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On the ballot: Constitutional Court remedies endorsement signature threshold

The Constitutional Court has spoken and the rules for 2024 elections are now certain.

In its verdict on Monday, 4 December, the Constitutional Court lowered the number of endorsement signatures required for independent candidates to be on the national ballot to 1 000.

“I welcome the certainty that the judgment brings,” says Zackie Achmat.“I am on the ballot. My campaign, Zackie2024, has worked tirelessly and through the efforts of hundreds of dedicated volunteers. We now have more than 13 400 signatures, which surpassed the previous requirement of 13 201.”

The court delivered judgment on two challenges to the newly passed Electoral Amendment Act, brought by the Independent Candidates Association and One SA Movement: one on the endorsement signature threshold set for independent candidates to enter the national election, and the other on the number of seats available to independent candidates in the National Assembly. The judgment included consideration of the way in which seats are calculated when an independent candidate vacates a seat.

The court dismissed the challenge to the proportional split of the 400 National Assembly seats into 200 regional seats (contested by both parties and independents) and 200 compensatory (contested by parties only). This means that an independent candidate still needs close to double the number of votes to be elected. Regrettably, the Independent Candidates Association (the Applicant in this matter) did not provide evidence beyond the actuarial model to the court. As a result, the decision does not recognise the real world context where independent candidates struggle in an unequal battle against established parties with hundreds of MPs and hundreds of millions of rands in funding.

The threshold for endorsement signatures at 15% was found to be an “unjustifiable” limit on the right of an independent candidate. The remedy is to revert to the de facto 1 000 signatures prior to the amendment of the Electoral Act.

In his judgment on the endorsement signatures, Justice Jody Kollapen wrote for a majority of the Court and stated that “democratic elections are not solely a matter of arithmetic.”

“This case is about the constitutional right to stand for and hold public office. In particular, it is about the boundaries within which that right may be exercised and given effect to. Much has been said in this matter regarding the ability of independent candidates to contest elections successfully. However, contestation requirements ought not to be based solely on a candidate’s ability to win or lose. Elections serve a variety of purposes beyond securing office. They must consider a further, equally important purpose: expression. In the diversity that represents South Africa and in the commitment to inclusion that characterises our Constitution, a multiplicity of views enriches rather than diminishes the quality of our democracy. Simply put, democratic elections are not solely a matter of arithmetic, nor are they only about winners and losers. Instead, elections have an intrinsic value wholly separate from the outcome of the vote.”

Running a campaign takes a lot of resources and the reduction in endorsement signature requirements will pave the way for more independents and new parties to access the ballot. But Zackie warns that, increasingly, campaign funding will be the decisive factor in whether independents can compete with parties to get elected.

“The Zackie2024 campaign pivots now from garnering signatures to votes,” he explains. “The Act still privileges parties in terms of the number of votes required to win a seat in Parliament, which means as an independent candidate, I will need to campaign twice as hard as parties.”

Zackie2024 would like to thank everyone who supported the endorsement signature drive. Now we need your vote, your voice and your donation to get Zackie into Parliament.

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