Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
25 March 2022

Why proposed amendments to SA’s electoral system favour the governing ANC

In June 2020, the Constitutional Court instructed Parliament to amend the electoral system within 24 months to allow independent candidates to stand for election to the National Assembly and provincial legislatures. The judgment was widely welcomed at the time, as many citizens failed to anticipate the extent to which the governing party would exploit the opening provided by the judgment to craft an electoral system to suit its own needs.

Whenever parliamentary dysfunction comes up in discussions at a social event, I make a beeline for the drinks table or the toilet to avoid having to take part in the discussion. Because the current electoral system is widely, but wrongly, blamed for the dismal performance of governing party MPs, I tend to ruin social events when I argue that changes to the electoral system will not make MPs more accountable to voters and that nothing much will change until the ANC loses its electoral dominance.

As I have previously explained, I am sceptical of the claim that the introduction of a new electoral system that provided for the direct election of 200 or 300 of the 400 members of the National Assembly (each representing a geographical constituency), would make MPs less beholden to their political parties, and would lead to governing party MPs playing a more constructive role in holding the President and his or her Cabinet accountable.

What I failed to consider when I wrote that column was that the governing party would propose changes to the electoral system that would, in fact, make things worse, and would distort the proportional representation aspect of the system in favour of the largest party or parties.

To understand why this is so, it is necessary to look at the proposed amendments to the electoral system contained in the Electoral Amendment Bill currently being considered by Parliament.

The bill does not provide for the introduction of constituency-based elections of any kind. Instead, it opts for a minimalist approach by retaining the proportional representation electoral system and merely accommodating independent candidates within the current system. But the way the bill proposes to accommodate independent candidates would significantly increase the number of votes needed to be elected to the National Assembly (NA), making it far more difficult for smaller parties and independent candidates to win a seat in the NA.

To understand why this is so, it may be helpful to focus on the National Assembly election. At present, only political parties can compete in the NA election. Voters vote for the party of their choice, and the parties are allocated seats in the NA in close to perfect proportion to the percentage of votes they won in the election. While the system is said to weaken the accountability of MPs to voters, and to strengthen the control of political parties over their MPs, it is an extremely fair system that allows smaller parties with as little as 0.2% of the vote to gain a seat in the NA.

The proposed amendments would allow independent candidates to be added to the ballot paper where they will compete against political parties for seats in the NA. At first blush, it may look as if the bill treats independent candidates like political parties, but if one reads the fine print, it becomes clear that the system is designed to benefit political parties (especially larger ones) and to disadvantage independent candidates.

First, independent candidates would not be permitted to compete for votes in all nine provinces, but would only be able to compete for votes in the province they reside in. Those independent candidates who qualify to stand in the election will be added to the ballot paper for the specific province. In each province, voters would be presented with a ballot paper containing the names of all the political parties contesting the election, as well as the names of all the independent candidates contesting the election in that province.

Second, the proposed system would allow independent candidates to compete for only 200 of the 400 seats in the NA. Political parties would be allowed to compete for the same 200 seats, but would additionally compete for a further 200 seats on a compensatory list. The Electoral Commission would be required to determine the number of seats available for allocation in each province, largely based on the percentage of the population living in a particular province. Because seats are allocated 200 at a time, the votes of political parties are in effect counted twice while the votes for independent candidates are only counted once.

An example might help to explain what this would mean in practice. If 20% of the population lives in Gauteng its “share” of seats in the 400-seat NA would be 80. However, independent candidates in Gauteng would only be able to compete for 40 of those seats, while, simplifying slightly, political parties would be able to compete for all 80 seats. The 200 seats exclusively reserved for political parties would be allocated from compensatory lists in accordance with a different quota than the one used for the allocation of the other seats.

In a proportional representation electoral system, seats are allocated by calculating the quota of votes required to obtain one seat, using any number of formulas. In the 2019 election, the quota for a seat in the NA was approximately 44,000 votes – although parties with significantly fewer votes won seats due to the complexities of the formula used.

