Chapter 29

Elections
Glenda Fick

29.1 Introduction

29.2 Voting in national, provincial and municipal elections

(a) Identity documents and voter registration

(b) Voting rights of prisoners

29.3 Election of national and provincial legislatures

(a) Calling for elections

(b) Composition of the national assembly and provincial legislatures

(c) The electoral system applicable to national and provincial elections

(d) Floor-crossing and electoral systems

(e) Membership in the national and provincial legislatures

(f) Floor-crossing in the national and provincial legislatures

29.4 The Constitution Amendment Act 2 of 2003

29.5 Funding of political parties in the national and provincial legislatures

29.6 Election of municipal councils

(a) The electoral system applicable to municipal elections

(b) Membership of municipal councils

(c) Floor-crossing in the municipal councils

29.7 The Electoral Commission

(a) Establishment of the Commission

(b) Composition of the Commission

(c) Independence of the Electoral Commission

29.8 The Electoral Court

OS 06-04, ch29-p1

29.1 Introduction
In a representative democracy, elections provide the primary means through which
citizens express the general will of the polity.1 The Final Constitution vouchsafes free,
fair and regular elections for every legislative body established in terms of the
Constitution2 and guarantees those political rights such elections require.3

While the Final Constitution and our electoral laws refer to free and fair elections,
they do not tell us what free and fair actually means. The standard embraces several
related concerns. An election is free and fair if (a) all candidates and voters have the
opportunity to exercise all relevant rights; (b) each voter counts as one; and (c) all
candidates and parties campaign on a formally equal basis.4

This chapter will canvass both the constitutional provisions and the enabling
legislation designed to secure free and fair national, provincial and municipal
elections.5 This chapter will also engage those constitutional provisions and
legislative enactments that govern the Electoral Commission.6

OS 06-04, ch29-p2

1 Sunstein makes the point that '[a] good constitution ensures democratic elections and a free
press.' He goes on to say that the central goal of a constitution is to create the preconditions for a
well functioning democratic order, one in which citizens are genuinely able to govern themselves.
See C R Sunstein Designing Democracy: What Constitutions Do (2001) 6.

2 Constitution of South Africa Act 108 of 1996 (the 'Final Constitution' or 'FC'), s 1(d), reads, in
relevant part: The Republic of South Africa is one, sovereign, democratic state founded on the
following values . . . [u]niversal adult suffrage, a national common voters roll, regular elections and
a multi-party system of democratic government, to ensure accountability, responsiveness and
openness.

3 FC s 19 reads, in relevant part: (1) Every citizen is free to make political choices, which includes
the right to form a political party, to participate in the activities of, or recruit members for, a
political party, and to campaign for a political party or cause. (2) Every citizen has the right to free,
fair and regular elections for any legislative body established in terms of the Constitution. (3) Every
adult citizen has the right to vote in elections for any legislative body established in terms of the
Constitution, and to do so in secret, and to stand for public office and, if elected, to hold office.

4 See P De Vos 'Free and Fair Campaigning in N Steytler et al (eds) Free and Fair Elections (1994)
119 (Free and fair elections form the bedrock of a democratic society, instilling popular confidence
in the system of government and in the governors themselves as representing the will of the
people.) See also J Elklit and P Svensson 'The Rise of Election Monitoring: What Makes Elections
Free and Fair?' (1997) 8(3) Journal of Democracy 32-46. Free and fair elections is the internationally
accepted standard. See Centre for Human Rights Human Rights and Elections: A Handbook on the
Legal, Technical and Human Rights Aspects of Elections (1994); SADC Principles and Guidelines
Governing Democratic Elections (2004) 3.

5 The provisions relating to the election of the national and provincial legislatures are set out in FC ss
46 and 105, respectively. FC s157 addresses the election of legislative structures in local
government. The most important pieces of electoral legislation are the Electoral Commission Act
51 of 1996, the Electoral Act 73 of 1998 and the Municipal Electoral Act 27 of 2000. See also
Mketsu & others v African National Congress & others 2003(2) SA 1 (SCA), 2002(4) All SA 205
(SCA). In Mketsu, the Supreme Court of Appeal pointed out that the Electoral Act was to be
applicable to national, provincial and municipal elections under FC s 3. Parliament provided that
the Act was to come into effect at a date to be proclaimed and that s 3(c), which addressed
municipal elections, would come into effect later than the rest of the Act. As it turned out, no such
date making the Act applicable to municipal elections was proclaimed. Instead, Parliament passed
the Municipal Electoral Act 27 of 2000. The provisions of this Act are similar to the Electoral Act.
Indeed, s 78 of the former contains the same provisions as s 96 of the latter.

6 FC s 190(1)(a)-(b).
29.2 Voting in national, provincial and municipal
elections
The right to vote is qualified by the requirement that one must be a registered voter.
Unlike the 1994 election, for which there was no voters' roll, the Final Constitution
contemplates an electoral system based on the national common voters' roll for the
election of the National Assembly.7 Elections for the provincial legislatures and
municipal councils are based on the province's segment and the municipality's
segment of the national common voters' roll respectively.

The Electoral Act 73 of 1998 creates an environment for free and fair elections of
the national and provincial legislatures. Although the Act does not define a free and
fair election, compliance with its provisions results in elections that can be regarded
as free and fair. The Electoral Act ensures that all South African citizens whose
names appear on the voters' roll have the right to vote.

The compilation of the national common voters' roll by the chief electoral officer
requires a voter registration process.8 Any South African citizen in possession of an
identity document may apply for registration as a voter. The required identity
document is a bar-coded identity document that contains computerised information
about a potential voter. The information contained in the barcode that is used to
construct the voters' roll.

The necessity of possessing a bar-coded identity document as a prerequisite for

registering as a voter proved controversial in the run-up to the 1999 national and
provincial elections. Many South Africans citizens did not possess the required
identity document.9

(a) Identity Documents and Voter Registration

In New National Party of South Africa v Government of the Republic South Africa,10
the Constitutional Court recognised the significance of free and fair elections in
relation to the right to vote.11 The Court stated:

The right to free and fair elections underlines the importance of the exercise of the right
to vote and the requirement that that every election should be fair has implications for
the way in which the right to vote can be given more substantive content and
legitimately exercised.12

7 FC ss 46, 105 and 157.

8 Section 6 of the Electoral Act.

9 For purposes of the general registration of voters prior to the 1999 elections, an identity document
included a temporary certificate, issued by the Director-General of Home Affairs, to a South African
citizen from particulars contained in the population register and who had applied for an identity
document. . Therefore, citizens who had taken steps to apply for an identity document and who
were in possession of a temporary registration certificates were eligible to register and once
registered, qualified to vote in the second democratic election of the National Assembly and
provincial legislatures.

10 1999 (3) SA 191 (CC), 1999 (5) BCLR 489 (CC) ('NNP').

11 Ibid.
This broadly stated principle has two concrete implications. First, each citizen must
be entitled to vote only once in an election. Secondly, only those persons

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entitled to vote should be permitted to do so. In order to ensure the proper exercise
of the right to vote, [t]he process of registration and voting needs to be managed
and regulated in order to ensure that the elections are free and fair. 13 The NNP Court
held that the Electoral Act creates the appropriate mechanisms for voter
registration, voting and the construction of the national common voters roll. In
particular, the NNP Court was satisfied that a bar-coded identity document
constituted a rational means of realizing the legitimate government purpose of
enabling the effective exercise of the right to vote.

In Democratic Party v Minister of Home Affairs the constitutionality of the

provisions of the Electoral Act that provide for the documents necessary for
registration and voting were challenged.14 Goldstone J, writing for the Court, took the
view that the issues relating to the constitutionality of the Electoral Act in the
present case were substantially similar to those addressed by the court in New
National Party. In the Electoral Act, Parliament expressly excluded certain citizens
from registering as voters. The Act provides that the chief electoral officer may not
register a person as a voter if the person has not registered in the prescribed
manner or has applied for registration fraudulently. Other bars to registration (and
voting) are: being declared by the High Court to be of unsound mind or mentally
disordered, detention under the Mental Health Act, and not being ordinarily resident
in the voting district for which a person has applied for registration. 15

(b) Voting Rights of Prisoners

The Interim Constitution contained provisions that permitted Parliament to qualify

the right to vote.16 Section 16(d) of the Electoral Act 202 of 1993 denied the right to
vote to prisoners who had been convicted and sentenced without the option of a fine
in respect of murder, robbery with aggravating circumstances and rape; or who had
been convicted and sentenced without the option of a fine for any attempt to
commit these offences. The Electoral Act 73 of 1998 did not expressly deny any
category of prisoner the right to vote in a South African election.

Just prior to the 1999 elections, the Constitutional Court considered the voting
rights of prisoners. In August v Electoral Commission, the Court held that prisoners
were not excluded from voting by the provisions of s 8(2) of the Electoral Act, were
entitled to register as voters and could not be disenfranchised. 17 Furthermore, all
prisoners who had registered to vote were entitled to vote in the election of the
national and provincial legislatures in 1999.

12 Ibid at para 12.

13 NNP supra at para 16.

14 1999 (3) SA 254 (CC), 1999 (6) BCLR 607 (CC).

15 Section 8(2) of the Electoral Act.

16 Section 6(c) and s 21(2) of the Constitution of the Republic of South Africa 200 of 1993 (the Interim
Constitution or 'IC').
 OS 06-04, ch29-p4

In its prefatory remarks in August, the The Constitutional Court quoted the
following dictum from Haig:

All forms of democratic government are founded on the right to vote. Without that right,
democracy cannot exist. The marking of a ballot is the mark of distinction of citizens of
a democracy. It is the proud badge of freedom. While the Charter guarantees certain
electoral rights, the right to vote is generally granted and defined by statute. That
statutory right is so fundamental that a broad and liberal interpretation must be given
to it. Every reasonable effort should be made to enfranchise citizens. Conversely, every
care should be taken to guard against disenfranchisement. 18

After establishing that the Constitution did not disenfranchise prisoners, the August
Court had to determine whether there was any basis in law to do so. According to
the court, [r]ights may not be limited without justification, and legislation dealing
with the franchise must be interpreted in favour of enfranchisement rather than
disenfranchisement.19 Since Parliament had failed to limit the voting rights of
prisoners in terms of a law of general application that was reasonable and justifiable
under FC s 36, prisoners were entitled to the full and effective citizenship. 20 That
includes the right to vote.

