that eight years after the inaugural election, new legislation on the electoral system needed to be introduced to replace provisions adopted by the transitional arrangements.
To address this gap in the law, the Cabinet appointed an Electoral Task Team (ETT) in 2002, chaired by Frederik van Zyl Slabbert, to draft legislation for the pending 2004 election. The ETT issued its report eight months later, with the Task Team divided on its recommendations. There were many areas on which the ETT agreed, including the core values of fairness, inclusiveness, simplicity, and accountability. Members of the task team unanimously praised the existing system for accommodating South Africa’s diversity.
Of the four values, the majority view felt that accountability was not sufficiently enforced by the system, with insufficient mechanisms for holding Members of Parliament accountable to voters. Their recommendation was to bring representatives closer to voters by using smaller regional multi-member constituencies corresponding to the administrative boundaries of local government districts. Their proposal included 300 seats distributed among 69 multi-member districts, with each allocated between three to seven seats depending on the population size, and 100 seats would be compensatory.
The majority believed that while the system adopted in 1994 performed well on fairness, inclusiveness, and simplicity, it could be improved in terms of the accountability of representatives to voters. Their reasoning drew a distinction between individual and collective accountability. Collective accountability occurs at each election when parties are subjected to the opinion of the electorate. In contrast, individual accountability is between voters and individual representatives. On the latter dimension, the majority argued that accountability could be strengthened by electoral reforms.
In their view, individual accountability could be best achieved by using open rather than closed party lists, with voters influencing the order of candidates without having to reject their favoured party. Alternatively, the use of smaller constituencies made up of three to seven representatives would create a much closer link with the electorate. This meant, they argued, that candidates would need to campaign in constituencies and represent voters afterwards, putting a face to representation.
Conversely, the minority view45 felt that the majority was proposing a solution to a problem that did not exist. They felt that any changes were unjustified, as the original goals of the electoral system to promote political diversity and broad political representation remained a priority. Thus, they rejected the majority’s view of accountability, arguing that accountability was sufficiently supported through regular elections.
The minority view likewise argued that the system used in 1994 and 1999 also received wide support from the broader public, and the majority of political parties. A survey conducted for the ETT showed high levels of satisfaction with the electoral system. The survey showed that 74% of the respondents were satisfied with the fairness and equality of the electoral system, and 81% with its inclusiveness. In terms of accountability, the survey showed that 68% felt that the electoral system helped voters hold political parties accountable, and only 60% felt that the system helped voters hold individual representatives accountable.
In the minority view, this showed that most of the public were content with the system used at the time. While the public also expressed a desire for more contact with representatives, in the minority view, this could be achieved by other means, such as strengthening constituency offices to increase the accessibility of representatives. Consequently, the minority saw no need for changing the system with the view that South Africa “cannot afford to experiment at this critical stage with a system whose form, worth and implications have not been thoroughly thought through, debated, evaluated and publicly interrogated.” Parliament ultimately adopted the minority proposal, retaining the system used in the 1994 and 1999 general elections.
INDEPENDENT PANEL ASSESSMENT OF PARLIAMENT, 2006
In 2006, the Speaker of the National Assembly and the Chairperson of the National Council of Provinces appointed an Independent Panel to review the functioning of Parliament in meeting its constitutional obligations. The panel was chaired by former Member of Parliament (MP) Pregs Govender, the panel was also asked to look at “the extent to which Parliament ensures that there is accountability, responsiveness and openness regarding the implementation of matters enshrined but not limited to Chapter 4 and 5 of the Constitution”.
Among the issues probed was the relationship between Parliament, voters, and the Executive in relation to oversight and accountability. The Panel deliberated at length on the impact of the party list electoral system on various aspects of Parliament’s work. It noted that the party list system tended to promote accountability of MPs their political parties rather than to the electorate. The MPs of the governing party, the report noted, avoid “confrontation and open criticism of senior members of the Executive”, and the Panel pointed to the electoral system as the cause of such avoidance. In their view, the Executive is made up of senior members of the governing party, who are also responsible for compiling a list of candidates for Parliament. MPs are held back by the fear that, if they criticised the Executive, then they would be excluded from the party list in the next election. In this regard, the “Panel agreed that the electoral system would need urgent reform”.
The Panel argued that an effective Parliament requires strong, independent MPs who act to safeguard the integrity of the legislature and provide oversight over the Executive. In their view, this integrity was called into question in the context of significant political events in the early 2000s. This included a lack of executive action to respond to the HIV/AIDS crisis, Parliament’s handling of the Arms Deal, and the dissolution of the Directorate of Special Operations (known as the Scorpions). This led to public criticism portraying, “Parliament as a rubber stamp of the Executive and/or the ruling political party.”
