On 11 June 2020, the Constitutional Court declared the Electoral Act, 1998 unconstitutional to the extent that it prevents independent candidates from running for public office. The judgment has been suspended for 24 months in order to allow Parliament to amend the Act accordingly.

The central question before the court was whether it is constitutionally permissible to prevent eligible South Africans from standing for election if they do not belong to a political party. The applicants arguments in the matter centred around the view that the right to stand for office in terms of section 19 (3) of the Constitution is unjustifiably infringed by requiring candidates to run through a political party.

The Organisation Undoing Tax Abuse (OUTA), represented pro bono by attorneys Norton Rose Fulbright and advocates Isabel Goodman and Emma Webber, provided the Court with valuable submissions as friends of the court. OUTA is a non-profit organisation with the core aim of promoting accountability and transparency within state structures. 

The Court agreed with OUTA’s arguments that the requirement that the National Assembly and Provincial Legislatures must result “in general, in proportional representation” (sections 46(1)(d) and 105(1)(d) Constitution) does not mean exclusive party proportional representation. Proportionality can come in many forms and can include both party candidates and independent candidates. Accordingly, the idea of proportional representation in our Constitution is not inconsistent with independent candidate representation.

The court accepted that the proportional representation system used in South Africa does allow for independent candidates to run for public office. Section 157 of the Constitution creates an internal limitation because it requires that members who are elected to municipal councils must be drawn from party lists. However, if the Constitution had intended to exclude independent candidates from the electoral system, such a requirement would have been expressly stated in section 46 and 105 .  As OUTA put forward, this is not an isolated occurrence in the Constitution as there are many examples of ‘intra-constitutional curbs on the full effect of certain provisions of the Constitution’. In light of this section the right to stand for office must apply “in every instance where the Constitution has not specified a system of representation different to what section 19 requires” regarding the right to stand for office.

The Constitutional Court has described this matter as of utmost importance because it ‘delves into the right to vote and its possible limitations’. The right to elect and to be elected into public office is an important characteristic of our modern democracy. The discontent with political parties in South Africa has inspired some individuals to want to run as independent candidates in elections. This would afford them the opportunity to contribute to bringing about the changes they wish to see outside the limitations of belonging to a political party.

Written by Laura Macfarlane, Associate at Norton Rose Fulbright