In August, the Court was also required to interpret the phrase 'ordinarily resident'
in s 7(1) of the Electoral Act. It held that the phrase had to be interpreted to allow for
the enfranchisement of voters. In the circumstances of the case, those prisoners

17 1999 (3) SA 1 (CC), 1999 (4) BCLR 363 (CC) ('August').

18 Haig v Canada 105 DLR (4th) 577, 613 (SCC) cited in August (supra) at para 18. The textual
argument in August had a number of different sources. FC s 1(d) recognises universal adult
suffrage, a national common voters roll and a multi party system of democratic government to
ensure accountability, responsiveness and openness. Under the Constitution, there is a common
South African citizenship. All citizens are equally entitled to the rights privileges and benefits of
citizenship, and equally subject to the duties and responsibilities of citizenship. FC ss 3(1) and (2).
Section 3(3) requires legislation to determine the acquisition, loss and restoration of citizenship.
The Constitution does not define citizenship, but states that [n]o citizen may be deprived of
citizenship. FC s 20. In August the court was concerned with citizenship but offers no interpretation
of the right to citizenship set out in s 20. Citizenship is a contested concept. TH Marshalls'
influential conception of citizenship depicts it as a complex interplay of social, political and civil
rights. T Marshall Citizenship and Social Class (1950) extract reprinted in P Clark (ed) Citizenship
(1994) 173. These three components are adequately provided for in the Constitution. Under
Marshalls' account of citizenship, the political element means the right to participate in the
exercise of political power, as a member of a body invested with political authority or as an elector
of the members of such a body. See R Lister Citizenship: Feminist Perspectives (1997) 15-16. The
Constitution gives effect to this aspect of citizenship in s 19(3). It links all political rights, including
the right to vote, to citizenship. FC s 19(3) grants the right to vote for all legislative bodies to all
adult citizens. As the section stands, it must be read to include prisoners. To this end, the August
Court stated:

The achievement of the franchise has historically been important both for the acquisition of the
rights of full and effective citizenship by all South Africans regardless of race, and for the
accomplishment of an all-embracing nationhood. The universality of the franchise is important not
only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of
personhood. Quite literally it says that everybody counts.

August (supra) at para 16.

19 August (supra) at para 17.

20 Ibid at para 16.

imprisoned during the period of voter registration would be considered ordinarily
resident in prison.21

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After the Constitutional Courts' decision in August, Parliament amended s 7 of the

Electoral Act.22 The amendment states that a person is regarded as ordinarily
resident at the home or place where that person normally lives and to which that
person regularly returns after any period of temporary absence. The amendment
also states that a person is not regarded as ordinarily resident at a place where that
person is lawfully imprisoned or detained, but at the last home or place where that
person normally lived when not imprisoned or detained.

The matter of the prisoners' franchise was revisited before the 2004 national and
provincial elections. Parliament had amended the Electoral Act so as to rescind the
right to vote from convicted prisoners who were in prison without the option of a
fine.23 In Minister of Home Affairs v National Institute for Crime Prevention and the
Re-Integration of Offenders (NICRO), the Constitutional Court held that these
provisions that denied convicted prisoners serving sentences without the option of a
fine of the right to register for and to vote in elections during the period of
imprisonment were unconstitutional.24

In NICRO, the Constitutional Court, pointing out that in a justification analysis

facts and policy are intertwined, required the Minister of Home Affairs to justify a
legislative enactment limiting the right to vote.25 In NICRO the Court heard from
counsel that government had distinguished three classes of prisoners: (1) awaiting
trial prisoners who were entitled to be presumed innocent, (2) prisoners who had
been sentenced to a fine with the alternative of imprisonment, and who were in
custody because they had not paid the fine; and (3) prisoners incarcerated without
the option of a fine. Only the third group was to be excluded from registering and
voting. The government argued that since there were law-abiding citizens who were,
for various reasons, unable to get to registration and voting stations, then it was
both reasonable and justifiable to prefer to allocate its scarce resources for the
enfranchisement of such citizens to vote and rather than continued enfranchisement
of the third group of prisoners.26 Considerations of equity, and the perception that

21 Ibid at para 27.

22 See Schedule 2 to the Local Government: Municipal Electoral Act 27 of 2000.

23 Section 8(2) reads, in relevant part: 'The chief electoral officer may not register a person as a voter
if that person:(f) is serving a sentence of imprisonment without the option of a fine.' Section 24B(1)
reads, in relevant part: 'In an election for the National Assembly or a provincial legislature, a
person who on election day is in prison and not serving a sentence of imprisonment without the
option of a fine and whose name appears on the voters roll for another voting district, is deemed
for the for that election day to have been registered by his or her name having been entered on
the voters roll for the district in which he or she is in prison.' Section 24B(2) reads, in relevant part:
'A person who is in prison on election day may only vote if he or she is not serving a sentence of
imprisonment without the option of a fine.'

24 2004 (5) BCLR 445 (CC) ('NICRO').

25 NICRO (supra) at para 35.

26 Ibid at para 44.

the electorate would view the government as soft on crime were it to allow the
prisoners to vote, were also said to have animated the government's decision. 27

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With respect to the structure of the government's argument for restricting the
franchise of prisoners, the NICRO Court wrote:

Where justification depends on factual material, the party must establish the facts on
which the justification depends. Justification may, however, depend not on disputed
facts but on policies directed to legitimate government concerns. If that be the case the
party relying on justification should place sufficient information before the court as to
the policy that is being furthered, the reasons for that policy, and why it is considered
reasonable in pursuit of the policy to limit a constitutional right. 28

The Court then concluded that while resources cannot be ignored in assessing
whether reasonable arrangements have been made for enabling citizens to vote, the
mere assertion by the government that it could not afford to reach out to non-
incarcerated citizens at the same time as it continued to facilitate prisoner
enfranchisement did not satisfy the aforementioned standard of justification. 29 So
although the government had asserted that it would be costly and logistically
difficult30 to make the necessary electoral arrangements for prisoners, it had failed
to provide the court with sufficient information on the actual costs of such an
endeavour.31

With respect to policy, the Court rejected the governments desire to enhance its
image and to correct a public misconception as to its true attitude to crime as
grounds for the disenfranchisement of the third class of prisoners.32 The Court
assumed, for the sake of argument, that what the government actually intended to
convey was that it is important for [it] to denounce crime and to communicate to the
public that the rights that citizens have are related to their duties and obligations as
citizens.33 But even this argument, against the background of the the almost
tangential manner in which the government justified its policy arguments for the
disenfranchisement of the prisoners, could not save the challenged amendment. The
Court ordered the Electoral Commission and the Minister of Correctional Services to
ensure that all prisoners who were entitled to vote were

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afforded the opportunity to register as voters and to vote in the 2004 national and
provincial elections.34

27 Ibid at para 55.

28 NICRO (supra) at para 36.

29 Ibid at para 48.

30 Ibid at para 50

31 Ibid at para 49 (The factual basis for the justification based on cost and the lack of resources had
not been established.)

32 Ibid at para 57.

29.3 Election of the national and provincial legislatures
(a) Calling for Elections

The National Assembly and provincial legislatures are elected for a period of five
years.35 If the National Assembly is dissolved or if National Assemblys term expires,
the President must call for and set dates for an election that must be held within 90
days of the date of either the dissolution or term expiration. A proclamation calling
and setting dates for an election may be issued either before or after the expiry of
the term of the National Assembly. The election must take place on a single day
announced by the President after consultation with the Electoral Commission.

FC s 109 sets out a set of similar provisions applicable to the election of provincial
legislatures. The Premier calls for these elections.

The Electoral Commission may request that the person who called an election
postpone the voting day if is satisfied that such postponement is necessary for the
ensuring a free and fair election and that the voting day will still fall within the
period required by the Constitution or by national or provincial legislation. 36 If the
request is acceded to, the President or Premier, by proclamation or notice in the
Government Gazette, must postpone an election to a day determined by the
President or Premier. However, the new voting day must fall within the period
required by the Constitution or national or provincial legislation.37

(b) Composition of the National Assembly and Provincial

Legislatures

The National Assembly is elected to represent the people and to ensure government
by the people under the Constitution.38 It consists of 400 elected women and men.
They are elected in terms of an electoral system that is prescribed by national

33 Ibid at para 57. These duties and obligations include at least an obligation to respect the rights of
others and to comply with the law. Ibid at para 57. Embedded in the courts statement is a
conception of citizenship that it does not elaborate on. The balancing of rights and obligations are
essential to an understanding of the concept of citizenship. In relation to citizenship, Lister writes
'[f]ew would dispute that responsibilities as well as rights enter the citizenship equation. The
questions is what is the appropriate balance between the two and how does that balance reflect
power relations.' R Lister Citizenship: Feminist Perspectives (1997) 21. Besides saying that the
rights of citizenship under FC s 3 include the right to vote in elections and that the duties and
responsibilities include at least an obligation to respect the rights of others and to comply with the
law the court says nothing else about what citizenship under FC s 3 and FC s 20 might entail.
NICRO (supra) at para 24.

34 NICRO also had a bearing on the 2005 municipal elections. Section 7 of the Municipal Electoral Act
states that a person may vote only if registered as a voter on the certified segment of the voters
roll for a voting district which falls within the municipality. The compilation of the voters roll takes
place in accordance the provisions of s 8 of the Electoral Act. After NICRO, s 8(2)(f) was found to be
unconstitutional. Prisoners are now allowed to register to vote and should be allowed to vote in the
municipal elections.

35 FC ss 49(1) and 108(1).

36 Section 21(1) of the Electoral Act.

37 Ibid at s 21(2).
legislation39; is based on the national common voters roll; provides for a minimum
voting age of 18 years and results, in general, in proportional

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representation.40 An Act of Parliament must provide a formula for determining the

number of members of the National Assembly.41 This formula is set out in schedule 3
to the Electoral Act.

A provincial legislature should be elected according to an electoral system based

on the same principles applicable to the election of the National Assembly. It should
have between 30 and 80 members.42 Schedule 3 to the Electoral Act sets out the
formula for determining the number of seats held by parties in the provincial
legislatures.

