The move by ActionSA, the EFF, the MK Party and GOOD to name just a single proportional representation (PR) candidate in their final submission of party lists to the Electoral Commission of South Africa (IEC) is a reflection of internal party dynamics as well as a bid to gain an advantage in coalition talks after the November 4 local government elections.
The DA is challenging the move by the four parties in the Electoral Court, describing it as “inexcusable” and “destructive to democracy”.
The outcome of the case could have far-reaching implications for the election: should the court agree with the DA and prevent the parties from supplementing their lists after the poll, they risk losing their PR seats in council.
In the court application, DA federal council chair Ashor Sarupen argues that the parties are purposely exploiting a loophole in the electoral laws to obtain an unfair advantage and are seeking to “subvert democracy”, depriving voters of knowing who exactly will represent them in council when they cast their ballots.
As it stands, a provision in the Municipal Structures Act allows parties to add candidates to their PR lists after the election in the event that they win more seats than they had initially anticipated and their lists thus run short.
The IEC will contact parties to supplement their lists before the first council meeting — crucial to electing the mayor and the speaker. Ordinarily, parties are legally permitted to supplement their lists only after the first council sitting.
“Their [the four parties’] intent is to supplement their lists after the election without ever revealing their candidates before the election. They want to abuse the narrow exception for good faith mistakes in estimating support, and convert it into an election strategy that fundamentally undermines democracy,” Sarupen argues.
“They do not want voters to know who they are voting for. They do not want a fair competition with other political parties where both sides know who the other’s candidates are.”
As Sarupen tells it, the legislative provision is designed to serve a narrow purpose. “It is meant to cater for situations where a party slightly and in good faith underestimates its electoral support,” he argues. “It is not meant to be a vehicle for parties to submit token lists that do not comply with the purpose or the requirements for those lists. It is not intended to be an avenue to declare candidates only after an election is over.”
The DA and other parties have also submitted PR lists with only a single name. But in the 12 municipalities where it has done so, the DA provided the court with evidence that it is unlikely to obtain more than a single PR seat in council. The same applies to other parties, such as Rise Mzansi.
However, in the case of ActionSA, the EFF, MK and GOOD, Sarupen says the strategy is deliberate and co-ordinated.
Unfair advantage
ActionSA leader Herman Mashaba has publicly confirmed that the party intentionally submitted a single name in order to populate the list after the election to “reward” party members for their work on the campaign in the run-up to the election. ActionSA intends populating the list with ward candidates who did not win ward seats but performed relatively well in the election. In effect, those candidates whom voters did not elect as ward councillors will be ushered into council on the PR ticket.
The same applies to the EFF. According to its councillor selection document, PR councillors will come from wards where they performed well but weren’t able to win the seat.
“The central command team will oversee the final selection of PR councillors to ensure appropriate geographic representation, gender parity, youth representation, skills and governance capacity,” the document reads.
MK has opted for the strategy to mitigate infiltration and infighting — its base in KwaZulu-Natal is also prone to councillor candidate assassinations.
Another argument by the DA is that by exploiting the loophole in the legislation, the four parties will have an advantage over parties that submitted their complete lists. The ANC, for instance, failed to meet the list submission deadline, affecting its participation in six municipalities. Had the party opted to submit just one PR councillor candidate, it may have met the deadline.
What is not mentioned in the court papers is the advantage of the strategy when it comes to coalition negotiations. The four parties will be able to tailor their lists after the election results are announced to give them an advantage in coalition talks. On this reading, party bosses will be able to hand-pick candidates to satisfy potential coalition partners or tailor their list to access posts, using seats as leverage to secure executive positions in municipalities across the country.
The DA is seeking alternative relief in the matter to close the loophole in the legislation to ensure that the practice of providing just one PR name and supplementing the list after the results are tallied is stopped permanently.
It is a crucial question for the Electoral Court to decide — and, given that the lists have already been certified and the ballot papers are currently at the printers, its effect could be dramatic.
Marrian is a political analyst with the Bureau for Economic Research
