Of everything on display in this world when we arrive here, nothing is of our own making. As we grow older, we identify with others, settle into a culture and begin upholding the constructs that we inherit. We advance together, impart know-how, and leave behind what is to become rem­nants of wisdom for those whose turn it will be to strive towards ideals, to achieve objectives, and alas to take it too far and overstep or infringe. The inflexion here is of interest: the zone where objectives are achieved while incursion is avoided. As for incursion, when we are at that point, we are already well versed in the likes of tit-for-tat. What we choose to do, and how we go about our stand-offs, speaks to our character and shapes our collective legacy.

South Africa’s adoption of constitutional­ism gave us a secure footing. The Consti­tution obliges the very zone within which stated objectives in legislation must be achieved, while infringement of protected rights is prohibited or procedurally bound. We expect of our legislators to be good at this: to voluntarily adhere to the supreme law and to pass legislation that passes con­stitutional muster. It is the law for lawmak­ers, with its principles cut from the fabric of society itself.

We became a constitutional democracy in 1994. We have regular elections. We choose the parties whom we entrust with selecting (on our behalf) the politicians who are to hold office. Disappointment has set in over time. Interest in voting has deteriorated. To some, elections may re­semble picking from disagreeable options. Political parties may have evolved around their own determination of what society should be offered or sold. Many could be off at a tangent of their own.

A: With plenty to choose from, we may easily pick the ones that we identify with. Or we may postpone our inclination and first shortlist a few that share respecta­ble traits: ‘Promise’ fails to keep up with ‘accomplishment’, yet both should yield to the maturity that goes with being ‘watch­ful for incursion’ (as opposed to being blasé about it, or worse). Acknowledge objectives, effort and results, but shortlist worthy voting options on what is pivotal: Those intent on ending up infringing (and hollowing out), differ diametrically from those who are attentive to (and uphold) higher values – with which our Constitu­tion starts, and to which various pockets of society is no stranger.

Lawmakers decide on legislation as a matter of course. October 2022 saw the second reading debate for the Electoral Amendment Bill. On the 20th at a meeting of the National Assembly (NA), the Minis­ter of Home Affairs opened by saying: that the Court found an aspect of the voting system to be unconstitutional, that the central thesis of the Bill is to correct (for) the defect, and that the assembly is called upon to perform its constitutional role of remedying it. The Chair of the Portfolio Committee mentioned commitment to constitutional rights and freedoms, and talked of a balanced Bill that captured the spirit of the judgment and the public views across the country.

Fourteen speakers on behalf of twelve parties debated on issues. Five or more pressed for further reforms. Talk of a trust deficit between those who vote and who are elected was heard. Accountability was mentioned, as well as misconceptions about ensuring it through mere choice of voting system. Proportional representation was asserted to have been selected in the interest of our society. Registration require­ment and by-election issues were raised. The time the process took was bemoaned. Electoral thresholds were deplored. And the restriction of independents to half of the seats was highlighted.

Comments about the unfairness of seat reservation, prompted Parliament to seek an opinion (dated 13 Nov 2022, stamped “PA8”), which builds up a case before pointing to Section 22 of the Structures Act (117 of 1998) implemented at the municipal level. In our view, the opinion reads (para 12), mirroring a similar system for elections of the National Assembly – including the use of two ballots – strikes a balance between permitting independent candidates to contest the election, while at the same time ensuring overall propor­tionality.

The will of the people is not served should all 100% of society vote for alternatives to parties who still end up with 50% of the seats (possible when voters ignore or spoil the second national ballot in droves).

B: The New Nation Movement (NNM) judgement in Case CCT 110/19 was more than two years old at the time of the above meeting and opinion. Independent candidates had to be accommodated. That a balance is struck, suggests an acknowl­edgment that the judgement’s imperative is not fully met: it is met for 200 seats out of 400 at the national level. It also suggests that the balancing argument is considered defendable.

B1: The ‘channelling’ of adult citizens to party membership was an incursion. The Court stopped it, and in the process ruled on more matters, including [para 75] that for as long as the Constitution remains the supreme law, legislation must be constitutionally valid: The Electoral Act, as amended, is not allowed to freshly infringe elsewhere. But it seems to ‘channel’ the second vote towards political parties. The right to free political choice may be infringed by seat reservation.

B2: Were applicants to prove an in­fringement of a fundamental right, then respondents will have to justify why the exclusion of independents from the second ballot was necessary. They may argue that it is to restore proportionality. The issue then is whether what they envisage/pursue is not possible with independents included on the list. It is. The Court already ruled [para 78] that the idea of proportional representation is not inconsonant with in­dependent candidate representation, and the current format at the provincial level is a prime example thereof: independents are added on next to parties (and predictably also fielded party candidates [para 72]).

B3: Parliament’s apparent insistence on seat reservation suggests that it may be an objective, put on duty as the means to the stated objective. They may be aware that the imperative could be fully met, with proportionality ensured, but seems to prefer to defend seat reservation. If we are to counter this, then we may need to develop the means to compel more nar­rowly tailored legislation around the stated objectives, to squeeze out silent ones.