In Premier of the Province of the Western Cape v The Electoral Commission, the
Constitutional Court found the number of seats in a provincial legislature provided
for in a provinces constitution would prevail over the number of provincial seats
determined by the Electoral Commission in accordance with schedule 3 to Electoral
Act.43 The Constitutional Court held that FC s 105(2) has no application to the
composition of a provincial legislature that is otherwise provided for in a provincial
constitution. If FC s 105(2) did not apply to said composition, then neither would any
legislation authorised by that section.44

The Constitution confers on a provincial legislature the power to make its own
provincial constitution.45 FC s 143(1) permits provincial legislatures to provide for
different legislative structures and procedures to those provided for in the default
provisions in chapter 6 of the Constitution.46 In Certification of the Constitution of the
Province of Kwa-Zulu Natal, the Constitutional Court had held that legislative and
executive structures and procedures did not relate to the fundamental nature and

38 FC s 42(3).

39 See schedule A to the Electoral Act 73 of 1993. The schedule was introduced by the Electoral Laws
Amendment Act 34 of 2003 and provides for a system of close-list proportional representation.

40 FC s 46(1).

41 See s 114 of the Electoral Act. The formulae referred to in sections 46(2) and 105(2) of the
Constitution are set out in schedule 3 to the Electoral Act.

42 FC s 105.

43 1999 (11) BCLR 1209 (CC) ('Premier of the Province of the Western Cape'). The factual background
of Premier of the Province of the Western Cape v The Electoral Commission is as follows. Before
the June 1999 election, the Electoral Commission determined that there would be 39 seats allotted
to the Western Cape legislature. However, the provinces constitution allowed for 42 seats. The
parties were unsuccessful in resolving the dispute and on an urgent basis approached the court for
a declaratory order. The respondents contended that the conflict between the provincial
constitution and national legislation was to be resolved in accordance with s 147 of the
Constitution.

44 FC s 105(2) provides that a provincial legislature consists of between 30 and 80 members and that
the number of members, which may differ among the provinces, must be determined in terms of
national legislation.
substance of the democratic State created by the Interim Constitution nor to the
substance of the legislative or executive powers of Parliament or government of the
provinces. In Certification of the Constitution of the Western Cape, the Constitutional
Court found that structures of the legislature or executive pertained to the
component parts of the legislature or the executive. With respect to these
component parts, a provincial constitution could depart from the default provisions.
Hence,

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a province could provide in its constitution that its legislative and executive
component parts could operate quite differently from those provided for in the
national Constitution. However, any difference would have to comply with FC s 143.
Section 143(2)(a) requires compliance with the founding values and the principles of
co-operative government. Section 143(2)(b) states that a provincial constitution may
not confer on a province any powers beyond those conferred upon it by the
Constitution. Read together Certification of the Constitution of the Province of Kwa-
Zulu Natal and Certification of the Constitution of the Western Cape lead to the
conclusion that the determination of the number of seats in a provincial legislature
pertained to a legislative structure and could therefore be addressed by a provincial
constitution.47

In Ex Parte Speaker of the Western Cape Certification Provincial Legislature: In re

Certification of the Constitution of the Western Cape, 1997, the Constitution Court
was asked to decide whether a provincial electoral system is a provincial structure
contemplated by FC s 143(1)(a).48 An electoral system provides a mechanism for
converting votes cast by the electorate to seats in an elected body. The degree of
correspondence between the number of votes cast and the seats won is determined
by the choice of electoral system. The system of proportional reprsentation provided
for in the provincial constitution of the Western Cape was not consistent with the one
provided for in Annexure A to Schedule 6 of the Final Constitution. The province
argued that an electoral system related to the structure of the provincial legislature.
Since it was allowed to provide for legislative structures different from those set out
in Chapter 6 of the Final Constitution, then it was similarly allowed to alter the
electoral system. The Constitutional Court dismissed this argument. The Court held
that when FC s 143 permits a provincial legislative structure different to that
provided for in FC Chapter 6, it envisages no more than a difference regarding the
nature and the number of the elements constituting the legislative structure. An
electoral system does not constitute one of these elements. It also has no effect on
the nature or the number of such elements.49 Hence, the provisions of the provincial
constitution that allowed for an electoral system that was predominantly based on

45 The scope of the constitution-making powers of the provinces was considered by the Court in Ex
parte Speaker of the KwaZulu-Natal Provincial Legislature: In re Certification of the Constitution of
the Province of Kwa-Zulu Natal 1996, 1996 (4) SA 1098 (CC), 1996 (11) BCLR 1419 (CC) and Ex
Parte Speaker of the Western Cape Certification Provincial Legislature: In re Certification of the
Constitution of the Western Cape, 1997 1998 (1) SA 655 (CC), 1997 (12) BCLR 1653 (CC) ('Speaker
of the Western Cape').

46 Premier of the Province of the Western Cape (supra) at para 9.

47 Given that there was no conflict between national legislation and the provisions of the provincial
constitution, the dispute resolution mechanism provided for in FC s 147(1)(a) did not apply.

48 1997 (4) SA 795 (CC), 1997 (9) BCLR 1167 (CC).

representation in geographic multi-member constituencies were held to be
inconsistent with the electoral scheme provided for in the Final Constitution

(c) The electoral system applicable to the national and provincial

elections

Item 6(3) of Schedule 6 to the Final Constitution sets out a variety of transitional
arrangements. It states that:

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Despite the repeal of the previous Constitution, schedule 2 to that Constitution, as
amended by Annexure A to this schedule, applies:

(a) to the first election of the National Assembly under the new Constitution;

(b) to the loss of membership of the Assembly in circumstances other than those
provided for in section 47 (3) of the new Constitution; and

(c) to the filling of vacancies in the Assembly, and the supplementation, review and
use of party lists for the filling of vacancies, until the second election of the
Assembly under the new Constitution.

Schedule 2 to the Interim Constitution (as amended by Annexure A to schedule 6 to

the 1996 Constitution) sets out the details of the closed-list proportional
representation system that applied to the 1994 and 1999 national and provincial
elections. Item 11(1) of schedule 6 contains similar provisions relating to the election
of the provincial legislatures.

During the 1994, 1999 and 2004, national and provincial elections in South Africa
relied on a system of closed-list proportional representation (PR). Under this system,
a political party receives a share of seats in a legislature in direct proportion to the
number of votes cast for the party in the election.

There is no constitutional or legislative provision that extended the closed-list

proportional representation system beyond 1999. After the 1999 elections, South
Africa experienced the unusual situation of not having in place an electoral system
applicable to national and provincial elections. An amendment to the Electoral Act in
2003 corrected the situation.50 The Act constitutes the national legislation
contemplated by ss 46(1) and 105(1). Schedule 1A of the Electoral Laws Amendment
Act 34 of 2004 sets out the closed-list PR system applicable to future elections.

Under this system political parties compile lists containing the names of the
candidates they have nominated. The parties rank their candidates in order of
preference, with the leader of a party topping its list. The lists are closed. That is, a
voter is not able to express with his or her vote any preference for a particular
candidate on the list over another. The essence of the system is that the proportion
of all the votes cast for a party is translated into a proportionate number of seats in
the legislature. All votes are equally weighted and no votes are wasted. The system
is valued for its simplicity. Voters make a mark next to the name and symbol of the
party for which they wish to vote.

49 Speaker of the Western Cape (supra) at para 48.

50 See Schedule 1A to the Electoral Act 73 of 1998 introduced by the Electoral Laws Amendment Act
34 of 2004.
 An important feature of this system is that the seat held by a member of a
legislature belongs to the party that nominated the candidate and not to an
individual candidate.51 Another feature of the electoral system is its inclusiveness. It

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requires no minimum threshold of votes to secure representation in a legislative

body. The system is capable of accommodating a wide spectrum of political parties
representing a range of voters interests.52

Compared to constituency-based systems, closed-list PR more readily enables

higher levels of womens representation in legislative bodies. One reason advanced
for this outcome is that the electorate is required to vote for a party rather than for
an individual. It is argued that voting in this manner allows voters and parties to
overcome the negative stereotyping of women in politics. Of course, party lists only
increase the chance of female representation in legislatures when women appear in
winnable places on a partys list.53

South Africas closed-list PR electoral system is often criticised for falling short on
accountability. According to one definition political accountability refers to the
constraint placed on the behaviour of public officials by organisations and
constituencies with the power to apply sanctions to them.54 Lodge notes that under
South Africa's electoral system, elected representatives are directly accountable to

51 See Speaker of the National Assembly v Makwetu 2001 (3) BCLR 302, 308 (C)(Hlope JP and Davis J
held that the amount of seats allocated to each party was dependent on the votes cast in favour of
such party at the general election. Once a member of the National Assembly ceased to be a
member of a particular political party, that party was entitled to fill the vacancy by nominating a
person whose name appeared on the list of candidates from which the vacating member was
originally nominated and who was the next qualified and available person on the list.)

52 See United Democratic Movement v President of South Africa 2003 (1) SA 495 (CC), 2002 (11)
BCLR 1213 (CC) ('United Democratic Movement'). The Court wrote that a multi-party system of
democratic government required by FC s 1(d):

. . . clearly excludes a one-party state, or a system of government in which a limited number of

parties are entitled to compete a multi-party democracy contemplates a political order in which it
is permissible for different political groups to organise, promote their views through public debate
and participate in free and fair elections. These activities may be subjected to reasonable
regulation compatible with an open and democratic society. Laws which go beyond that, and which
undermine multi-party democracy, would be invalid. What had to be decided, therefore, was
whether the disputed legislation had this effect.