These public controversies again drew attention to the issue of accountability, and the Independent Panel recommended a review of “the impact of the party list system as it is currently structured in South Africa, as well as alternatives”. The report further argued that the electoral system should be replaced by a system “which attempts to capture the benefits of both the constituency-based and proportional representation electoral systems.”
HIGH LEVEL PANEL: ASSESSMENT OF KEY LEGISLATION, 2017
Nearly a decade later, a High-Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, chaired by former President Kgalema Motlanthe, was appointed. The panel aimed to review and assess the impact of legislation addressing South Africa’s greatest challenges, including poverty, unemployment, inequality and access to basic services. One of its primary functions was to review the implementation of legislation and identify legislative gaps to assess “the possible unintended consequences, gaps and unanticipated problems in post-apartheid legislation” to propose appropriate remedial measures to Parliament.
Questions of policy implementation, governance and oversight became the core focus of the Panel. It found evidence of weakness on the part of the government to execute policy, which reflected “a lack of political will to pursue stated policy objectives.” For the Panel, this brought into focus questions concerning the effectiveness of governance and accountability mechanisms. These included the role of Parliament in providing oversight and the role of the electoral system in facilitating the extent to which the public can hold their representatives to account.
The High Level Panel found the system weak on “holding the politicians to account to the electorate.” As politicians are elected to Parliament based on a list compiled by their parties, this “makes them beholden to the party and its leadership rather than voters and places party politics and loyalties ahead of effectiveness and delivery.” In their view, the system distances Parliament from the people. While constituency offices exist, most people are unaware of their constituency representatives or of the existence of such offices.
The Panel argued that electoral reforms could bridge the gap – i.e. between Parliamentarians and voters - by ensuring that people directly elect the representatives they want in a multi-member constituency-based system. Accordingly, the Panel recommended “that Parliament should amend the Electoral Act to provide for an electoral system that makes Members of Parliament accountable to defined constituencies on a proportional representation and constituency system for national elections.”
COMMISSION OF INQUIRY INTO STATE CAPTURE, 2018
The Commission of Inquiry into Allegations of State Capture (Zondo Commission) was established in 2018 to investigate allegations of state capture, corruption and fraud in the public sector. The commission also raised concerns over the effects of the party list system on disincentivising executive accountability.
Both Parliament and the ruling party came under scrutiny for their failure to prevent state capture. According to the Commission’s report, the ruling party chose to ignore allegations of corruption and impropriety, which had emerged as early as 2010. The party was found to have obstructed efforts to conduct parliamentary oversight over the President. This included failures by party leadership as well as elected officials to act on allegations of misconduct, with party leaders going as far as forcing party MPs to block parliamentary oversight of the President. When opposition parties tabled parliamentary motions for the initiation of public inquiries into allegations of state capture and corruption in state institutions, the ruling party used their majority to block these motions at the behest of party leaders who threatened to mete out punishment to any of its MPs found to have defied the party line.
In this regard, the Commission’s report found “a determined resistance and unwillingness on the part of the ANC in Parliament for Parliament to investigate and exercise oversight in relation to allegations of state capture.” While party discipline is a legitimate feature of a party-based democratic system, it cannot supersede the constitutional obligations of MPs to exercise oversight of the Executive. As cited in the Commission’s report, this is reinforced by various Constitutional Court decisions:
The fact that members of the Assembly assume office through nomination by political parties ought to have a limited influence on how they exercise the institutional power of the Assembly. Where the interests of the political parties are inconsistent with the Assembly’s objectives, members must exercise the Assembly’s power for the achievement of the Assembly’s objectives. For example, members may not frustrate the realisation of ensuring a government by the people if its attainment would harm their political party. If they were to do so, they would be using the institutional power of the Assembly for a purpose other than the one for which the power was conferred. This would be inconsistent with the Constitution.
The Commission’s report argued that the tension between party discipline and the Constitutional obligations of Parliament to exercise oversight of the Executive is aggravated by the nature of the electoral system. It argued that the system makes MPs “beholden to ‘party bosses’ with the power to determine party lists” and the re-election prospects of MPs. This is particularly the case if “the leadership of the Executive branch is - as may well be the case - in a position to jeopardise the party membership of Members of Parliament who exercise (or threaten to exercise) necessary and appropriate oversight over the Executive, including its leadership, this has the potential to suppress or diminish the effectiveness of such oversight.”58 This was demonstrated by the way MPs from the ruling party were threatened with punishment if they were to defy the party line, leading to MPs closing ranks to protect the Executive from being held accountable.
