The risk of imposing a new electoral system by the Constitutional Court could curtail independent candidates' legal challenge of what the applicants call an irrational Electoral Amendment Act. 

On Tuesday, Constitutional Court Justice Leona Theron asked advocate Griffiths Madonsela, the legal representative for the Independent Candidates Association of South Africa (ICA), whether the ICA was not arguing for the infringement on the separation of powers by applying to reverse legislation passed by Parliament and enacted by President Cyril Ramaphosa in April. 

The ICA launched its application to declare the Amendment Act unconstitutional, arguing, among other things, independent candidates being allocated only 200 of the 400 National Assembly seats was "irrational and inconsistent with the rule of law". 

The association, according to chairperson Michael Louis' founding affidavit, wants the act to allocate 350 seats to be contested by both independent and political party candidates, with the remaining 50 being "compensatory seats" - or proportional allocation to parties - to adhere to the constitutionally enshrined "right to equal benefit of the law", and "to stand for public office". 

In June 2020, the Constitutional Court ordered Parliament to, within two years of the ruling, amend the Electoral Act to allow independent candidates to contest the national elections.

Previously, the law only allowed candidates attached to political parties to contest. 

Parliament passed the Electoral Amendment Bill that allocates only 200 seats for independents in February, and Ramaphosa signed it into law in April.  

Theron asserted there was not enough evidence for Madonsela's clients to claim the disadvantage they claimed independents suffered in the current act by being allocated 200 seats was "irrational". 

"The court will basically be imposing an electoral system on the country," she asserted, arguing that that would be the case should the act be ruled unconstitutional. 

But Madonsela said Parliament's decision to grant independents only 200 was done arbitrarily.

He alleged there was no evidence on the record where there was serious engagement with the 350/50 split proposed by the ICA, rather than the 200/200 ratio in the act.

"The problem is that, when they [Parliament] do the compensatory seats allocation [proportional representation seats], the independents are not included. It means independents have no chance [to get the 200 proportional seats reserved for parties]," Madonsela said.

Home Affairs Minister Aaron Motsoaledi, however, dismissed the ICA's application in his answering affidavit, saying the June 2020 ruling called for the inclusion of independents in national elections, which he stressed the current act encompassed. 

Motsoaledi added in his affidavit independents being granted more seats would distort the proportional share of political parties, saying South Africa used a proportional representation system that supported multiple parties in its legislatures and councils. 

"It is only political parties [that] can send representatives in proportion to the support they achieve in an election, [which] can guarantee proportionality.

"Political parties are indeed central for this reason to South Africa's multiparty system of democratic government," he said.