53 In South Africas 1994 and 1999 elections the percentage of women in the National Assembly was
27 per cent and 30 per cent respectively. High levels of womens representation are more likely to
occur when closed-list PR is used along with a quota that favours women candidates. For example,
the ANCs policy in 1994 and 1999 made women one third the candidates on its list. See J
Ballington 'Political Parties, Gender Equality and Elections' in South Africa in G Fick, S Meintjes & M
Simons (eds) One Woman, One Vote: The Gender Politics of South African Elections (2002) 75-102.
In 2004, the ANC increased the number of women candidates on its lists to 40 per cent. After the
2004 elections women now hold 123 of the 400 seats (31 per cent) in the National Assembly. It is
unclear how many women voters voted for parties which reflected their interests and which
promoted gender equality and non-sexism. It is also worth noting that SADC Heads of State signed
the Gender and Development Declaration in Blantyre, Malawi in 1997. The Declaration's provisions
include a commitment on the part of Heads of State to ensure the equal representation of women
and men in the decision-making of member states and SADC structures at all levels, and the
achievement of at least 30 per cent target of women in political and decision-making structures by
year 2005. The ANC has made a public commitment that by 2009 half of its members of
parliament and other public representatives would be women.
their leaders, not the electorate.55 PR lacks the responsiveness and accountability
that exists in the constituency-based system.56

The electoral system received the attention of the government appointed

Electoral Task Team (ETT) in 2002. In order to address the lacuna in South Africa's
constitutional and electoral law mentioned earlier, the ETT's brief was to prepare
draft legislation for an electoral system that would meet the requirements of FC ss
46(1)(a)-(d) and 105(1)(a)-(d). These sections require that national legislation

OS 06-04, ch29-p12

prescribes an electoral system that is based on the national common voters' roll;
that provides for a minimum voting age of 18 years; and that results, in general, in
proportional representation. FC s 46(2) requires an act of Parliament to provide a
formula for determining the number of members in the National Assembly. FC
Section 105(2) governs membership in provincial legislatures.

The ETT reviewed the closed-list PR system that had applied to the 1994 and
1999 national and provincial elections. All members of the ETT recommended that
this electoral system apply to the 2004 election.

A minority of ETT members proposed no changes to the electoral system. Under

this system, of the 400 members in the National Assembly, 200 are elected from the
national lists and 200 from the regional lists submitted by political parties. The
regional lists are derived from the nine provinces.57

The majority of ETT members proposed a change to the electoral system for the
2009 national and provincial elections. It took the view that under the 1994 and
1999 electoral system, each of the nine provinces could readily be regarded as a
multi-member constituency. In its view, the number of multi-member constituencies
could be increased if the each of the provinces was broken down into smaller
constituencies.58 It was proposed that the nine multi-member constituencies be
increased to 69 multi-member constituencies countrywide. The number of
representatives to be elected in each of these constituencies would vary from 3 to 7
depending on the number of registered voters in a constituency. Of the 400
members in the National Assembly, 300 would be elected from closed party lists
applicable to the 69 multi-member constituencies and 100 members would be
elected from the national lists. The national lists would be used to achieve overall
proportionality.

54 PIMS & The Right to Know Programme Regulation of Private Funding to Political Parties IDASA
Position Paper (October 2003) 10.

55 T Lodge 'How the System Works' Election Update (South Africa) Number 1 (February 2004) 2.

56 Ibid.

57 Item 25 of schedule 2 to the Interim Constitution defines a region as the territorial area of a
province and defines a regional list as a party's list of candidates for the election of the National
Assembly.

58 The boundaries of the constituencies would be those of district councils and metro councils and the
same outer boundaries wold apply for national, provincial municipal elections. No constituency
boundary would transcend a provincial boundary and electoral demarcation would not be required.
See Report of the Electoral Task Team (2003) 23.
 This proposal for closed-list PR in multi-member constituencies was driven by
concerns about accountability and a desire to establish a closer link between the
voter and his or her representative. The majority of the ETT was of the opinion that
[g]iven that the lists [would] be short and that candidates [would] have to campaign
in their constituencies and represent them afterwards, there will clearly be a face to
representation and a much closer link with the electorate than is presently the
case.59 The ETT's majority did not advocate a parallel system or a mixed member
proportional (MMP) system. That is, it does not call for single-member constituencies
in which members of the National Assembly would be elected on a first-past-the-post
basis accompanied by a compensatory closed national list. It remains to be seen
whether the recommendations of the majority of members of the ETT will be
debated in Parliament at some point in the future.

OS 06-04, ch29-p13

(d) Floor-crossing and Electoral Systems

The Final Constitution now allows for floor crossing in legislatures in the three
spheres of government.60 A vexing question is whether there is a need for a move
towards a PR system applicable to the election of representatives in the national and
provincial legislatures that more readily accommodates floor-crossing than closed-
list PR does. While not as responsive as a first-past-the-post single-member
constituency system, closed-list PR in multi-member constituencies still require
elected officials to answer to identifiable constituencies.61

In United Democratic Movement v President of South Africa 62 the court alluded to

the awkwardness of allowing floor crossing under a (closed-list) proportional
representation in the following terms:

There is a closer link between the voter and party in proportional representation
systems than may be the case in constituency-based electoral systems, and that for
this reason the argument against defection may be stronger than would be the case in
constituency-based elections. But even in constituency-based elections, there is a close
link between party membership and election to a Legislature. Floor-crossing, in the
absence of a meaningful link between the voter and the political party he or she votes
for under a closed list PR system, has the potential to make a relatively unresponsive
system even less responsive.63

59 Ibid at 25.

60 Constitution of the Republic of South Africa Amendment Act 2 of 2003.

61 Report of the Electoral Task Team (supra) at 26 (Closed-list PR in multi-member constituencies

increase the the degree of accessibility and responsiveness between voter and representative.)

62 2003(1) SA 495 (CC), 2002 (11) BCLR 1213 (CC) ('United Democratic Movement').

63 United Democratic Movement (supra) at para 34. In this paragraph the Court was referring to a
first-past-the-post or majoritarian constituency-based system in which there are single-member
constituencies. See A Reynolds & B Reilly 'Proportional Representation Systems' in The
International IDEA Handbook of Electoral System Design (1997) 66 (Of closed-list PR systems
generally, the authors write: Voters have no ability to determine the identity of the persons who
will represent them, and [have] no identifiable representative for their own town, district or village,
nor do they have the ability to easily reject an individual if they feel that he or she has behaved
poorly in office.')
(e) Membership in the national and provincial legislatures

Every citizen who is qualified to vote for the National Assembly is eligible to be a
member of the Assembly.64 There are several exceptions to this

OS 06-04, ch29-p14

rule.65 Any disqualification contemplated by FC s 47(1)(e) ends five years after the
sentence has been completed.66 In addition, a person who is not eligible for
membership of the National Assembly on the grounds mentioned in s 47(1)(a) or (b)
may be a candidate for the Assembly, subject to any limits or conditions established
by national legislation.67 Similar qualifications and exceptions apply in relation to
membership in provincial legislatures. 68

A person loses membership of the National Assembly if he or she ceases to be

eligible, or is absent from the Assembly without permission in circumstances for
which the rules and orders of the Assembly prescribe loss of membership. 69 After a
recent amendment to FC s 47(3(c), a person loses membership of the National
Assembly if he or she ceases to be a member of the party that nominated him or her
as a member of the National Assembly, unless he or she has become a member of
another party.70 This scenario was made possible after the introduction of Schedule
6A to the Final Constitution and the lifting of the prohibition on floor crossing in the
national and provincial legislatures. The provisions of Schedule 6A are discussed
below.

64 FC s 47(2). B Van Heerden, A Cockrell and R Keightley (eds) Bobergs' Law of Persons and the
Family (2nd Edition 1999) (The authors point out that '[i]n as much as minors who have attained
the age of 18 years are eligible for nomination as candidates for election to the National Assembly,
the National Council of Provinces and a provincial legislature, it seems that such minors would
have locus standi in proceedings relating to their candidacy'). See FC s 47(1) read with FC s 46(1)
(c), and FC s 62(1) read with FC s 106 (1).

65 See FC s 47(1)(a)-(e).

66 FC s 47(1)(e). Grounds for disqualification include anyone who is appointed by, or is in the service
of the state and receives remuneration for that appointment or service other than the President,
Deputy President, Ministers and Deputy Ministers. The exceptions to the rule include other office-
bearers whose functions are compatible with those of a member of the Assembly, and have been
declared compatible with those functions by national legislation, permanent delegates to the
National Council of Provinces or members of a provincial legislature or Municipal Council and
extend to un-rehabilitated insolvents, anyone declared to be unsound mind by a South African
court or anyone who, after the coming into effect of the section, is convicted of an offence and
sentenced to more than 12 months' imprisonment without the option of a fine, either within or
outside of South Africa if the conduct constituting the offence would have been an offence in South
Africa. No one may be regarded as having been sentenced until an appeal against the conviction
or sentence has been determined, or until the time for an appeal has expired.

67 FC s 47(2).

68 FC s 106.

69 FC s 47(3)(a) and (b).

70 Constitution of the Republic of South Africa Amendment Act 2 of 2003.

 The Final Constitution requires that vacancies in the National Assembly and
provincial legislatures be filled in terms of national legislation. 71 The filling of
vacancies in both legislative bodies is now covered by item 23 of schedule 1A to the
Electoral Act. In the event of a vacancy in a legislature, the party which the vacating
member represented must fill the vacancy by nominating a person whose name
appears on the list of candidates from which the party's members were originally
nominated and who is the next qualified and available person the list.

(f) Floor-crossing in the national and provincial legislatures

Item 23(A) of Annexure A to schedule 6 to the Final Constitution provided:

OS 06-04, ch29-p15
(1) A person loses membership of a legislature to which this schedule applies if that
person ceases to be a member of the party which nominated that person as a
member of the legislature.

(2) Despite sub-item (1) any existing political party may at any time change its
name.

(3) An Act of Parliament may, within a reasonable period after the new Constitution
took effect, be passed in accordance with section 76(1) of the new Constitution to
amend this item and item 23 to provide for the manner in which it will be possible
for a member of a legislature who ceases to be a member of the party which
nominated that member, to retain membership of such legislature.

(4) An Act of Parliament referred to in sub item (3) may also provide for:

(a) any existing party to merge with another party; or

(b) any party to subdivide into more than one party.

The constitutional framework created by the above provisions was altered after a
series of political realignments in the Western Cape. The initial realignment was the
result of the withdrawal of the NNP from the Democratic Alliance. Later on all parties
seized upon the possibility of creating mechanisms for such realignments that might
help them shift the political landscape in their own favour.

In June 2002 Parliament passed two amendments to the Constitution and two Acts
of Parliament aimed at allowing members of national, provincial and local
government legislatures to defect or to cross the floor. The Acts were:

(a) the Constitution of the Republic of South Africa Amendment Act 18 of

2002 (the First Amendment Act);

(b) the Constitution of the Republic of South Africa Second Amendment Act
21 of 2002 (the Second Amendment Act);

(c) the Local Government: Municipal Structures Amendment Act 20 of 2002

(the Local Government Amendment Act); and

(d) the Loss or Retention of Membership of National and Provincial

Legislatures Act 22 of 2002 (the Membership Act).

