Despite the Constitutional Court clearing a major hurdle out of the way for those looking to run as independent candidates in next year's national and provincial elections, electoral reform is still on the agenda for new entrants to the party-political game.

In a majority ruling, the court struck out the Electoral Amendment Act's provision requiring that independent candidates need to obtain 15% of the votes that were required to win a seat in the previous election in the province for which they intended to register for the coming elections.

Previously, new parties needed 1 000 signatures to register.

One South Africa (OSA) challenged this provision, arguing in its founding affidavit, it "unjustifiably, arbitrarily and disproportionately sets an independent candidate's requirement at 15%".

It further submits the requirement does not fulfil any legitimate government purpose and that less restrictive means, such as the original 1 000 signature requirement, would achieve the same objective.

Parliament and Home Affairs Minister Aaron Motsoaledi opposed it, while the Electoral Commission of South Africa (IEC) filed a notice to abide by it but did make submissions to the court.

The court noted only 500 signatures were required for new parties to register for the 2019 elections and that it was only increased to 1 000 in August 2021.  

The majority ruling penned by Justice Jody Kollapen read:

This increase in August 2021 occurred when the IEC was fully aware of our election trends over the period 1994 to 2019. During that period, modest signature requirements served the electoral system well and without exception. To this end, no consideration was given to setting a requirement fixed at 1 000 signatures, or one in proximity to that.

"The respondents identify the risk of frivolous contestation and logistical difficulties in broad terms but present little evidence to support it.

"Even if such risks do exist, the extent of the risks remain unknown. And it must also be borne in mind that the signature requirement is not the only mechanism for discouraging frivolous contestation.

"An independent candidate will also be required to lodge a monetary deposit. The draft regulations promulgated for comment in July 2023 set the deposit at R20 000.

"For all these reasons there was no proper evaluation of less restrictive means to achieve the purpose."

Kollapen was "not satisfied that the state respondents have shown that the limitation is reasonable and justifiable in an open and democratic society".

He noted this election would be the first in which independent candidates could contest national and provincial elections, following the June 2020 ruling by the apex court that the Electoral Act should be amended to allow it.

Kollapen said:

Parliament meets this historic moment with a first-of-its-kind signature requirement for independent candidates. We must be cautious and guard against such a requirement becoming a barrier to contestation.

The Electoral Amendment Act also placed the 15% requirement on new political parties wishing to register for the coming elections.

Kollapen stated a challenge to this requirement for new parties was not placed before the court, and therefore, it could not make a ruling on it.

OSA also questioned the constitutionality of the complicated way seats will be recalculated when vacancies occur, arguing it benefitted the bigger parties and treated those who voted for parties differently to those who voted for independents.

In this regard, the apex court did not agree.

Similarly, in a unanimous decision, the court also dismissed the Independent Candidates Association's (ICA) challenge.

The ICA argued the fact only 200 of the National Assembly's 400 seats were available to independent candidates and would create an "unfair election, distorts proportionality, and reduces the value of votes cast in favour of independent candidates for no reason, let alone a convincing reason", and it would lead to a situation where independent candidates required more votes to obtain a seat than parties did.

Independents can only contest 200 seats because the National Assembly is currently elected from 200 seats from the provincial lists, and 200 from a national list, which is used to ensure proportionality, therefore called compensatory seats.

The independents can only contest the provincial component of the election.

The ruling, penned by Justice Nonkosi Mhlantla, found the 200/200 split was not irrational and did not impugn any rights.

She also found the ICA could not prove independents would require more votes than parties.

ICA chairperson Michael Louis said after the ruling they accepted the judgment.

"I think the big thing is that the foundations have been laid for independent candidates," he added.

"I can tell you know the onus is on independent candidates to prove themselves, we have to go out, because the big thing is we can't change anything."

However, Louis remained unconvinced independent candidates required the same number of votes as parties to obtain a seat.

He said civil society played a "huge role" by challenging the act, because it had now been deemed constitutional.

OSA's Kgaugelo Moxwale added the ruling was not a victory for OSA, but a victory for democracy.

He said there were many good leaders in communities who were kept out of political parties.

"This is an opportunity for them to work the ground now and to literally represent the interests of the people in the legislatures of the country."

Moxwale added they felt vindicated.

One of the parties that intend to contest in the national and provincial elections for the first time, ActionSA, seems nonplussed by the court not also lowering the number of signatures that new parties must obtain.

"Fortunately, ActionSA is well on track to exceed the requirement, having already met the threshold in the majority of provinces," said its national chairperson, Michael Beaumont.

"As such, we are ready to contest the ballot and that will be our primary focus going forward as we take our offer to South Africans across the country."

He added that as a party they favoured electoral reform and South Africans should be able to directly elect their representatives to ensure accountability, they would introduce legislation to this effect "once elected".

Similarly, BOSA spokesperson Roger Solomons said its MPs "will take this issue to the floor of Parliament, standing with communities in demanding more accountable, direct representation in government".

"The fight for independent candidates to be fairly accommodated is far from over."

He added Parliament passed a law that made it difficult for independents and community organisations to compete.  

"More broadly, substantive electoral reform is urgent.

"In addition to accommodating independent candidates, several constitutional amendments are required and BOSA will work from Parliament to attain a constituency-based system, more Cabinet appointments from the public, and the direct election of the president," Solomons said.

The IEC welcomed the ruling and the certainty it brings.

"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 judgement handed down today by the apex court," read a statement from the commission.

"Pertinently, the electoral commission will now finalise adjustments to the signature requirements portal, so that prospective independent candidates and unrepresented parties can start collecting and capturing.

"The signature portal, as well as the final regulations, will be launched soon."

Parliament also welcomed the judgment.

"Today's ruling underscores the rigorous process that Parliament undertook to apply its mind and consider all pertinent issues relating to proportional representation as guided by the Constitution," said Parliament's spokesperson, Moloto Mothapo.

He noted the majority ruling declared suspended the invalidity for 24 months to give Parliament an opportunity to remedy the provisions for the number of signatures independents were required to register.

"An amendment would be necessary in due course to ensure that the statute book is aligned with the judgment," said Mothapo.

"Parliament remains unwaveringly committed to protecting every citizen's right to participate in elections freely and fairly."

The Electoral Amendment Bill as required by a ruling of the Constitutional Court in June 2020, which found the Electoral Act unconstitutional "to the extent that it requires that adult citizens may be elected to the National Assembly and provincial legislatures only through their membership of political parties".

This was met with much hope among those calling for electoral reform.

As the legislation slowly began to take shape, this hope evaporated, and the amendments pushed through by Motsoaledi, backed by the African National Congress (ANC) in Parliament, met much criticism based on the notion the act favoured big parties rather than allowing independent candidates to compete on an even footing.

After the Constitutional Court twice extended Parliament's deadline, the Electoral Amendment Bill was passed on 23 February.

President Cyril Ramaphosa signed it into law on 17 April.