Picture: DAILY DISPATCH/MARK ANDREWS
Picture: DAILY DISPATCH/MARK ANDREWS

Eye Witness News reported last week that the Constitutional Court postponed a matter relating to the election nationally and provincially of independent candidates to August 15. The New Nation Movement, involving Chantal Dawn and others made an urgent application to the Constitutional Court to hear their submissions requesting it to set aside as unconstitutional and invalid the Electoral Act’s defect to make provision for, and regulate, individual candidates to stand for national and provincial elections.

The parties were appealing against a decision of the Western Cape High Court in April, which dismissed a similar case.

The Constitutional Court found that the applicants had failed to show urgency in the matter and consequently the case as to whether South Africans had a right to seek election in national and provincial legislatures as independent candidates from party politics.

The basis for the applicants’ constitutional and legal argument was that the extant proportional electoral system was not actually free and fair because it excluded independent candidates. Although counsel for the respondent, the SA government and the Electoral Commission of SA argued that the application was not in the interest of justice, and agreed that it could be postponed until August, as close to 45-million South Africans had an interest in elections taking place timeously.

On Wednesday 8 May, the SA electorate will be voting in a general election in relation to both the national and provincial spheres of government. The nature of the present electoral system is a vital issue in relation to democracy and free and fair elections, and the extant New Nation Movement application necessitates that the present system be examined carefully to determine whether it is fit for purpose, or whether there is a need for a change in general and not only whether provision should be made for independent candidates, not provided for at present.

Section 46 of the Constitution deals with, inter alia, the nature of the electoral system that must be used for the process of electing members of the National Assembly. It requires that such electoral system must, inter alia, be prescribed by national legislation … and be one that results in general in proportional representation. Section 105 is the corresponding provision relating to the election of members of the nine provincial legislatures, which in to the same effect.

SA, in accordance with the existing Electoral Act, 202 of 193, employs a closed-list proportional representation system. In this system, the different political parties each submit lists of individuals to be elected as members of the national and provincial legislatures. One of its advantages, besides the strict proportionality that it produces, lies in its simplicity, as voters only cast a single vote in relation to National Assembly and another single vote for the relevant provincial legislature in the province in which they reside.

However, it has a very serious defect in that the voters do not have the power to determine who is or is not on respective party lists, but instead must vote for a political party of their choice, regardless of the dissatisfaction they may have with certain individuals on a particular list or lists in question. Great displeasure has been expressed about a fair number of persons on the ANC lists because of their alleged serious misbehaviour.

In effect, the present system has the unfortunate result that those elected to the respective legislatures are accountable not to the voters, but only actually to the political parties to which they belong, which placed them on the lists and ranked them on the relevant list.

This is most unsatisfactory from a democratic point of view, since voters are not able to have the power to determine the composition of party lists or the ranking on such lists, but merely the power to choose which party to vote for, regardless of any serious reservations they may entertain concerning certain individuals on the list in question. 

This means that the manner in which our extant electoral system works does not give full expression to the will of the SA electorate. Furthermore, even if voters feel aggrieved by conduct of a certain parliamentarian, they have no power to remove such a person.

As explained such public representatives are not accountable to the voters but to the political party to which they belong. This flows from section 47(3) (b) of the Constitution, which states that “a person loses membership of the National Assembly if that person … ceases to be a member of the party that nominated that person as a member….”

This means that should an MP or member of the legislative assembly incur the wrath of his or her party, they can be deprived of membership of the party concerned and then automatically cease to be a public representative.

This is manifestly undemocratic and in conflict with the values set out in section 1 of the Constitution, which requires regular elections in a system of democratic government to ensure “accountability, responsiveness and openness”.

Since in principle it was generally acknowledged that a Parliament whose members are directly accountable to the electorate of their constituencies is likely to be more responsive than a situation where members are accountable only to the leadership of their individual parties, a commission of inquiry, chaired by late Frederick Van Zyl Slabbert was appointed to investigate and report on the electoral system.

Although this commission made both majority and minority recommendations, it was not acted on and in effect has been shelved. The reason for this is that there is a manifest lack of political will, particularly on the part of the governing ANC, to make the National Assembly and provincial legislatures more accountable and responsive to the people through the kind of electoral system recommended by the majority in the report of the Van Zyl Slabbert commission.

It recommended a mixed system, premised on the tried and tested German model. The latter is known as the additional member system, which is a mixed one that preserves the principles of proportionality in general, but introduces a significant measure of accountability to the electorate through constituencies that elect representatives directly.

There is an urgent need for such a change, since the lack of accountability and responsiveness in the working of the existing electoral system has, it is submitted, exacerbated the political climate for corruption and maladministration that escalated exponentially during the era of the Zuma presidency. Changing the electoral system to institute a hybrid would that should provide for independent candidates, as long as it complies with the requirement resulting “in general, in proportional representation”, would not require to be effected by an amendment to the Constitution, but merely by an amendment of the Electoral Act of 1993.

This is exactly what was recommended by the majority in the report of the Van Zyl Slabbert Commission. In the interest of democratic accountability and not only for making provision for independent candidates, this crucial issue needs to be very seriously considered and indeed put into effect for future elections.

• Devenish is an emeritus professor at UKZN and one of the scholars who assisted in drafting the interim constitution in 1993.