In short, the four Acts allowed members of the National Assembly, the provincial
legislatures and local government to cross the floor or to form new parties without
loss of their membership. That is, a member of the National Assembly or a provincial

71 FC s 47(4).
legislature or local government could change parties while retaining his or her seat.
The First Amendment Act and the Local Government Amendment Act both related to
floor crossing in the local government sphere. The Second Amendment Act and the
Membership Act related to floor crossing in the National Assembly and provincial
legislatures. The Membership Act removed the constitutional prohibition on floor
crossing. The United Democratic Movement and other parties challenged the suite of
floor crossing legislation in United Democratic Movement v President of South
Africa.72

OS 06-04, ch29-p16

One leg of the applicant's argument was that an anti-defection provision was an
essential component of an electoral system based on proportional representation.
This argument did not emphasise that South Africas electoral system was a closed-
list system. There are other PR systems such as those that rely on open lists or have
a majoritarian element which more readily accommodate floor crossing. The
electoral system applicable to South Africas local government elections is an
example of the latter.

The applicants regarded an anti-defection provision as necessary to ensure that

the results of an election would not be affected by the defection of persons who
gained their seats in a legislature solely because of their position on the party list.
The applicants correctly pointed out that it is the party, and not the members, which
is entitled to the seats. Addressing the relationship between voters and their elected
representatives the United Democratic Movement Court observed that '[t]here is a
tension between the expectation of voters and the conduct of members elected to
represent them.'73 It then quoted from its holding in the First Certification Judgment:

Under a list system of proportional representation, it is parties that the electorate votes
for, and parties which must be accountable to the electorate. A party which abandons
its manifesto in a way not accepted by the electorate would probably lose at the next
election. In such a system an anti-defection clause is not inappropriate to ensure that
the will of the electorate is honoured. An individual member remains free to follow the
dictates of personal conscience. This is not inconsistent with democracy.

. . . An anti-defection clause enables a political party to prevent defections of its elected

members, thus ensuring that they continue to support the party under whose aegis
they were elected. It also prevents parties in power from enticing members of small
parties to defect from the party upon whose list they were elected to join the governing
party. If this were permitted it could enable the governing party to obtain a special
majority which it might not otherwise be able to muster and which is not a reflection of
the views of the electorate (emphasis added).74

The court recognised that requiring a member of a legislature to resign if he or she

changes party allegiance during the life of the legislature though possibly desirable

72 2003 (1) SA 495 (CC), 2002 (11) BCLR 1213 (CC). See also United Democratic Movement (supra)
and President of the Republic of South Africa v United Democratic Movement 2003 (1) SA 472
(CC), 2002 (11) BCLR 1164 (CC) (Addressed the issuing of interim orders by the High Court and
Constitutional Court respectively.)

73 United Democratic Movement (supra) at para 31.

74 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the

Republic of South Africa 1996 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC) (First Certification
Judgment) at paras 186-187.
cannot be implied as a necessary adjunct to a proportional representation system 75
However, the Court's description of the electoral system as a proportional
representation system is not sufficiently precise. The system in South Africa is, as we
have seen, a closed-list proportional representation in which a party receives a
number of seats in a legislature in proportion to the total number of votes it receives
in an election. The Court correctly noted that '[a]lthough voters might have been
influenced by the names of candidates, and possibly their place on the list, they
voted for parties and not for particular candidates.'76

OS 06-04, ch29-p17

As we have already seen, South Africa's closed-list proportional representation

system is but one of many systems of proportional representation. Moreover, a
number of other proportional representation systems – for example, the mixed
member proportional (MMP) representation system – that possess features of
majoritarian and list proportional representation that more readily accommodate
floor crossing.77 In these other systems, lists compensate for any disproportionality
in party support brought about by voting in constituencies or wards.

The Final Constitution itself implicitly recognises the variety of PR systems. IC s

46(1) of the Constitution requires a system that results, in general, in proportional
representation. Reynolds and Reilly note that the rationale underpinning all
proportional representation systems is to consciously reduce the disparity between a
party's share of the national vote and its share of the parliamentary seats. 78 The
system relied on in South Africa's 1994 and 1999 elections results in pure
proportional outcomes.79 However, Parliament has a range of options under FC s
46(1). A closed list PR system with pure proportional outcomes would meet this
requirement, but so would a system which had an overall (or general) outcome of
proportionality.

In United Democratic Movement, the Constitutional Court did not emphasise the
features of a closed-list PR system. In United Democratic it simply reiterated the
view expressed in First Certification Judgment that it did not follow that a
proportional representation system without an anti-defection clause is inconsistent
with democracy.80 To what aspect of democracy was the Court referring? At a
minimum, the judgment should have engaged directly the coherence of allowing
floor crossing in a closed list PR system in which representatives could not, at the
time of their election, defect.

75 United Democratic Movement (supra) at para 35.

76 Ibid at para 37.

77 Under the MMP system in Lesotho the 40 members on the compensatory seats (those coming from
party lists) are not allowed to cross the floor while those members elected in constituencies can do
so. See J Elklit 'Lesotho 2002: Africas first MMP elections' (2002) 1(2) Journal of African Elections 4.

78 Reynolds & Reilly (supra) at 19.

79 M Krennerich Electoral Systems: A Global Overview in J de Ville & N Steytler (eds) Voting in 1999:
Choosing an Electoral System (2000) 12.

80 Ibid at para 34.

 For reasons that are not entirely clear, the United Democratic Movement Court
seemed less inclined to recognise the importance of the will of the electorate than in
the First Certification Judgment. It was likewise uninterested in assessing the
aptness of the provisions of the Membership Act for the existing closed list PR

OS 06-04, ch29-p18

system. It is true that item 23A granted Parliament the power to amend the
provisions of the Final Constitution by an Act of Parliament (the Membership Act)
under FC s 76(1). It is also true that the purpose of the legislation was to make
provision for members of the national and provincial legislatures to change their
political parties without losing their seats in the legislature. However legitimate the
textual authority for this legislation may be, it creates an anomalous situation under
a system of closed-list PR. So while the Constitutional Court could not take issue with
Parliament's power to do what it did, it had an obligation to press down on the
tension between floor-crossing and a closed-list PR system. Its lack of engagement
with such issues is reflected in the following two remarks: :

Where the law prohibits defection that is a lawful prohibition, which must be enforced
by the courts. But where it does not do so, the courts cannot prohibit such conduct
where the legislature has chosen to do so.81

....

We were referred in argument to a number of democratic countries with proportional

representation systems in which defection is not allowed. No case was cited to us,
however, in which a court in any country has ever held that, absent a constitutional or
legislative requirement to that effect, a member of the legislature is obliged to resign if
he or she changes party allegiance during the life of a legislature. 82

A deeply reasoned judgment on the electoral system offering an opinion on the

relationship between voters and their representatives in South Africas democracy,
even if obiter, would have provided valuable guidance to Parliament when it
reconsidered the Membership Act after the Courts finding of unconstitutionality Such
analysis might have deterred the raw political expediency which drove the
legislature to turn the Membership Act into a constitutional amendment less than
two years before the 2004 national and provincial elections.

Prior to 2002, and the run-up to the next elections, Parliament had showed little
inclination to take up the Final Constitution's invitation to change our electoral
system. In fact, a parliamentary committee appointed in 1997 had reported that
floor-crossing in the context of the closed-list system was not fair or democratic and
recommended that Parliament should not make use of the option given to it by the
Constitution.83 At the time, the ANC agreed. It took the view that:

Parties are represented in the legislatures, on the basis of party lists, in proportion to
the votes they had received in elections Our system does not provide scope for the role
of an independent individual MP or of a group of MPs not directly elected by votes on
the basis of a party list There are many difficulties with the qualified right to cross the
floor The crucial problem here is that it is difficult to establish what constitutes a

81 First Certification Judgment (supra) at para 35.

82 Ibid.

83 See Report of the Natinal Assembly's Ad hoc Committee on Membership of Legislatures (25 May
1998).
 significant shift in public opinion, when such shift has occurred and to what extent the
desire of a group of MPs to defect, reflects this shift. More fundamentally, if there has
been a significant shift, surely the answer is fresh elections?

OS 06-04, ch29-p19

By 2002, the ANC had changed its tune. Unfortunately for the party, the
Constitutional Court concluded that the Membership Act, passed by Parliament more
than five years after the Final Constitution came into effect and was not passed
within a reasonable period. The United Democratic Movement Court held that the FC
s 76 procedure was an option only during the reasonable period stated in item 23A,
and that having expired, the amendment of the Final Constitution in a manner not
contemplated or sanctioned by the Final Constitution itself, was invalid. 84

29.4 The constitution amendment act 2 of 2003

After the Constitutional Court's decision in United Democratic Movement, Parliament
passed the Constitution Amendment Act 2 of 2003. The Amendment Act repeals The
Loss or Retention of Membership of National and Provincial Legislatures Act 22 of
2002. It introduces a new schedule 6A to the Final Constitution.

The schedule stipulates that a member of the legislature who becomes a member
of a party other than the party which nominated that person remains a member of
that legislature if the member on his or her own or together with one or more other
members (who ceased to be members of a party that nominated them) represent
not less than 10 per cent of the total number of seats held by the nominating party
in the legislature.85 (These provisions apply whether the party of which a person
becomes a member participated in an election or not. The seat held by a member is
regarded as having been allocated to the party that an individual joins (the party
which did not nominate the member). Ceasing to be a member of the party that
nominated an individual must take place in the time periods specified in item 4(1)(a)
or (b) of the schedule. The provisions of item 2 apply for fifteen days from the first to
the fifteenth day of September in the second year after an election of the legislature
and for a period of fifteen days during the same period in September in the fourth
year after an election of the legislature.

Any party represented in a legislature is permitted to merge with another party. 86

It does not matter whether the latter participated in an election or not. Furthermore,
any party may subdivide into more than one party.87 After a sub-division, any party
may merge with another party whether the latter participated in an election or not.
After a sub-division, members leaving their original party must represent not less
than 10 per cent of the total number of seats held by the original party in any
legislature. The time periods set out in item 4(1)(a) and (b) also apply to item 3.

