The Concourt case that changes how candidates may stand for election in national and provincial elections 

In July 2019, OUTA applied to the Constitutional Court for permission to join a case calling for electoral reform. OUTA applied to be an amicus curiae (a friend of the court) in the matter; this application was granted. On 11 June 2020, the Concourt ruled that sections of the Electoral Act were unconstitutional and overturned them. The declaration of invalidity was suspended for two years, to give Parliament time to rewrite this law, to allow independent candidates to stand for election. 

The case (CCT110/19) was brought by the New Nation Movement NPC and others against the President and others. It revolved around whether the Electoral Act is unconstitutional because it prevents independent candidates from standing in a national or provincial election.

OUTA is not associated with and holds no brief for the original applicants, but regarded this case as a matter worthy of intervention due to the public importance of electoral reform for holding politicians to account. OUTA wants the law to be amended to allow individuals to stand as independent candidates in national and provincial elections, rather than the current system which allows only party candidates.

Independent candidates are more answerable to their voters as they face a real likelihood of being voted out if they fail to honour election promises. A system which allows for independent candidates will help mitigate the threats to accountability of the party list system.

Although the Concourt gave Parliament two years to fix the law, the Minister of Home Affairs and Parliament delayed this matter, and the Bill which is now under consideration was tabled in Parliament only in January 2022, a full 19 months after the Concourt judgment and leaving only five months to pass it.

Reforming the law: Avoiding real change and running late

In February 2021, OUTA made a submission on the Electoral Amendment Bill to Parliament's Portfolio Committee on Home Affairs, which was strongly critical of the Bill. In this submission, OUTA pointed out that the Concourt had given Parliament until June 2022 to update the law, which left Parliament with just four months to engage with the public on the bill. "OUTA observes with dismay the explicit reference to reduce public participation such that deadlines can be met," said OUTA's submission, pointing to a parliamentary document which says public hearings in all nine provinces are "discouraged" to prevent further delay. Parliament's delay had caused the process to be rushed.

OUTA was concerned that the public participation process limited the discussions to the Electoral Amendment Bill, as the committee had abandoned the alternative Electoral Laws Second Amendment Bill. This effectively disabled critical public deliberation on a variety of options. See OUTA's comments on this here.

OUTA also raised several significant problems with the Bill itself. For example: "Independents are expected to jump over mathematical quota calculations only to retain a single seat, even if they receive a majority portion of the total votes," said OUTA.

By late April, Parliament was so far behind on amending the law that it applied to the Concourt for a six-month extension.

OUTA would like to see the Bill reassessed and rewritten, to be more in line with the spirt of the Concourt judgment. If this extension is granted, we hope the time will be used to do this, using more visible and meaningful public participation opportunities.

OUTA is monitoring this process.

Timeline and documents

11 June 2020: The Concourt ruled sections of the Electoral Act unconstitutional, but suspends this order for two years. The Concourt judgment is here.

4 December 2020: The Electoral Laws Second Amendment Bill [B34-2020], a Private Member bill, was tabled by Cope MP Mosiuoa Lekota. This Bill is here.

June 2021: A Ministerial Advisory Committee (MAC) established by Minister of Home Affairs Aaron Motsoaledi to explore the options and listen to stakeholders submitted its report.

24 November 2021: Cabinet approved the submission of the MAC report to Parliament. The Minister's letter referring the report to Parliament and the full MAC report is here.

31 December 2021: The Electoral Amendment Bill was gazetted for comment. The gazette is here.

10 January 2022: The Electoral Amendment Bill [B1-2022] was introduced to Parliament and made available for public comment. A copy of the Bill and its progress, tracked by the Parliamentary Monitoring Group, can be found here.

15 February 2022: Parliament's Portfolio Committee on Home Affairs resolved to recommend that Parliament apply to the Concourt for an extension of the deadline.

21 February 2022: OUTA made a submission to the Portfolio Committee on Home Affairs on the Bill. Other civil society organisations and interested parties also made submissions. OUTA's submission is here.

23 February 2022: The Portfolio Committee decided it would not proceed with Lekota's Bill, the Electoral Laws Second Amendment Bill. The committee's reasons included that this Bill proposes broad, wide-ranging and substantive changes that could not be passed and implemented before the 2024 provincial and national elections (the timing of elections is set by the Constitution).

1 March 2022: OUTA made a presentation to the Portfolio Committee on our submission on the Bill.

7-13 March 2022: Parliament held public hearings, which focussed only on the Electoral Amendment Bill as the committee had decided to abandon the Electoral Laws Second Amendment Bill. This effectively disabled critical public deliberation.

11 April 2022: OUTA, the One South Africa Movement and other civil society organisations wrote to Parliament to complain that the public participation process on the Electoral Amendment Bill was flawed and did not meet constitutional standards. See OUTA's comments here.

13 April 2022: OUTA hosts a webinar on electoral reform, with panelists Michael Lous, Ebrahim Fakir, Zarina Prasadh, Mudzuli Rakhivane and Valli Moosa, aiming to promote awareness of the Bill and the issues around electoral reform. A recording of this webinar is here.

26 April 2022: The Presiding Officers of Parliament announce that they have applied to the Concourt for a six-month extension to the deadline of invalidity. The founding affidavit is here.

8 June 2022: OUTA Electoral Reform Info Sheet is here.

15 September 2022: OUTA submitted comment to the Portfolio Committee on Home Affairs, as part of the second round of comment. This submission is here.

28 September 2022: OUTA repeats comments that the Electoral Amendment Bill needs a complete rewrite. See here.

19 October 2022: OUTA joins other civil society organisations calling on MPs in the National Assembly not to pass the flawed Electoral Amendment Bill. See joint statement here. 

20 October 2022: The National Assembly adopts the Electoral Amendment Bill, despite civil society opposition. OUTA criticises the National Assembly's decision. See here.

9 November 2022: The Electoral Amendment Bill has moved to the National Council of Provinces (NCOP), and OUTA submits comment opposing the bill to the NCOP's Select Committee on Security and Justice. This submission is here and the joint civil society statement released the same day, criticising the bill, is here.

10 November 2022: OUTA publishes its Research report: Electoral Reform by Dr Sithembile Mbete. The report is here.

25 November 2022: The NCOP's Select Committee on Security and Justice agrees to the Electoral Amendment Bill with proposed amendments. See here.

29 November 2022: The NCOP passes the Electoral Amendment Bill with amendments and returns it to the National Assembly (referred to the NA's Portfolio Committee on Home Affairs) for concurrence. See here.

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