On Thursday 15 August 2019 our team, led by our founder Moeti Kanyane, will present arguments in the Constitutional Court on behalf of the Electoral Commission (“IEC”) in a landmark case regarding the design of South Africa’s electoral system used to elect members of Parliament (“MPs”) and of the 9 provincial legislatures (“MPLs”).
Unlike at municipal level, where independent candidates not affiliated to any political party may stand for election as ward councillors representing specific constituencies, the election of MPs and MPLs is conducted on a closed list proportional representation system, which means that voters can only vote for a political party, and it is the political party that selects the MPs and MPLs to be deployed to Parliament or provincial legislature based on that party’s share of the votes cast. This has been the case since 1994.
The applicants in this case unsuccessfully sought an order in the Cape Town High Court declaring the provisions of the Electoral Act, 1998 to be inconsistent with the Constitution and invalid to the extent that they do not allow independent candidates to be elected directly as MPs or MPLs without the intercession of a political party. They now seek to appeal directly to the Constitutional Court to come to their aid. The Minister of Home Affairs (“Minister”) opposes the appeal, arguing that the Constitution requires that candidates for election as MPs or MPLs must be elected through the multi-party electoral system prescribed by Parliament.
The IEC – for whom we act – presents a more nuanced argument: it contends that while the Constitution may possibly allow candidates to stand for election as MPs or MPLs independently of political parties, it does not require the electoral system to allow this, and that the choice of electoral system has been left to Parliament. That Parliament has elected to use the closed list proportional representation system is therefore not unconstitutional.
‘This is almost certainly the most important constitutional decision that the Constitutional Court will be called upon to make in 2019 and we are privileged, as the country’s leading electoral lawyers, to be representing the IEC in this matter’, said our firm’s founder and director, Moeti Kanyane.”
Follow the Constitutional Court’s media release on twitter via @ConCourtSA: https://t.co/2HEZDUtGkj