Abstract
This article focuses on three aspects that affect equal chances for political parties to garner voter support in free and fair elections.
The first aspect concerns the registration, reregistration and deregistration of political parties. The statutory definition of political party is of cardinal importance because it is central to democratic competition in a parliamentary democracy. In general it is accepted that a political party is based on voluntary association of persons with the same political goals.
In South Africa most political parties are likely to be constituted as a universitas personarum, what can loosely be called a voluntary corporation as opposed to voluntary association. As distinct from voluntary associations, voluntary corporations have legal personality separate from their members and accordingly the capacity to acquire rights and incur obligations separate from their members, as well as the capacity to sue or be sued in their own names. They have perpetual succession in that they continue to exist regardless of changes in their membership. This common law classification, however, does not distinguish political parties from other political organisations such as non-governmental organisations.
The Electoral Act 73 of 1998 does not define a political party but merely refers to registered political parties. The Electoral Commission Act 51 of 1996, however, offers the following definition of a political party: "'party' means any registered party, and includes any organisation or movement of a political nature which publicly supports or opposes the policy, candidates or cause of any registered party, or which propagates non-participation in any election". Apart from the fact that the definition disregards the legal personality of political parties as entities in their own right, it impedes on fair competition insofar as it legitimates the pooling of candidates of some political parties on a single electoral list under the banner of the dominant partner of a permanent electoral coalition. This practice invariably leads to an over- or under-representation of the one or other party in parliament and hampers the forming of coalition governments according to the proportional strength of the various coalition partners. The constitutionality of the definition of a political party has not yet been challenged in South Africa. The German constitutional court had to consider a case in point many years ago and ruled that the practice of parties of an electoral coalition where the candidates of different parties are pooled on a single party list was unconstitutional and not in conformity with the norm of fair competition to garner voter support.
The requirement that new or unrepresented parties should reregister annually also infringes on the right to equal treatment of political parties. It would be more appropriate to determine that unless a registered party has participated in any election during a period that is a little longer than a legislative term, its registration would lapse. In practice there is little clarity on how South Africa’s Independent Electoral Commission (IEC) invokes its powers in regard to the reregistration and deregistration of political parties. It appears that some political parties enjoy preferential treatment. The SACP, for example, has not participated in any election since 1994 and does not intend to do so in future either. Yet the party is not deregistered.
The second aspect of the current electoral law that impinges on the right to equal treatment of political parties is the deposit requirement for participation in elections. Incumbent political parties qualify for state funding and can use that to finance their political campaigns. This gives them an unfair advantage over new or unrepresented political parties. The deposit requirement dates back to the British colonial era. It was first introduced in 1918: the purpose of the then astronomical £150 deposit (£6 600 today) to stand as candidate was ostensibly to sort out "frivolous" candidates, but in fact unfairly benefitted wealthy candidates and bigger political parties. Such deposits, which are prescribed mainly in the UK and its former colonies, are controversial and not in line with the principle of universal adult suffrage which has been adopted in most countries. In UDM v Governor-General [1991] LRC (Const), the Mauritian supreme court took the lead and ruled that the election deposit requirement may be regarded as a property qualification and that it is unconstitutional.
In South Africa the newly founded Economic Freedom Fighters (EFF) challenged the deposit requirement in the run-up to the 2014 general elections but lost the case, mainly because the interdict was not regarded as urgent (Economic Freedom Fighters v The President [2014] ZAGPPHC 109). The court, however, also took the stance that the deposit requirement was a generally accepted method of sorting out candidates and parties that are "not serious" about participating in elections. In fact, most countries with proportional electoral systems do not require electoral deposits for candidates or political parties but use other mechanisms in electoral design to reduce an oversupply of political parties. The most typical measure to avoid an atomised political party system and to secure a stable democracy with vibrant party competition is a threshold for representation of political parties in parliament. Other possibilities are to require a substantial number of voter signatures in support of a new political party or to increase the registration hurdle for political parties. Any combination of these mechanisms can be used instead of the outdated election deposits.
The third aspect in need of attention is fair election procedures for voting and the counting of votes. In general the statutory procedures meet the requirements for fair elections, but the deadline to raise objections about irregularities in the voting procedures or in regard to the correctness of the number of votes counted for a specific party is far too close to the election date. Section 55(2) of the Electoral Act determines that all objections must be submitted in the prescribed form by 21:00 on the second day after the election date. In the general elections of 2014 the deadline expired even before all the votes had been counted and a number of parties discovered irregularities in regard to the counted ballots only after the deadline had already passed. Since the ballots must be stored safely for six months after the elections, there is no reason why objections should not be possible for a longer period. At the very least it should be possible to raise objections as long as the votes are still being counted.
There were other irregularities as well during the election which were recorded in detail by the Community Agency for Social Enquiry (CASE). It appears that the IEC had not sufficiently protected voters against intimidation and had not countered false information, for example that persons who receive social security grants would lose their grants if they did not vote for the ruling party.
Keywords: bloc system; deregistration of political parties; election deposit requirement; Electoral Act; Electoral Commission Act; free and fair elections; majoritarian electoral system; objections to election irregularities; political party; proportional electoral system; registration of political parties; reregistration of political parties
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