One of the ways to get a job in South Africa is to simply become a politician and win elections. There will be a few hoops to jump through before a person can stand as a candidate in the national or provincial elections.
The Constitutional Court ruled in June 2020 that “the Electoral Act 73 of 1998 is unconstitutional to the extent that it requires that adult citizens may be elected to the National Assembly and provincial legislatures only through their membership of political parties”.
Home Affairs Minister Aaron Motsoaledi introduced an amendment bill to Parliament in January 2022, and the Portfolio Committee on Home Affairs is currently processing this bill.
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While the Electoral Amendment Bill is not finalised as yet, the advice the Portfolio Committee on Home Affairs received from the Electoral Commission of South Africa (IEC) and Parliament’s legal services on Tuesday provides a guide of what aspirant MPs and MPLs who don’t intend to join a political party can expect to face before the elections.
At a previous meeting, the committee resolved that it shouldn’t put in place barriers to independent candidates, but that it should also be fair to political parties. It reaffirmed this position on Tuesday. While Section 47 of the Constitution sets out the requirements for a person who is eligible to be elected to the National Assembly, the Electoral Amendment Bill will have some further requirements before a person can be elected.
In the bill’s current form, these are:
To stand as a candidate, a person would have to be nominated.
Currently, the 400 MPs in the National Assembly are made up of 200 from parties’ provincial lists, and 200 from party’s national lists. The current system of how these seats are calculated is explained here. How the amendment should deal with this is one of the issues the committee is still grappling with.
According to Parliament’s legal advice to the committee, the Constitution does not grant an independent candidate the right to be elected to the seats reserved for the MPs from the national lists.
Independent candidates must thus be nominated from the provinces.
The person nominating an independent candidate must be a resident of the province he is nominating the candidate for and must be a registered voter in that province.
This applies to a candidate standing for election to a provincial legislature are well.
Independent candidates can be nominated from more than one province to the National Assembly. A person residing and registered to vote in each of the provinces the candidate intends to contest will have to nominate the candidate. This means if Candidate X wants to stand for election in the Western Cape, Eastern Cape and KwaZulu-Natal, he or she will have to be nominated by a person from the Western Cape, another from the Eastern Cape and another from KwaZulu-Natal.
However, an independent candidate can only occupy one seat in the National Assembly or provincial legislature. So if Candidate X wins election from the Western Cape and the Eastern Cape, that person will only occupy one of those seats.
It is most likely that independent candidates will be required to pay deposits before they can stand in elections.
According to the committee’s legal advice, requiring deposits or signatures would not be unique to independent candidates, as political parties also have to fulfil requirements, such as registration and deposits.
The courts have on more than two occasions considered political party’s requirements and held that “electoral deposits should evidence the seriousness of political parties’ intention of contesting elections, and ensure that the participation of political parties and candidates in the elections are not frivolous”.
It is at this stage unclear what amount an independent candidate will have to pay as a deposit. This will be determined by the IEC. It appears that the committee favours a system where an independent candidate would be expected to pay less than a political party would.
Like the deposit, it is also envisaged that an independent candidate would be required to submit a list of signatures of supporters to the IEC.
This is currently the case for independent candidates contesting municipal elections. The Municipal Electoral Act requires that an independent ward candidate’s nomination must be accompanied by the prescribed form with the signatures of at least 50 voters whose names appear on the municipality’s segment of the voter’s roll for any voting district in the contested ward.
Parliament missed its initial deadline of 10 June to pass the amendment, but the Constitutional Court granted it an extension until 10 December. The committee will continue to meet through the recess period until 15 August, and further engagements with the IEC are envisioned.