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Just in: Constitutional Court Has declared Electoral Act unconstitutional.



The South Africa Constitutional Court has declared that the Electoral Act is unconstitutional because candidates can only be elected to the National Assembly and provincial legislatures through membership of political parties

A new South Africa is upon us, where the masses elect people they know and who live with them.

The declaration of invalidity of the Electoral Act isn’t immediate & Legislature has been given 24 months to align it with the Constitution.

People can now stand for election without having to belong to a political party. This is what Herman Mashaba has been calling for, the former Mayor of Johannesburg, who has been in the forefront to push this amendment.

This will lead to more accountability and less corruption. The New Nation Movement brought this case to the Constitutional Court.

The Electoral Commission of SA (IEC) is ready to help parliament to review the electoral system after a landmark Constitutional Court judgment on Thursday.

The apex court ruled that the Electoral Act was unconstitutional.

This means independent candidates will in the future be able to stand for national and provincial elections without any affiliation to a political party.

Chief electoral officer Sy Mamabolo said the IEC was ready to assist parliament with a review as necessitated by the judgment.

Mamabolo said the judgment would have serious operational implications for the IEC as well as the infrastructure that had been built up over the years.

“The whole electoral system will have to come under review given this decision. We have to invest in new systems because our internal systems have always been predicated on delivering an electoral system based on a party list.”

The Electoral Act did not make provision for private citizens to be elected to the national or provincial legislatures as independent candidates.

Mamablo said a new wave of investment would have to be made in the electoral system.

The court declared that section 19 of the Electoral Act was unconstitutional to the extent that it required adult citizens to only be elected to the National Assembly and provincial legislatures through their membership of political parties.

However, the court said the declaration of unconstitutional invalidity of the act was effective from the date of the latest order. It suspended the order for two years to give parliament time to remedy the defect.

The matter reached the court last year after the high court in Cape Town dismissed an application by the New Nation Movement, the Indigenous First Nation Advocacy SA and Chantal Revelle.

Revelle and the organisations wanted the high court to declare that the Electoral Act was unconstitutional because it omitted to regulate the positions of individuals standing for election at national and provincial level as independent candidates.

The current system allows people to be elected as public representatives on a party ticket only. They also sought an order directing parliament to take all necessary steps to resolve these matters “as soon as possible”.

Herman Mashaba Electoral Act

The Constitutional Court has today smashed open the gates of real democracy. They have ended the monopoly of vested interests & the parties who represent them. No longer will citizens be held hostage by the same, old parties offering nothing but rhetoric & broken promises.

The time will come when party loyalty will be a thing of the past, competence will be fashionable and we no longer have to vote for a bag of rotten potatoes because of that one special potato in the bag.

In explaining the way forward, Mashaba said that more needed to be done to ensure that parliament took the necessary steps to amend the Electoral Act to create direct accountability for South African voters.

“This would allow for a situation, for the first time in democratic SA, where voters could hold individual members of parliament accountable for their performance and their voting records. The problem lies with members of parliament, and our current political parties, being vehemently opposed to any form of direct accountability,” Mashaba said.

Herman Mashaba Electoral Act

Mashaba said that the relevance of the judgment lay in its “ability to pave way for electoral reform, a fundamental value of The People’s Dialogue emanating from the submissions of 2.4-million South Africans”.

“For parliament to give expression to this judgment, it cannot stop at amending the Electoral Act simply to allow for independent candidates to contest at a national or provincial level,” he said.

He said the political party he was working to establish had electoral reform as a key value and would “live the principle of accountability internally”. 

He said his party had already committed to subject aspirant candidates to a primary system, where members of the public would be able to vote for the candidate they would like to see standing in their community.

“What will arise from this is a much higher level of candidate, chosen by the residents of that area, to serve that community. This same system will be used as a performance management system to hold candidates to account should they fail the residents who elected them,” Mashaba said.

“This,” he said, “would create the scenario where an independent candidate could garner more votes than required for a single seat in the National Assembly or a provincial legislature and the remainder of the votes would have to be redistributed to other political parties who were not chosen by those voters. For the Constitutional Court ruling to be given expression, parliament must amend the Electoral Act to provide for a change to our electoral system,” he added.

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