OS 06-04, ch29-p20

84 United Democratic Movement (supra) at para 113.

85 Item 2(1).

86 Item 3(1)(a).

87 Item 3(1)(b).
 If there is a merger of parties or a sub-division or subdivisions and merger of
parties contemplated in items 3(1)(a) and (b), the members retain membership of
the legislature to which they were elected and the seats they held are regarded as
having been allocated to the party which they represent after any merger,
subdivision or subdivision and merger envisaged under item 3(1). During the periods
referred to in items 4(1)(a) and (b) a member of the legislature may change
membership of a party on one occasion only. Similarly, during the periods referred to
in items 4(1)(a) and (b) a party may merge with another party, subdivide into more
than one party or subdivide and merge with another party on one occasion only.
Within seven days after the expiration of a period mentioned in item 4(1)(a) or (b) a
party represented in the national Assembly or a provincial legislature must submit a
list of its members to the secretary of the legislature.88 The number of seats held by
each party represented in that legislature and the name of and party represented by
each member will be published in the Government Gazette.

The provisions of items 2 and 3 of schedule 6A allow parties representation in the

national and provincial legislatures without requiring them to contest an election.
Members of political parties who are elected under the aegis of one political party
and after crossing the floor or after the merger and/or subdivision of parties may end
up representing a different party. The result is that new parties may acquire
representation between elections.

Who do the members of new parties represent? They would have been elected by
voters supporting the party that nominated them as electoral candidates. The seats
they retain would be seats that belonged to the party that nominated the member or
members and which were allocated to a party based on the electorates support for
that party. When a member ceases to be a member of the nominating party, the
provisions in items 2 and 3 permit a member to transfer the seat of his or her
original party to a different or new (non-elected) party in a legislature.

No party represented in a legislature may suspend or terminate the party

membership of any one of its members representing it in that legislature without the
written consent of the member concerned.89 Furthermore, a party may not perform
any act which causes a member to be disqualified from holding office as a member
without the written consent of the member concerned.90 A party that does not
register as a political party under the Electoral Act 73 of 1998 may still be regarded
as a party for purposes of schedule 6A. However, the party must register as a
political party within the periods set out in items 4(1)(a) and (b). If it fails to do so
within four months after the expiration of these periods, the party will cease to exist.
In these circumstances the affected seats are to be allocated to the remaining
parties in accordance with applicable law.

During the first fifteen-day period following the date of the commencement of
schedule 6A, members of the National Assembly and the provincial legislatures

OS 06-04, ch29-p21

were allowed to become members of political parties which had not nominated them
while retaining their seats in a particular legislature. The schedule also allowed party

88 Item 5(2).

89 Item 4(3)(c)(i).

90 Item 4(3)(c)(ii).
mergers and the subdivision of parties. In these situations members were allowed to
hold their seats and the seats were regarded as seats belonging to the members
new party and not the one which, in the first place, had nominated the members.

Schedule 6A contains provisions which recognise the reality of party politics.

Members of political parties become disgruntled with their parties. The provisions
permit them to shift allegiance to a party whose policies are more aligned with their
own. The provisions also accommodate situations in which a political party splits
because of differences in opinion between groups or factions in a party. New parties
may be formed through subdivisions and mergers. That said, the tension between
floor-crossing and closed list PR remains. The will of the electorate expressed at the
time of an election – for parties and their policies – morphs into the will of the
individual representatives and the parties and policies for whom they express a
preference.

29.5 Funding of political parties in the national and

provincial legislatures
FC s 236 states that to enhance multi-party democracy, national legislation must
provide for the funding of political parties participating in national and provincial
legislatures on an equitable and proportional basis. The national legislature passed
the Public Funding of Represented Political Parties Act in accordance with this
constitutional directive.91 The Act established the Represented Political Parties Fund.
The fund making provisions for already-elected political parties participating in
Parliament and provincial legislatures rather than those who aspire to participate in
the multi-party government envisaged by the Final Constitution.92 The chief electoral
officer of the Electoral Commission manages the Fund and serves as the accounting
officer and chief executive officer of the Fund.93 Allocations from the fund cover
activities related to: developing of the popular will of the people; bringing a political
party's influence to bear on the shaping of public opinion; inspiring and furthering
political education; promoting active participation by individual citizens in political
life; exercising and influence on political trends; and ensuring continuous, vital links
between the people and organs of state.

Aspirant political parties and those who already have representation in South
Africas legislative bodies may receive unlimited and unconditional funding from
private sources. No legislative framework similar to that applicable to public funding
is in place. There is therefore no mechanism to control the impact of

OS 06-04, ch29-p22

such funds on a political party's policies and on what they include in their
manifestos. In the absence of any legislative framework the electorate cannot know
or easily obtain information on where political parties derive their funding from. The
electorate is unable to form an opinion on the measure of influence brought to bear
upon a political party by a private donor. Such unregulated funding creates
incentives for corruption.

91 Act 103 of 1997.

92 Section 2(1) of the Public Funding of Represented Political Parties Act 103 of 1997.

93 Ibid at s 4(1).
 IDASA has launched a campaign to promote greater transparency by political
parties. It uses the Promotion of Access to Information Act to elicit documentation
about the source of their private political party funding. Political parties represented
in the legislatures are required by the Act to provide details of any private funding
over R50,000.00. IDASA makes the compelling argument that regulation of party
funding will strengthen democracy, curb opportunities for corrupt practices and
promote several constitutionally enshrined rights.94

29.6 Election of municipal councils

The Municipal Electoral Act 27 of 2000 regulates municipal elections. The
Constitution and the Local Government: Municipal Structures Act 117 identify three
categories of municipality95: A, B and C.96 Municipal councils consist of members
elected in accordance with the electoral options set out in FC s 157(2). They are
elected for terms of five years.97 Whenever necessary, the Minister, after consulting
the Electoral Commission, must, by notice, call and set dates for an election of all
municipal councils. The election must be held within 90 days of the date of the
expiry of the term of municipal councils.98

(a) The electoral system applicable to municipal elections

The Constitution envisages an electoral system based on closed-list proportional

representation and reliant upon that municipality's segment of the voters roll. 99 It
also provides for an alternative of a semi-proportional system made up of a
component of proportional representation and representation on a ward basis, based
on that municipalitys segment of the voters roll.100 The electoral system

OS 06-04, ch29-p23

applicable to local government elections must result, in general, in proportional

representation.101

94 PIMS & The Right to Know Programme Regulation of Private Funding to Political Parties IDASA
Position Paper (October 2003) 4.

95 Several sections of the Local Government: Municipal Structures Act 117 of 1998 were challenged in
Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development,
Executive Council, Kwa Zulu- Natal v President of the Republic of South Africa 2000 (1) SA 661
(CC), 1999 (12) BCLR 1360 (CC).

96 Section 7 of the Municipal Structures Act lists several types of municipality.

97 Section 24 of the Municipal Structures Act.

98 Ibid.

99 FC s 157(2)(a).

100 FC 157(2)(b).

101 FC 157(3).
 The Municipal Structures Act 117 of 1998 provides for a system that allows for
semi-proportional representation. This type of semi-proportional system is often
favoured in new democracies. It generally benefits from the broad representation of
parties that accompanies voting under a closed-list proportional representation
system. It possesses direct accountability.102 A system that combined proportional
representation (PR) and voting in wards on a first-past-the-post basis was employed
in the local government elections in 1995 and 1996. In that election, voters cast
their ballots for councillors on a 40% PR and 60% ward basis. In this parallel system
the proportional representation and first-past-the post elements operated separately
from each other. Currently these elements are combined in a mixed member
proportional (MMP) system. Under this system, 50% of the councillors represent
wards and the other 50% are elected by PR. The difference between a parallel
system and a mixed member proportional system is that the latter allows for the
adjustment of distortions to party representation brought about by voting in wards
on a first-past-the-post basis. The former does not. This change to the system was
necessary.103 After the 1995-96 local government elections – for which there was no
demarcation process – residents in the formerly White, Coloured and Indian areas
were over-represented in the 843 transitional councils. The number of councils was
reduced to 284 for the 2000 elections. The new demarcation process ensured that
wards consisted of the roughly the same population size.104 The introduction of the
current system allows for an increase in the number of councillors elected by
proportional representation.

The Municipal Structure Act provides that a metro council (a municipal council of
a metropolitan municipality or category A municipality) and a local council
(municipal council of a local municipality or category B municipality) with wards
must be elected according to a system of proportional representation from party lists
and direct representation from wards. In an election for a metropolitan or local
council with wards, each registered voter has two votes, one for a party, by
proportional representation, and one for a ward candidate. If a local council has no
wards, all the councillors must be elected from the party lists according to a system
of proportional representation. In an election for a local council that has no wards,
each registered voter has two votes, one for the local council and one for the district
council. If a local council has wards, councillors must be elected from the party list
according to a system of proportional representation and direct representation for
the wards.

OS 06-04, ch29-p24

Importantly, district councils (municipal councils of a district municipality or

category C municipality) may be comprised of representatives elected from party
lists by registered voters in local councils, with or without wards and voters
registered in a district management area. Sparsely populated or mountainous areas
and game parks would be classified as district management areas. If a voter is
registered in a local council with wards he or she will have a third vote in respect of a

102 Ministry for Provincial Affairs and Constitutional Development The White Paper on Local
Government (March 1998) 88. (This type of system has two excellent features, namely, an element
of representivity – the proportional matching of council seats with votes cast, and an element of
accountability – the identification of individual councillors to particular wards).

103 See T Lodge 'Local Government Reform' in Politics in South Africa: From Mandela to Mbeki (2002)
86-100.

104 See Local Government: Demarcation Act 27 of 1998.

40 per cent proportional representation election of the district council in which area
the local council (with wards) is located. Registered voters in district management
areas will have two votes, one for the representative in the district management
area, and one for the district council.

Sixty per cent of the seats in district councils will be allocated on the basis of
proportional representation to the candidates from the district management areas
and representatives elected to the district council from the local councils. The
Municipal Structures Act contemplates that local council elections will take place
first. Thereafter representatives from these councils, in an internal election, will be
nominated and elected to the district council. The remaining 40 per cent of the seats
will be allocated to those proportional representation candidates voted onto the
district council by registered voters.

Political parties who have complied with the registration requirements can contest
an election by submitting a list of the names of candidates to stand as its
representatives for the election of members of the council or by nominating ward
candidates to stand a representatives of the party in a ward; or may comply with
both of these requirements.105 Item 11(3) of schedule 1 of the Municipal Structures
Act that every party must seek to ensure that women and men candidates are
evenly distributed throughout the list.