B4: Constituency-based proposals may retain exclusive ballots. Prior to the NNM judgement, seat reservation for parties was trivial. Post the judgement, obliga­tory all-inclusive ballot lists, also for the compensatory ballot, is the means through which to achieve proportionality and freedom of choice (simultaneously and harmoniously).

Three and a half years have passed since the above NA meeting. As anticipated then, Private Member Bills have been tabled to (address coalition formation and to) introduce municipal level electoral thresholds.

A significant body of work on coalition politics exist; a series of articles published by the Dullah Omar Institute cite various sources. The view is that it may be possible to change legal aspects that add to insta­bility, relating to: executive committees, motions of no-confidence, office-bearer elections, etc. The Municipal Structures Second Amendment Bill (B2/B9/B10–2025) includes two more such suggestions: Extending various 14 day limits at the start of a term, and introducing a threshold (deemed a mistake since less restrictive means do exist).

C: Stated objectives must be for a legit­imate purpose. It so happens that the threshold at national level tags along with a known non-proportional method that was introduced there, where ‘partial inclusion’ was never stated as the objective for the partial exclusion of independents. Those should still be scrutinized, as should the frontal approach about coalition sta­bility.

C1: Deduced from the Memorandum in the Bill, the stated objective of the thresh­old is to preclude requisite-short parties from being proportionally corrected for by residual seat allocations. If this is the sole objective, then it could be achieved differ­ently by allowing proportional corrections to proceed as usual before denying the affected parties (which keeps watch over the proportionality objective/stipulation).

C2: Clarifications will be needed. (a): Confirmation of the stated objective for the proportionally allocated 22(1)(a) type seats. (b): Justification for the size of the requisite threshold relative to the average allocation levels for ward 22(1)(b) type seats. (c): The filling of the thresh­old-denied seats needs a stated objective to establish the basis for the seemingly presupposed reallocation.

C3: Thresholds violate proportionality (to be proved by applicants). The sponsors may choose not to contest it and instead (with the onus on respondents to do so) ar­gue that the violation is justified. It is here that the link to reduced fragmentation and ultimately coalition stability becomes necessary. It may not help when mere co­operation between two large parties may be more effective at the ultimate goal, or if nine or so different coalition types may not all respond similarly to the objective of stability (given the means).

C4: It may help the sponsors if proportion­ality violations could be contained, to a small number. A one-quota threshold is stipulated, expressible as a percentage of total votes (or the reciprocal of council seats, e.g. 1.1% for 90 seats or 8.3% for 12 seats): not quite as contained as a flat percentage applied by countries who may not have constitutional proportionality stipulations.

C5: The proposed additions of item 13(2)(c) to Schedule 1 and item 7(2)(c) to Schedule 2 are similar. To avoid a closed loop (failing to allocate) when read with another clause, both need to be made conditional on at least one seat already being allocated. The correction reveals the absence of control: with only one quota-seat allocated, for an extreme distortion, the amended clauses activate, and the affected party is allocated all the proportionality correcting seats.

C6: Less restrictive means to what is proposed, exist: the electorate may decide where their votes go when their choices are eliminated. Both ballots may improve: Ward seat majorities (not mere plurali­ty) are more likely to occur. Proportional seats should have higher residuals from eliminations. To the extent that run-off options are insufficient, and denied, empty proportional seats emerge in proportion to exhausted votes. Those may stay vacant, if justifiable, or be proportionally allocated by e.g. the largest remainder method. This less restrictive alternative may do as well for coalition stability as envisaged above.

The go-to combination for proportionality is the Hare quota and largest remainder method, which allocates at most one residual seat per contestant – no seat allo­cation improves on its translation of votes. Proportionality finds application through­out society and in law. For its limitation to be justified, it has to be for a weighty issue.

Of the remaining Schedule 2 amendments, item 15(5) will clash with item 15(3) and upset the 23(1)(b) stipulation for council representation at the district level. The other two create another threshold, possi­bly superfluously so.

D: Electoral matters are void of emotion, a rarity in our politics that offers a good setting to detect incursion.

D1: Erstwhile sponsors of amendments to the Electoral Act once did act in the inter­est of society, embracing proportionality, only to later use it to argue for exclusion. They are king-makers in the background for the Bill. Its sponsors seem keen on driving it in the run-up to the elections. Barring a withdrawal, or more notably a change of heart, two unequivocal stances on constitutionalism could be on display.

D2: Beyond a lack of awareness, a delib­erate choice to be watchful for incursion, becomes observable. Future cleaning up may be spared by present action. The re­maining parties may have interests that go against the Bill. What may in fact appeal to society is an aptitude for constitutionalism – the showcasing of capabilities to ensure zero tolerance for seemingly unjustifiable incursions – by a handful of proper elec­tion options (for good measure) making it onto voter shortlists.

Thomas R Labuschagne

2026 04 21