But because the draft bill provides for the allocation of 200 seats at a time (instead of 400 all at once), the quota of votes required for either a political party or an independent candidate to win a seat in the NA would be significantly higher than it previously was. This is because a quota is basically calculated by taking the total number of votes and dividing it by the number of available seats. If only 200, instead of 400, seats are available for allocation at any time, the quota to win one seat basically doubles. But the quota required by independent candidates would be even higher than the quota required by political parties.

Assuming independent candidates are competing for one of the 40 seats available to them from Gauteng and four million votes were cast in Gauteng, the quota of votes required for an independent candidate to be elected to the NA would be 100,000 votes, considerably more votes than was required to win one seat in the 2019 election.

All the votes cast for independent candidates who failed to get elected, as well as all the surplus votes cast for independent candidates who won a seat, would be “wasted” and would be redistributed to political parties in proportion to the percentage of votes they received. This means that if a popular independent candidate wins 300,000 votes in Gauteng, and the quota for a seat is 100,000 votes, 200,000 votes for that candidate would be “wasted”.

Because the wasted votes are redistributed to parties, the quota required for one seat would also be considerably lower than for independent candidates. For example, if one independent candidate won a seat on the Gauteng ballot, but 300,000 votes were cast in total for independent candidates in Gauteng, the quota for political parties to win a seat on the regional list would be approximately 94,800 votes, a difference of more than 5,000 votes.

But it gets worse, as the quota required for political parties to win seats in terms of the compensatory list (the 200 seats independent candidates cannot compete for) is lower still. This quota is calculated by disregarding all votes cast for independent candidates and dividing the total number of votes cast across the country by 200. For example, if 17 million votes were cast in the election, but 600,000 of those went to independent candidates, the quota for a political party to win one seat in the NA on the compensatory list would be 82,000 votes.

Because a complicated formula is used to calculate the final distribution of seats to parties, a party that obtained significantly fewer votes than the original quota may still win a seat in the NA. This is why the Al Jama-ah party won one seat in the NA in 2019 with only 31,468 of the votes despite the quota per seat being approximately 44,000 votes. This means an independent candidate who wins 85,000 or even 95,000 votes (the quota of votes required would be lower for some provinces than for others) might miss out on a seat in the NA, while a political party that wins closer to 70,000 votes might still win a seat in the NA. The fact that the political party would be able to compete in all nine provinces while the independent candidate would only be able to compete in one province provides a further disincentive to stand as an independent candidate.

Because all the votes cast for independent candidates who did not win a seat and the surplus votes cast for an independent candidate who won a seat will be redistributed to political parties, larger parties stand to benefit by winning more seats than they would have won under the current system.

The extent of the benefit would depend on the number of “wasted” votes cast for independent candidates, but in modelling done by election analyst Michael Atkins, based on the 2019 election results, the ANC would get up to eight additional seats under the new system, and the IFP and the EFF one additional seat. But because the quota to obtain one seat in the NA would almost double, several smaller parties – including the PAC and Cope – would fail to gain any seats in the NA, even if they obtained the same number or percentage of votes as they did in the 2019 election.

While much would depend on the percentage of votes cast for independent candidates, the proposed system may, in some instances, result in a party obtaining a majority of seats in the NA while obtaining significantly less than 50% of the votes. It is also possible that other larger parties would gain an additional seat or two at the expense of small parties and independent candidates.

The proposed amendments to the electoral system also pose serious practical problems. While it may be in the interest of the governing party to encourage independent candidates to compete in the election, having too many independent candidates on the ballot would result in an impossibly long ballot paper, which might confuse some voters, would require many more ballot boxes to accommodate the long ballot, and would make it more difficult to count the ballots.

To counter this, the bill requires independent candidates to obtain a prescribed number of signatures from voters living in the province they wish to contest the election, as well as the payment of a prescribed deposit. The bill does not stipulate the number of signatures or size of the deposit that would be required, leaving the power to decide this to the Electoral Commission, an undesirable delegation of power that will raise an apprehension of abuse. Incidentally, the prescribed deposit currently required from political parties to compete in the NA election is R200,000, an amount that would be out of reach for all but a tiny number of potential independent candidates.

As the proposed amendments might benefit the ANC, it is not surprising that the party is supporting its passage. But should one assume that the DA and the EFF are privately rather happy that the bill will make it extremely difficult for independent candidates to win seats in the NA?

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