New parties face a steep challenge in reaching registration requirements for the upcoming election, though the timeline for the election itself is entirely unclear, due to delays in Constitutional challenges to the new electoral framework.

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New legislation

Under the new regulations, passed in response to a court order compelling the admission of independent candidates, the ANC drew up legislation which fundamentally alters the electoral framework.

Independent candidates must gather signatures to avoid lengthy ballot papers, with requirements ranging from 3,000 to 14,000 depending on the election level. Parties not securing seats in the previous election must meet the same signature requirements to address the discrepancy.

If an independent candidate wins enough votes for multiple seats, they are awarded only one, with excess seats shared among parties and independents. As a consequence of this and the way regional votes are calculated, independent candidates contesting regional elections require 85% more votes to secure a National Assembly seat than political parties.

The establishment of a division of 200 regional seats and 200 Proportional Representation seats creates a more complicated situation than our current, more straightforward Proportional Representation system. Constituency-level selections are biased towards the largest parties in each region, and consequently offer a significant gain to the ANC, DA and EFF.

The addition of independent candidates would theoretically create an extremely long and unwieldy ballot, and consequently, tough criteria for standing for election have been imposed.

Elections expert Michael Atkins has said in a long written report for the IRR that the difficulties created by this nightmare of a process include a lack of clarity for how the process for declaring parties’ registrations as invalid will proceed, with the possibility of post-election counter-challenges to the validity of the elections themselves.

Additionally, the length of the ballot may result in a dramatic increase of spoiled ballots, and the requirements of a greatly increased administration and operational staff requirement for the IEC, whose funding has been stagnant for years, meaning a real-term decrease in relation to inflation.

The system for handling the new party registration requirements is still in development, with less than a year to go before the election is legally required to occur. Longer counting times due to the additional regional ballot also impose a bottleneck.

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Constitutional Court challenges

The new legislation is now being challenged by several parties, principally by far-left veteran activist Zachie Achmat, who is running as an independent, and finding that acquiring the signatures is a rather stiff uphill battle. The Court’s delayed judgment on Achmat’s challenge to election laws poses significant implications for independent candidates in the 2024 election.

Achmat, who is running as an independent candidate, expressed concern in a letter to Chief Justice Raymond Zondo about the prolonged judgment period. Achmat was a founder of the Treatment Action Campaign, and is a member of the Open Society Foundation-funded land invasion advocacy group Ndifuna Ukwazi.

Achmat, gathering signatures for his candidacy, requested an estimated timeframe for the judgment, emphasizing the potential impact on the election process.

The judgment was supposed to be heard at the end of August, but the postponement has held up electoral planning for the IEC, making next year’s election date uncertain.

Two constitutional challenges to the Electoral Act have been filed with the Constitutional Court by the Independent Candidates Association (ICA) and Build One South Africa (BOSA). ICA proposes increasing regional election seats to 350, with 50 for proportional representation calculations, while BOSA challenges unfair signature requirements for independents and recalculation bias favoring the largest party.

The DA, while attacking the new electoral legislation, seem uninterested in joining the current Constitutional Court challenges, and seem rather satisfied with having placed a doomed bill on the Assembly floor back in 2013. Instead, their representative Dr Annelie Lotriet seems content to trust the ANC-led committee in handling the new reforms.

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What does this mean for Cape independence?

Currently there are three parties pushing for Cape independence (Cape Independence Party, Referendum Party, Vryheidsfront Plus). Since the VF+ is an established party, they have no need to collect the required signatures, and this does not represent a challenge for them.

But for the other two parties, there are significant hurdles. The CIP has not demonstrated the capacity to acquire significant support over the past several years, and with no seats in the national or provincial legislatures, will have to acquire signatures in numbers greater than the total number of votes they have achieved at their highest point.

Signature gathering is of course more challenging, as it requires assembling or locating people to apply their personal details, and requires extraordinary legwork - the signatures may not be entered electronically, and must be gathered in-person by hand.

For the Referendum Party, which has already started this process, the challenges are not insignificant. Unlike parties with massive backing from foreign NGOs or local billionaire oligarchs, the RP is a relatively middle-class and grass-roots organisation, and faces an uphill challenge in getting people to donate enough of their free time.

Zachie Achmat, with decades in the left-wing activist community and a professional network that includes some of the most powerful NGOs on the planet, is himself seeing the difficulties involved in achieving the distant milestones placed in front of him.

And should the parties in our corner reach the starting line, another challenge presents itself - the new system, which privileges larger parties will make it easier for the DA hold onto the Western Cape, while making it equally easier for the ANC to hold onto the National Assembly.

What this means, is that the likelihood of significant political change of any kind is significantly reduced.

That said, the issues with the new electoral framework are weighty enough to present a serious challenge in the Constitutional Court, and will likely see the IEC forced to reduce the signature requirements, or else for much of the electoral framework to be redrawn, whether through a “reading in” process, or otherwise.

But the difficulties involved are not trivial - the means for changing these requirements are not as simple as a single line of legal language - quotas and quantities will have to be renegotiated with the relevant stakeholders and institutions, potentially postponing the 2024 elections.

This could result in widespread popular unrest or dissatisfaction, and could see the incumbent parties losing further ground, the latter perhaps a silver lining to more radical political voices like our own.

But it also pushes us toward unfamiliar territory - with elections no longer expected to roll around as scheduled, the nature of governance and political stability will be exposed to internal challenges.

It will also reduce the expectation of timely handover of political power, leaving room for potential abuses by the ruling party.

What we need most of all at this stage is a little clarity, but little appears clear in this chaotic mess.

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