The Electoral Amendment Bill, currently on President Cyril Ramaphosa’s desk, proposes major changes to the way South Africans vote, but it contains serious flaws that warrant its return to Parliament or referral to the Constitutional Court. With the 2024 national and provincial elections approaching, urgent action is needed.
The Bill amends the Electoral Act to allow independent candidates to contest elections and revises the electoral formula for seat allocation. Under the proposed system, provinces become distinct constituencies, called “regions.” The National Assembly would be split into 200 “regional” seats and 200 “compensatory” seats drawn from proportional‑representation lists. Independent candidates could only compete for the 200 regional seats, while the compensatory seats would be filled from party lists. Before each election, the Electoral Commission would allocate the 200 regional seats among the regions based on the number of registered voters. A quota for each region would be calculated by dividing the total votes cast in that region by the number of seats allocated. The total votes a party receives in a region would determine how many of that region’s seats it obtains. An individual candidate, even if standing in multiple regions, could occupy only one seat.
During public participation, critics highlighted that the Bill creates unequal competition between independent candidates and political parties. Independents can contest only 200 seats, whereas parties can contest all 400. Consequently, any votes an independent receives beyond the quota for a single seat are wasted. For example, if an independent garners enough votes for five seats, they still obtain only one, and the remaining votes are discarded in a second round where the quota is recalculated lower. This process repeatedly favors parties, distorts proportional representation, and results in a high number of wasted votes. Moreover, the entry requirements for independents are more stringent: they must collect signatures amounting to 15 % of the quota for a seat (e.g., 6 750 signatures if the quota is 45 000 votes), whereas parties need only 1 000 signatures upon registration.
The public consultation process was also inadequate. The Portfolio Committee failed to give proper notice for hearings and did not provide sufficient information for the public to understand the Bill’s purpose and the complexities of the new electoral system. Parliament introduced the Bill with only six months left before the deadline, leading to a rushed and incomplete participation process. By the time the Bill reached the President, Parliament had missed the deadline twice.
The Bill follows a 2020 Constitutional Court ruling (New Nation Movement NPC & Others) that declared the Electoral Act unconstitutional because it barred adult citizens from contesting elections as individuals. The Court ordered Parliament to amend the Act within 24 months, ensuring a system of general proportional representation as required by the Constitution. In February 2021, the Minister of Home Affairs set up a Ministerial Advisory Committee, which produced a June 2021 report offering two options: a minority view to include independents within the existing system, and a majority view for a mixed system with half the seats elected directly from constituencies and half allocated proportionally. The majority view was ignored, not presented to the public, and not debated in Parliament.
Parliament missed the initial Constitutional Court deadline of 10 June 2022, received an extension to 10 December 2022 (also missed), and finally met a further extension to 28 February 2023. The #RejecttheBill campaign, launched in September 2022, cites these fundamental procedural flaws. If adopted without amendment, the Bill threatens the right to vote and weakens South Africa’s democracy.
As the President prepares to sign, we urge him to consider the constitutional issues and act in the best interests of South Africans. The Bill should either be sent back to Parliament for compliance with the Constitution or referred to the Constitutional Court. Swift action is essential, as the 2024 elections loom and the Independent Electoral Commission must still implement any changes mandated by the Electoral Amendment Act.
Letlhogonolo Letshele is the Electoral Systems Researcher at My Vote Counts. Views expressed are not necessarily those of GroundUp.
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