Why EFF election challenge will not fly

There are currently more than 200 political parties registered on the Independent Electoral Commission’s database. Many of these registered political parties are not credible entities, have little political support and have absolutely no chance of gaining seats in the National Assembly. It would make elections almost impossible to administer if all these parties were allowed to take part in the election.

In the previous national election only 26 of the parties contested the election. This is partly due to the fact that the Electoral Act at the time required a political party to pay a deposit of R180,000 to appear on the national ballot paper and R40,000 to appear on the ballot paper for the election to a provincial legislature. (This has now been raised to R200, 000 and R45,000 respectively.)

In 2009, only half of the parties on the ballot paper obtained any seats in the National Assembly (NA). Nine of the parties whose names appeared on the national ballot paper (and had thus been able to pay the R180,000 deposit) could not even muster 10,000 votes. Thirteen of the parties lost their deposits while the other thirteen parties had their deposits refunded in terms of section 106 of the Electoral Act, because they had obtained at least one seat in the legislature.

The right to vote is guaranteed in section 19 of the Constitution. In August and Another v Electoral Commission and Others the Constitutional Court emphasised the importance of the right to vote – especially in the South African context in which the vast majority of citizens were denied the right to vote until 1994. In that judgment, Sachs J remarked that:

the universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.

The court remarked that given our history, it would carefully scrutinise any law that placed limitations on the exercise of the right to vote and that such limitations should not be easily countenanced.

It is important to remember that in South Africa at national and provincial level only political parties can contest elections. Political parties – and not individual voters nor individual candidates representing a political party – are required to pay a deposit to contest an election. The fact that some or many of the supporters of a political party may be poor, is therefore not directly relevant when deciding whether the deposit requirement limits the right to vote.

(The situation would have been dramatically different if individual candidates had been required to pay deposits before they could stand in elections as this would have had a clear and obviously unconstitutional discriminatory effect on poor potential candidates for elected office who often would not have been able to pay the requisite deposit.)

In national and provincial elections in South Africa, the question is whether the deposit requirement will preclude a political party with any electoral support from contesting an election. For example, if the deposit requirement had in fact prevented the EFF from registering for the election because the EFF did not have the funds to pay the various deposits, this would have constituted a catastrophic infringement on the right to vote of a sizeable section of the electorate.

I am almost certain that if the deposit had been set so high that a credible party such as the EFF had been unable to afford the deposits, it would have constituted an unconstitutional limitation on the right to vote. This is because a legal provision that in fact disbars a credible political party form taking part in the election would almost certainly be unconstitutional.

That was not the case with the EFF. Nor was it ever likely to be the case. This is so because it is difficult to imagine that any credible political party in South Africa with a good chance of gaining several seats in the NA would not be able to afford to pay the (refundable) deposit required by the Act.

Even smaller political parties require substantial funds to run election campaigns. While large parties like the ANC may spend more than R100 million on the election campaign, even insurgent parties like the EFF will have to spend several million Rand on an election campaign to stand a chance of receiving a sizeable portion of the vote.

Arguably, the more funds a political party has at its disposal, the more effective the campaign it can run. This place new entrants to the political scene at a disadvantage because they do not qualify for election funding as they do not have any seats in the legislature. Moreover, if a party emerges in South Africa one day that is unable to attract any private funding (because of their pro-poor policies or because of their perceived incorruptibility), that party will also be at a distinct disadvantage to compete fairly in the election.

But it is unlikely that even such a party of principle with substantial support will be so cash-strapped that it will ever be unable to pay the refundable deposit to allow it to contest the election.

Nevertheless, this does not mean that the deposit requirement does not limit the right to vote as it is conceivable – if unlikely – that a political party who could garner enough support to gain at least one seat in the NA may not be able to pay the required deposits.

As the deposit requirement limits the right to vote (although the extent of the limitation may be less dramatic than it would at first appear) the question then arises whether this limitation would be justifiable in terms of the limitation clause found in section 36 of the Constitution.

In terms of section 36, we have to look at the purpose of the law that imposes a limit on the right, ask what interests are being served by the limitation and how important these interests are. We then have to look at the interest of those whose right is being limited and ask how severe the limitation on their rights might be. We must then balance these interests against one another by asking whether the limitation could be viewed as reasonable and justifiable in an open and democratic society based on dignity, equality and freedom.

The deposit requirement clearly serves an important purpose. It provides an easy to administer and difficult to manipulate procedure to ensure that there are not too many frivolous and unserious political parties on the ballot paper. It also provides absolute legal certainty to political parties about whether they qualify to be on the ballot paper.

In the absence of such a measure the ballot paper may well be several metres long, making the process of voting more cumbersome and slow and potentially disadvantaging illiterate voters who may have to ask for assistance to find the party of their choice on the paper (thus ensuring that their vote would not be secret). Such a ballot paper containing the details of more than 200 parties would also be very difficult to count and would greatly increase the time needed to count the vote. It would also increase the possibility of mistakes being made during the counting process.

There are, of course, other mechanisms available to ensure that only the names of credible parties appear on the ballot. The law could, for example, require each political party to submit a list of names of registered voters (anything from 10,000 to 50,000 names have been mentioned by the EFF) to demonstrate support for the party.

However, this mechanism is administratively onerous and time-consuming as each name will have to be checked by IEC officials to ensure its authenticity and to prevent fraud. This mechanism also provides for far less legal certainty and is therefore more open to manipulation. For example, a rogue IEC official may apply an overly formalistic standard when verifying all the names on the list with the aim of disqualifying many of the names to prevent the political party from qualifying to take part in the election.

Given the advantages of the deposit system, given the fact that it is not likely to prevent any credible political party from competing in an elections, and given the disadvantages of other systems that could be used to prevent frivolous parties from contesting the election, I suspect that the court would almost certainly find that if the system indeed presents a limitation on the right to vote, that this limitation is justifiable in terms of the limitations clause in the Bill of Rights.

Of course, I have no idea on what basis the IEC set the deposits at the rates it did. It might be that a lower deposit would have been equally effective. But because of separation of powers concerns (in the absence of incontestable data) I doubt very much whether any court would intervene and would replace its own view of what a reasonable deposit amount is – unless the deposit were so high that it would indeed have the effect of disqualifying one or more credible parties with a real chance of obtaining seats in the NA.

PS: The High Court did not decide the EFF case on these principles. Intstead it decided that the matter was not urgent, presumably because the deposit requirement had been in place for many years.

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