In this regard, item 11(3) is distinguishable from s 26 of the Electoral Act 73 of

1998. Each requires the submission of lists of candidates under an electoral system
that relies on closed-list proportional representation. Item 11(3) does more than s 26
to ensure the participation of women in local government elections, but only just. It
does not place a clear obligation on political parties to ensure that women
candidates are included on party lists when it states [e]very party must seek to
ensure that fifty per cent of the candidates on the party list are women and that
women and men candidates are evenly distributed through the list, but encourages
them to do so.' Had Parliament excluded the words seek to it could have been
interpreted as introducing a statutory quota geared towards ensuring the equal
distribution of women candidates on party lists and a consequent increase in the
number of women councillors.106 Section 26 of the Electoral Act leaves the decision
to include women candidates entirely to political parties.

OS 06-04, ch29-p25

(b) Membership of municipal councils

In United Democratic Movement, the Constitutional Court upheld the Constitution of

the Republic South Africa Amendment Act 18 of 2002 that amended FC s 157 and
the Local Government: Municipal Structures Amendment Act 20 of 2002. The
amendments permitted floor crossing in the sphere of local government. The court
held that the wording of the amended FC s 157(1) – subject to schedule 6A, a
Municipal Council consists of members elected in accordance with subsections (2)
and (3) – did not subordinate the Final Constitution to the schedule.107 FC s 157(3)

105 Local Government: Municipal Electoral Act 27 of 2000.

106 After the 2000 local government elections 20% of all the councillors elected were women. Twenty-
nine per cent of the councillors elected by proportional representation were women, while only
11% of councillors elected to ward seats were women.

107 United Democratic Movement (supra) at para 84.

states that '[a]n electoral system in terms of FC s 157(2) must result, in general, in
proportional representation.' According to the United Democratic Movement Court,
FC s 157(3) is to be harmonized with FC s 157(1) and the schedule. 108 In its effort to
harmonise the relevant provisions, the Court wrote:

In the light of the reference to schedule 6A, the reference in subsection 3 to the need
for the electoral system to result, in general, in proportional representation must be
construed as reference to the voting system and not to the conduct of elected members
after the election.109

The United Democratic Movement Court draws a distinction between the voting
system and the conduct of elected members after the election. The conduct of
elected members refers to a situation in which an individual ceases to be a member
of the party that nominated him or her to the legislative body in favour of another
party. Such conduct (giving up membership of the nominating party and joining
another) might well affect the overall support for the members original party if the
member is allowed to retain his or her seat after changing parties. So while it is
correct that, in general, proportional representation refers directly to the electoral
system, a member's conduct might well affect the overall result of an election
determined by the voting system.

Concerns about floor-crossing still arise in relation to the PR segment of a mixed

member proportional system. Floor-crossing under the municipal electoral system is
less objectionable when it occurs in terms of first-past-the-post wards. In these
wards, voters express support for individual candidates to whom seats in the
municipal council are assigned. The seats belong to the candidate no matter what
his or her party affiliation.

(c) Floor-crossing in the municipal councils

Every citizen who is qualified to vote for a municipal council is eligible to be a

member of the council.110 The Final Constitution lists a number of persons who would
not be eligible for membership in a municipal council.111 Anyone

OS 06-04, ch29-p26

disqualified from voting for the National Assembly or disqualified in terms of s 47(1)
(c), (d) or (e) may not be a member of the council.

The participation of traditional leaders in municipal councils is addressed by the

Municipal Structures Act.112 Traditional leaders are allowed to participate in the
meetings of a municipal council, but have no voting rights. 113 The number of
traditional leaders participating in a council is restricted to no more than 10% of the
total number of councillors in the council. If there are fewer than 10 councillors, only

108 Ibid at para 83.

109 Ibid at para 84.

110 FC 158(1).

111 FC 158(1)(a)-(e).

112 Section 81. The identification of traditional leaders for the purposes of s 81 is addressed in
schedule 6 of the Act.
one traditional leader is allowed to participate. A traditional leader must be allowed
to express a view on any matter directly affecting the areas under his or her rule. In
the light of these sections traditional leaders have lost some of the status and power
on municipal councils that they enjoyed under IC s 182. They now fulfil a largely
consultative and advisory function. As a result, the new local government
dispensation set out in the Municipal Structures Act was not well received by
traditional leaders. Lodge reminds us that opposition from this quarter resulted in
the postponement of the second local government election in 2000.114

29.7 The Electoral Commission

(a) Establishment of the Commission

The Electoral Commission has the role of ensuring that all elections will be free and
fair.115 The Electoral Commission is established by FC s 181 and, unlike the
Independent Electoral Commission set up to oversee the 1994 national and
provincial elections, it is a permanent institution. It is also one of the Chapter 9
institutions strengthening constitutional democracy.

The Electoral Commission Act 51 of 1996 lists the functions of the Electoral
Commission. They embrace the promotion of democratic electoral processes, 116 the
managing of elections of national, provincial and municipal legislative bodies,
compiling a national common voters roll and declaring the results of an election. 117
The Final Constitution grants Parliament the power to prescribe any additional
powers and functions of the Electoral Commission.118 In New National Party of South
Africa v Government of the Republic of South Africa the Constitutional Court noted
that the provisions of the Electoral Commission Act accord the Commission a role
that was never intended to merely supervisory119. Its management functions are
active, involved and detailed.120

OS 06-04, ch29-p27

(b) Composition of the Commission

113 See Lodge (supra) at 94 ('[W]ithin the rural areas 800-odd chiefs and some 10 000 headmen would
sit on councils ex officio, the law giving them no voting rights.')

114 Ibid at 95.

115 FC s 190(1)(b).

116 Section 4 of the Electoral Commission Act.

117 FC s 190. See also s 5 of the Electoral Commission Act.

118 FC s 190(2).

119 1999 (3) SA 191 (CC), 1999 (5) BCLR 489 (CC) (New National Party).

120 Ibid at para 76.

The Electoral Commission must be composed of at least three persons. 121 The exact
number of commissioners and their terms of office is provided for by the Electoral
Commission Act. It allows for the establishment of a commission made up of five
members. One of the members of the Commission must be a judge.122 South African
citizenship is a requirement for appointment to the Commission.123 A further
requirement is that an appointee must not have a high party-political profile.124

Recommendations for appointment are made from a list of candidates prepared

by a panel of representatives from the Human Rights Commission, the Commission
on Gender Equality and the Public Protector. The Chief Justice is a member and
chairperson of the panel.125 The panel is required to submit a list of no fewer than
eight recommended candidates to a committee of the National Assembly. 126 In
preparing the list, the panel must act in accordance with the principles of
transparency and openness. The panel must make its recommendations to the
committee after taking into account a person's suitability, qualifications and
experience.127 The committee proportionally composed of members of all parties
represented in the National Assembly, in turn, forwards a list of nominated
candidates to the National Assembly, which after the adoption of a resolution a
majority of its members, recommends candidates for appointment by the
President.128

The President appoints commissioners to seven-year129 terms in either a full-time

or a part-time capacity.130 Commissioners appointed in a full-time capacity are not
allowed to perform any duty or obligation arising out of other employment unless
the President authorizes such employment.131 The President designates a
chairperson and vice-chairperson from among the commissioners. Commissioners

121 FC s 191.

122 Section 6 of the Electoral Commission Act (ECA).

123 Ibid.

124 ECA, s 6(2).

125 ECA, s 6(3)(a).

126 ECA, s 6(4).

127 ECA, s 6(5).

128 ECA, s 6(20)(c).

129 ECA, s 7(1).

130 ECA, s 7(2).

131 ECA, s 9(1)(b).

terms of appointment can be cut short by resignation or death, or by removal from
office on grounds of misconduct, incapacity or incompetence. 132

Commissioners may be removed from office by the President after a finding of

misconduct, incapacity or incompetence by a committee of the National Assembly
upon the recommendation of the Electoral Court.133 A majority of the

OS 06-04, ch29-p28

members of the National Assembly of must adopt a resolution calling for a

commissioner's removal from office. A commissioner may be suspended from office
by the President at any time after the start of the proceedings of the committee and
may be re-appointed, but only for one further term of office.134

The Commission must appoint a suitably qualified and experienced person as the
chief electoral officer.135 The chief electoral officer heads the administration of the
Commission.136

(c) Independence of the Electoral Commission

The Electoral Commission, like the other Chapter 9 institutions, is independent, and
subject only to the Constitution and the law.137 It is required to be impartial and to
exercise its powers and perform its functions without fear, favour or prejudice.138
Every member of the Commission must serve impartially and independently. 139 The
income necessary for the Commissions functioning is derived from Parliament. The
Commission may receive funds from other sources. The Electoral Commission is
accountable to the National Assembly and is required to report on its activities and
performance of its functions and funding to the National Assembly at least once a
year.140

In New National Party, the Constitutional Court recognised the creation of an

Electoral Commission as an essential component of managing a free and fair
election. The appellant alleged that the government had not acknowledged the
132 FC s 194. Section 7(3) of the Electoral Commission Act reiterates these grounds.

133 The Electoral Court is established in terms of s 18 of the Electoral Commission Act. See also the
definition of Electoral Court in s 1 of the Electoral Act.

134 ECA, s 7(3)(c).

135 ECA, s 12(1).

136 ECA, s 12(2)(c).

137 FC s 181(2). Section 3 of the Electoral Commission Act 51 of 1996 provides for a Commission that
is independent and subject only to the Final Constitution and the law.

138 ECA, s 3(2).

139 ECA, s 9(1).

140 FC s 181(5).
independence of the Commission and had thereby undermined its capacity to run
free and fair elections. First, the government refused to accept the advice of the
Commission that bar-coded identity documents should not be the only means of
identification acceptable for registering as a voter and for voting. Second,
insufficient funding had been made available to the Commission. As a consequence,
it had not been unable to appoint the necessary officials to attend to the registration
of voters prior to the 1999 elections. The government had assumed this function.

Addressing the relationship between the government and the Commission, the
Court asked whether the conduct of government had been demonstrated to have
impinged on the affairs of the Commission in a manner which affected its
independence in the carrying out of its functions, or whether such conduct
constitute[d] a threat to do so.141 When considering this question, the Court
highlighted three areas: the responsibility for elections, the system of financial
accounting and problems in relation to the engagement of the staff of the
Commission.

