One Movement South Africa NPC v President of the Republic of South Africa and Others

One Movement South Africa NPC (OSA) is a registered not-for-profit company whose members intend to contest the 2024 national and provincial elections as independent candidates. Following the Constitutional Court’s decision in New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11, which declared the Electoral Act 73 of 1998 invalid to the extent that it prohibited independent candidates from standing for national and provincial legislative office, Parliament enacted the Electoral Amendment Act 1 of 2023 (EAA). The EAA permitted independent candidates to stand for election, but introduced a requirement in section 31B(3) that independent candidates (and political parties not yet represented in the legislatures) obtain supporting signatures from registered voters totalling 15% of the quota of the relevant region or province from the preceding election. OSA contended that this 15% signature threshold was an impermissible, arbitrary and disproportionate barrier to entry that unjustifiably limited the political rights of independent candidates. OSA also challenged the constitutionality of items 7, 12 and 23 of Schedule 1A of the Electoral Act, which regulate the recalculation of seat allocations and the filling of vacancies when independent candidates are elected or vacate their seats. OSA sought direct access to the Constitutional Court urgently to enable Parliament to remedy any defects before the 2024 elections.

• Whether direct access to the Constitutional Court should be granted as a matter of urgency and in the interests of justice.
• Whether section 31B(3)(a)(i) and (ii) of the Electoral Act, as amended by the Electoral Amendment Act 1 of 2023, unjustifiably limits the rights to freedom of association (s 18), freedom to make political choices (s 19(1)) and the right to stand for public office (s 19(3)(b)) of the Constitution.
• Whether the recalculation and vacancy provisions in items 7, 12 and 23 of Schedule 1A to the Electoral Act are constitutional and rational.
• Whether the 15% signature requirement constitutes a permissible regulation of electoral rights, or whether it is an unjustifiable limitation that must be justified under section 36 of the Constitution.

1. Direct access was granted. 2. The recalculation relief sought was refused; items 7, 12 and 23 of Schedule 1A were upheld as constitutional. 3. Section 31B(3)(a)(i) and (ii) of the Electoral Act 73 of 1998, as amended by the Electoral Amendment Act 1 of 2023, was declared invalid and inconsistent with the Constitution to the extent that it unjustifiably limits the rights to freedom of association, freedom to make political choices and to stand for public office. 4. The declaration of invalidity was suspended for 24 months, with an interim reading-in of a reduced signature threshold. 5. The second, fourth and fifth respondents were ordered jointly and severally to pay 50% of the applicant’s costs, including the costs of two counsel.

A statutory requirement that independent candidates obtain supporting signatures equivalent to 15% of the previous election’s regional or provincial quota unjustifiably limits the rights to freedom of association (section 18), freedom to make political choices (section 19(1)) and the right to stand for public office and to hold office (section 19(3)(b)) of the Constitution, and the limitation cannot be justified under section 36. Parliament may regulate electoral participation to promote credible candidacy and manageable elections, but such regulation crosses into unconstitutional limitation when it imposes a disproportionate barrier to standing for office. Direct access to the Constitutional Court is justified where urgent resolution is required before impending elections to avoid irreparable prejudice and to allow time for legislative correction. The recalculation mechanism for independent candidates’ surplus votes and vacancies under items 7, 12 and 23 of Schedule 1A to the Electoral Act is constitutionally permissible and rational.

Zondo CJ’s minority reasoning that the 15% signature requirement was a rational regulation rather than a limitation, including the analogy to the Comrades Marathon to illustrate that a candidate unable to demonstrate 15% support beforehand was unlikely to win 100% of the required votes in the election. Observations that OSA’s true complaint concerned the size of provinces as large constituencies rather than the 15% figure itself. General observations on the value of independent candidates in enhancing parliamentary accountability and reducing the constraints of party discipline (referencing United Democratic Movement v Speaker, National Assembly). Discussion drawing on labour and freedom of expression jurisprudence regarding the distinction between regulation and limitation of rights, noting that not every statutory condition attaching to the exercise of a right necessarily constitutes a section 36 limitation. Comments on the administrative and fiscal implications of multi-page ballot papers and the risk of frivolous candidacy diluting electoral integrity. Theron J’s partial dissent contains additional non-binding observations.

This is the first case to test the constitutionality of the Electoral Amendment Act 1 of 2023 enacted in response to New Nation Movement. It establishes that statutory eligibility requirements for independent candidates, while permissible to a point, may not erect unjustifiable barriers that effectively negate the newly recognised right to stand for public office outside of party structures. By lowering the signature threshold through an interim reading-in, the Court ensured that independent candidates could meaningfully access the ballot for the 2024 elections while Parliament was afforded time to redesign the requirement. The judgment also clarifies the distinction between mere regulation and unjustifiable limitation of constitutional rights in the electoral context, and affirms that direct access may be granted where electoral urgency and the need for timely legislative remedy make it in the interests of justice.