In the Commission’s view, a move to a constituency-based system of proportional representation could have several advantages, one of which would be to empower MPs to be more responsive to the political views and interests of their constituents. This would make MPs more accountable to the voters. This contrasts with a “non-constituency based proportional representation system” where an MP does not have that same direct, intimate connection to a set of constituents, but is rather accountable to the party. Having established a connection between the electoral system and the failure of public representatives to hold the Executive accountable, the Zondo Commission “recommended that Parliament should consider whether introducing a constituency-based (but still proportionally representative) electoral system would enhance the capacity of members of Parliament to hold the Executive accountable.”
NEW NATION MOVEMENT JUDGMENT AND THE MINISTERIAL ADVISORY COMMITTEE, 2021
In 2020, the Constitutional Court heard a case brought by the New Nation Movement,61 which sought to challenge the constitutionality of the Electoral Act to the extent that it did not provide for adult citizens to be elected to the National Assembly and Provincial Legislatures as independent candidates. The applicants contended that this requirement unjustifiably limited the right to stand for and hold public office, as provided by section 19(3)(b) of the Constitution. It was further argued that it infringed on the right to freedom of association under section 18, since it compelled citizens to join political parties in order to participate in representative democracy.
The Constitutional Court delivered three separate judgments. In the majority judgment, the Court found the Electoral Act unconstitutional to the extent that it excluded independent candidates. The Court reasoned that section 18 of the Constitution protects both the right to associate and the right not to be compelled to associate. It held that section 19(3)(b) should be interpreted in a way that promotes freedom of association, meaning that citizens should not be forced to join political parties in order to stand for office. The Court also found that the constitutional value of a multi-party system does not require exclusive party-based representation but rather prohibits a one-party state.
A second, concurring judgment agreed with the majority but added that section 19 must be interpreted in its historical context, particularly considering the past denial of political rights. The concurring judgment argued that the language of section 19 should be given a generous interpretation to give every citizen the fullest protection afforded by the section. It also held that the right to stand for office should be read as broadly as the right to vote, which is exercised individually. According to this judgment, restricting candidacy to party members undermines the intention of section 19(3)(b).
The third judgment disagreed with the interpretation of section 19(3)(b) in the first and second judgments. It argued that the right to stand for office must be understood within the constitutional framework, which prioritises a multi-party system and proportional representation. The dissenting judgment maintained that the Constitution does not expressly require the inclusion of independent candidates and that the majority’s interpretation conflates electoral preferences with constitutional rights.
On 11 June 2020, the Constitutional Court declared the Electoral Act unconstitutional to the extent that it required election to the National Assembly and Provincial Legislatures only through political party membership. The Court provided Parliament with 24 months to amend the law and remedy the defects in the Electoral Act.
In response, a Ministerial Advisory Committee (MAC) on Electoral System Reform, led by former Minister of Constitutional Development Valli Moosa, was appointed.62 One of the questions that the committee faced in reflecting on their mandate was whether they should seek to satisfy the Constitutional Court judgment with as little disruption to the existing system as possible. Alternatively, the committee also considered if this was an opportunity to “address public aspirations for an electoral system that includes a greater element of local representation and individual accountability to voters.”
Divergent views led to the committee making two different recommendations. Option 1, supported by the minority, proposed a modified version of the existing system to allow for the inclusion of independent candidates. This was a minimalist approach. It simply entailed allowing independent candidates to contest one of the nine provincial multi-member constituencies. Option 2, supported by the majority, proposed the adoption of a mixed-member proportional system. This would replace the nine provincial multi-member constituencies with 200 single-member constituencies while retaining the national compensatory list similar to the local government electoral system.
Parliament adopted the minimalist recommendation, which allowed independent candidates to contest one of the nine multi-member constituencies. It also introduced a second ballot for national elections on which voters could only vote for political parties. The adoption of this approach led to objections from stakeholders who felt that there was insufficient public consultation in the process of reforming the electoral system. Consequently, they threatened litigation, posing a risk of derailing the timetable for the 2024 elections. This led to a compromise in which the ERCP was conceptualised and included in the Electoral Amendment Act to address these concerns and provide for a thorough review of the South African electoral system and identify appropriate options for the country.