OS 06-04, ch29-p29

With respect to responsibility for the elections, the Court noted that Parliament
had the competence to pass the Electoral Act. Parliament's decision to provide for
bar-coded identity documents did not impair the independence of the Electoral
Commission.

The court then distinguished financial independence from administrative

independence.142 It held that financial independence related to the Commission
having access to funds reasonably required by it to enable it to discharge the
functions it is required to perform constitutionally and legislatively. Parliament – and
not the executive – ought to assess what is reasonably required by the Electoral
Commission to enable it to perform its functions. Administrative independence
related to those matters directly connected with the functions which the Commission
has to perform under the Constitution and the Act.143

The court observed that the establishment of the institutions supporting

constitutional democracy is a new development on the South African scene and that
other organs of state needed to assist and protect the chapter 9 institutions to
ensure their independence, impartiality, dignity and effectiveness.144 The Court held
that a government department ought not to instruct the Commission on how to
conduct voter registration or whom to employ. However, if the Commission required
the governments assistance to provide staff to participate in the voter registration
process, the government was under an obligation to assist in so far as possible. If
not, the Commission was to receive the financial assistance to enable it to do what
was necessary. In the instant case, the Department of Home Affairs, the Department
of State Expenditure and the Minister of Finance did not fully appreciate the
independence the Commission required. However, since these were not the issues
canvassed by the appellant in its application, the Court held that the appellant had

141 New National Party (supra) para 79.

142 New National Party (supra) at para 98.

143 Ibid at para 99.

144 Ibid at para 78.

failed to show that the independence of the Electoral Commission had been
infringed.

The independence of the Electoral Commission arose again in Independent

Electoral Commission v Langeberg Municipality.145 This time the independence of the
Commission engaged the principles of co-operative government delineated in
Chapter 3.146 The dispute related to the Commission's decision to allocate a single
voting station to the residents of the town of Stilbaai. The municipality argued that
many voters would be deterred by the distance they would have to travel in order to
exercise their right to vote.

The appeal brought before the Constitutional Court addressed the issue of
whether the municipality had to comply with those provisions of FC ss 40 and 41
that required parties in intergovernmental disputes to make every effort to settle the
dispute before approaching a court. The Court noted that both the

OS 06-04, ch29-p30
147
municipality of Stilbaai and the IEC were organs of state. The more difficult
question was whether Commission could, for the purposes of Chapter 3 analysis, be
located within the national sphere of government. The Court concluded that could
not. It is simply a state institution supporting democracy. The Court reasoned that
since 'state' is a broader term than 'national government' and embraces all spheres
of government,148 then Chapter 9 of the Final Constitution must make a distinction
between the state and the government, whether local, provincial or national.149
Moreover, the Court found that the Commission is established as independent and
subject only to the Constitution and the law.150 The independence accorded the
Electoral Commission by the Constitution would be undermined if it were viewed as
part of any sphere of government.

Since the Commission is not an organ of state within the national sphere of
government, the dispute between the Commission and the Stilbaai municipality
could not be classified as an intergovernmental dispute. The upshot of the judgment
is that when another organ of state seeks to bring an action against the Electoral
Commission it can do so without having to comply with FC s 41(3).

29.8 The electoral court

145 2001 (3) 925 (CC), 2001 (9) BCLR 883 (CC)(Langeberg).

146 For a detailed discussion of this case, please see S Woolman and T Roux 'Co-operative
Government' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson and M Bishop (eds)
Constitutional Law of South Africa (2nd Edition, OS, June 2004) Chapter 14.

147 Langeberg (supra) at 27.

148 Ibid.

149 Ibid.

150 FC s 181.
The Electoral Court is established under the Electoral Commission Act.151 It
possesses the status of a High Court.152 The President on the recommendation of the
Judicial Service Commission appoints the members of the court. They are: the
chairperson, a judge of the Supreme Court of Appeal; two High Court judges and two
other members. All members of the Electoral Court must be South African citizens.153

The Court has the power to review any decision of the Commission. It can hear
appeals against decisions of the Commission provided that the decision relates to
the interpretation of any law or matter for which an appeal is provided by law. The
Court has the power to investigate any allegation of misconduct, incapacity or
incompetence of a member of the Commission. The Rules Regulating Electoral
Disputes and Complaints about Infringements of the Electoral Code of Conduct made
by the Electoral Court, in terms of s 20(4) of the Electoral Commission Act, stipulate
that the High Courts and Magistrates Courts have jurisdiction to hear any electoral
dispute or complaint about an infringement of the Code.154

The Electoral Court has jurisdiction to impose all of the s 96(2) listed penalties.
The High Court may impose all penalties except those penalties that result in the

OS 06-04, ch29-p31

disqualification of a person's candidature or that result in an order cancelling the

registration of a political party. The Magistrates' Courts may impose all penalties
except those that result in the disqualification of a persons candidature or that result
in an order cancelling the registration of a political party. The Magistrates' Courts
may also not prohibit the receipt of any funds from the state or foreign sources.155
Only in circumstances when an order that results in the disqualification of a person's
candidature, or in an order cancelling the registration of a political party is sought,
may a party approach the Electoral Court directly. Direct access is granted with
leave of the chairperson and at least two members of the Electoral Court. Rules 3, 4
and 5 set out the procedures for bringing an electoral dispute or complaint about a
breach of the Electoral Code of Conduct before the courts. 156

The Electoral Court has final jurisdiction in respect of all electoral disputes and
complaints pertaining to the infringement of the Code.157 No decision or order of the
Electoral Court is subject to appeal or review.158 Section 96(2) of the Electoral Act
must be read in conjunction with s 20(4) (b) of the Electoral Commission Act. The
latter section states that the Electoral Court shall have the power to determine
which courts of law have jurisdiction to hear particular disputes and complaints
about infringements, and appeals against decisions arising from such hearings.

In Mketsu v African National Congress the appellants, members of the African

National Congress (ANC) challenged the selection processes of the party's list and

151 Act 51 of 1996.

152 FC s 18 of the Electoral Commissions Act.

153 ECA, s 19.

154 Government Gazette No 19572 (4 December 1998).

155 Rule 2(2) and 2(3) of the Rules Regulating Electoral Disputes and Complaints about Infringements
of the Electoral Code of Conduct.
ward candidates for the 2000 local government elections.159 They claimed that these
processes were flawed and did not comply with the party's procedures. They sought
an order in the Eastern Cape Division of the High Court. The respondents opposed
the application on a number of bases – one being that the High Court lacked
jurisdiction to hear the application. The High Court upheld this defence.

OS 06-04, ch29-p32

On appeal the appellants again argued that the High Court had jurisdiction to
hear and resolve the objection to the ANC selection process. The Supreme Court of
Appeal considered the meaning of s 65 of the Municipal Electoral Act. The section
deals with objections concerning any aspect of an election that is material to the
declared result. It found that such objections would occur only after an election. It
also considered the provisions of s 78(1) of the Municipal Electoral Act. The section
reads: 'the Electoral Court has jurisdiction in respect of all electoral disputes and
complaints about infringements of the Code subject to s 20(4) of the Electoral
Commission Act'. The court found that these disputes and complaints would
typically, but not necessarily, be heard and resolved prior to the declaration of an
election result.

After considering these statutory provisions the court came to the conclusion that
s 65 was concerned with objections concerning any aspect of an election that is
material to the result. The jurisdiction conferred on the Electoral Court by s 78(1), on
the other hand, was intended to be exclusive. That exclusivity is only subject to the
power of the Electoral Court to determine which courts of law would exercise
concurrent or exclusive jurisdiction to hear particular electoral disputes and
complaints about infringements of the Code.160 The court observed that the
language in s 78(1) was similar to that in s 20(4). Both sections referred to electoral

156 Rule 2(4) stipulates that the offences in Part 1 of chapter 7 and in s 107, 108, 109 of the Act are to
be dealt with in accordance with the legislation applicable to criminal matters. These offences will
be heard in a court with criminal jurisdiction. In terms of s 98 (a), a court may, upon conviction of
an offence mentioned in s 87(1)(b), (c), or (d), 89(2), 90, 91, 93 or 94, impose a penalty of a fine or
term imprisonment not exceeding 10 years. According to s 98(b) a court may, upon conviction of
an offence mentioned in s 87(1)(a), (e), or (f), (2), 3, or 4, 88, 89(1), 92, 107(4), 108 or 109,
impose a penalty of a fine or term imprisonment not exceeding 10 years. According to s 96(3), a
penalty imposed in terms of s 96(2), in certain cases, will be in addition to any penalty imposed in
terms of ss 97 and 98 of the Act. Section 98(a) specifies that if a person is convicted of an offence
in terms of s 94 (breaching the Code), the possible penalties are a fine or term of imprisonment not
exceeding 10 years. The latter penalty would be in addition to an appropriate penalty in terms of s
96(2)(a)-(i).

157 Section 96(1) of the Electoral Act ('EA').

158 FC s 167(6) states:

'National legislation or the rules of the Constitutional Court must allow a person when it is in the
interests of justice and with leave of the Constitutional Court —

(b) to appeal directly to the Constitutional Court from any other court.'

Decisions reached under section 96(1) of the EA are therefore susceptible to constitutional
challenge under this section of the Final Constitution.

159 2003 (2) SA 1 (SCA), 2002 (4) All SA 205 (SCA) (Mketsu).

160 Mketsu (supra) at para 11.

disputes and complaints about infringements of the Code. However, s 78(1) is
subject to s 20(4). The Electoral Court therefore retains the power to determine
which courts have jurisdiction to hear disputes under both s 20(4) and s 78(1).

The court held that s 78(1) addressed matters that were not referred to in s 65 of
the Municipal Electoral Act. Objections under s 65 were not addressed by s 20(4) of
the Electoral Commission Act. The court held that the process relied on to choose
candidates was one concerning any aspect that is material to the declared result
and that the Electoral Court and not the High Court had the jurisdiction to hear such
an objection.161 Although the inherent jurisdiction of the High Court is not readily
ousted, the Court observed that the process set out in s 65 of the Municipal Electoral
Act was intended by the legislature to be mandatory. It rejected the appellant's
principal argument that the High Court retained its jurisdiction to hear the
applications and dismissed the appeal.

161 Ibid at para 9.