• Maja van Loggerenberg

Electoral Act Deemed Unconstitutional

One of the defining pillars that contributes to the democratic state of a country lies in how its leaders are elected. Since South Africa has considered itself a democracy for the last 26 years, it comes as quite a shock to many that the constitutional court deemed South Africa’s Electoral Act unconstitutional. Running for a political position has been impossible if one was not aligned with one of the country’s numerous political parties. Until now.

(Aisha, 2020).


The Electoral Act 73 of 1998 currently allows only for established political parties to contest in national and provincial elections. The act does not allow for an adult to run for national or provincial legislatures in their personal capacity. It has been determined that this rule ultimately undermines a person’s right to political freedom, as they are forced to vote for a political party whose actions they might not necessarily agree with in order to take part in South Africa’s democratic system.


The civil society group, New Nation Movement, brought the case forward. They argued that the act infringes on an individual’s right to exercise individual political choices. In the judgement made on the 11th of June 2020, Constitutional Justice Mbuyiseli Madlanga ruled in favour of the group’s case, stating: “A conscious choice not to form or join a political party is as much of a political choice as is the choice to form or join a political party, and must equally be deserving of Constitutional protection.” Although the judge made this ruling, the court has suspended the judgement for 24 months – enough time to give parliament an opportunity to discuss this matter.


Besides for a change in South Africa’s overarching law, what does this mean for South African citizens? It gives any adult the opportunity to be free of any political party and still be able to take part in our country’s politics. The judgement, when brought into practical action, will allow citizens the ability to attempt to personally enact direct change on the nation. In short, this act will give citizens another choice, opposed to simply settling to vote for a party they may not fully support.


This judgement also has the ability to increase voting numbers. In the last election, only 66% of eligible voters in South Africa casted their ballots, a significant drop from 73% in the previous election. Individuals may have the power to resonate with people in a way that big parties such as the African National Congress and the Democratic Alliance have been unable to do. People like to feel as if they are being heard, and an ‘ordinary citizen’ running for office might be able to satisfy this desire in a manner superior to current political parties.


Ultimately it would be very difficult for an individual to compete with established parties possess the funds and resources to win an election. Organising campaigns and administrative work that takes place behind the scenes is a task that an individual may not be capable of. However, this judgement could force current parties to improve how they select their candidates – hopefully in a manner that will outroot corruptive political practices. Now that people have the opportunity to be free of a political party, they will be less likely to vote for candidates that they do not agree with.


This is a major change in South Africa’s electoral system, and it is not clear what the exact outcome will be. For a country that has been a parliamentary democracy dominated by powerful political parties for almost three decades, it will be interesting to see what changes will occur and how parliament will react to the judgement. The beauty of democracy lies in its ability to grant everyone a voice in governance; this judgement has afforded the people of South Africa that opportunity.

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