LEGAL CHALLENGES TO THE ELECTORAL AMENDMENT ACT, 2023
Since the passing of the Electoral Amendment Act in February 2023, two legal challenges have been brought against the Act to test its constitutional validity. In Independent Candidate Association NPC v The President of the Republic of South Africa and Others, the applicant challenged the rationality of the 200/200 seat split in the National Assembly established by the amended Electoral Act. The applicant argued that this split unfairly favoured political parties in that independent candidates could only contest for regional seats while parties could also contest 200 national compensatory seats. The applicant proposed a 350/50 split to allow independents to contest more seats.
Parliament opposed the challenge, arguing that the Constitution grants Parliament broad discretion in determining the electoral system and that the 200/200 split avoids the risk of overhang (where more seats are allocated than available), whereas the applicant’s proposed 350/50 split could introduce a remote risk of overhang.
The Court held that even if the 350/50 split proposed by the applicant might arguably be fairer and achieve proportionality, the Constitution expressly leaves the choice of electoral system in Parliament’s hands. It ruled that the 200/200 split meets the requirements of proportionality. The Court similarly reasoned that while both the 200/200 and 350/50 splits would meet the constitutional threshold for proportionality, it was not for the Court to prescribe to the legislature which of these to adopt.
Parliament further argued that the 200/200 seat split prevents the risk of overhang, which happens when more seats are needed to restore proportionality than are available. The applicant relied on the report of an independent analyst who assessed the risk of overhang and found a 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. The Court noted that while the risk of overhang with the 350/50 split was minimal, there was no legal mechanism to address it if it occurred. Unlike the Local Government Municipal Structures Act, the Electoral Amendment Act lacks a formula to resolve overhang, which could prevent the Electoral Commission from declaring election results if overhang arises.
In this context, the Court concluded that although Parliament’s stated objective behind the 200/200 split (to avoid the risk of overhang) was rational in this instance, it should not be interpreted as an indication that overhang will always be an insurmountable challenge. The Court pointed out that the Legislature has, in the context of local government elections, provided a mechanism to deal with it should it arise.
The Court also considered whether the 200/200 split made votes for independents count less or violated equality by treating independents and parties differently. It found that different impacts on groups do not automatically mean a breach of equality, and since both compete for the same regional seats with equal vote weight, and compensatory seats are accepted as party-only. Based on these findings, the Court dismissed the application.
The Electoral Amendment Act’s constitutionality was again challenged in One Movement South Africa NPC v President of the Republic of South Africa.65 The first challenge targeted the “signature requirement,” which mandated independent candidates to collect signatures totalling 15% of the previous election’s quota of registered voters in their region to contest. The second challenge concerned how seats are reallocated when an independent candidate’s seat becomes vacant (“recalculation challenge”).
The Minister of Home Affairs, Parliament, and the Election Commission opposed the application, explaining that the signature threshold had been reduced from 50% to 15% and applied equally to independents and unrepresented parties. They argued this ensured only serious candidates with a real chance of winning a seat could contest, linking the requirement to a legitimate government purpose.
The Court’s majority found that: (a) the signature requirement limited the constitutional right to stand for public office, and (b) the state had not shown this limitation was reasonable or justifiable in a democratic society. The Court emphasised the importance of rights in the Bill of Rights and found the signature requirement imposed a significant, unjustified burden on independents. The limitation was considered arbitrary and excessive compared to other countries. The Court declared the 15% requirement invalid, replacing it with a requirement for 1,000 signatures for both independents and new parties.
On the recalculation challenge, the applicant argued that disregarding votes for independents when their seat becomes vacant distorts proportionality and unfairly benefits parties. The Court rejected this, noting that votes for independents are not transferred to parties but simply removed from the calculation, and that independents can only ever hold one seat regardless of their vote total. The Court concluded that this approach limits the impact on party proportionality and dismissed the recalculation challenge.
CONCLUSION
South Africa’s electoral system has seen limited change since 1994 despite recommendations for reform over the last two decades. The only significant change to the system was the introduction of independent candidates and the second national ballot. Part of the reluctance for change, despite proposals to that effect, has been that the concerns and objectives the initial electoral system sought to achieve remained relevant. Over time, calls for electoral reform have, however, grown both from the general public as well as various independent reviews initiated by Parliament and Government. A central theme across these reviews has been a lack of accountability between representatives and voters and the failure of Parliament to hold the Executive accountable. It is within this historic context that the ERCP has been tasked with considering and recommending reforms to the electoral system.