The Act provides for the amendment of the Electoral Act, 73 of 1998, and gives effect to the Constitutional Court judgment handed down on 11 June 2020.

The judgment in the matter of the New Nation Movement NPC & others V President of the Republic of South Africa & others, declared the Electoral Act of 1998 unconstitutional for stipulating that election to the National Assembly and provincial legislatures may only be attained through membership of political parties.

The Constitutional Court ordered Parliament to remedy the defects within 24 months. The judgement of the order was predicated on rights of association, dignity and Section 19 Political Rights. The Court left the choice of electoral system to Parliament. Similarly, it did not pronounce on a preference of principles.

The Electoral Amendment Bill went through extensive public consultations by the two houses of Parliament – National Parliament and the National Council of Provinces (NCOP), prompting Parliament to request two deadline extensions from the Constitutional Court. Thus, the final deadline for Parliament to pass the bill was 28 February 2023.

The Bill was approved by the National Assembly on 20 October 2022, and referred to the NCOP for further consideration and concurrence. The NCOP also approved it with further proposed amendments, and returned it to the National Assembly on 29 November 2022 for further processing.

On 23 February 2023, the National Assembly (NA) passed the Electoral Amendment Bill and adopted the Report of the Portfolio Committee on Home Affairs along with amendments proposed by the NCOP.

The Electoral Amendment Act became law in June 2023.

In short, it doesn't! Members of the National Legislature (National Assembly) and the nine provincial legislatures are elected based on a party-list, compensatory proportional representation (PR) system. This means that political parties were represented in proportion to their electoral support. With the new Act, independent candidates are accommodated within the system.

In terms of the Electoral Amendment Act:

• The two-tier multimember compensatory proportional system is preserved, so there is no change to South Africa's electoral system.
• The 400 seats in National Assembly, which is the maximum set by the Constitution, are retained.
  • 200 seats are reserved for the National list (to be contested only by political parties).
  • Remaining 200 seats are divided up among the nine regions (contested by parties and independent candidates).
• Regions share the same geographical boundaries as provinces.
• Number of seats reserved for each region will be different, determined by the Electoral Commission before every national and provincial election, taking into account the number of voters per region.

Therefore, in the national elections, independent candidates will contest the 200 regional seats alongside political parties, while the other 200 seats will be compensatory to bring back general proportionality for political parties. This means that the total votes for a party in a region determine the number of seats they hold. Remember that, as an individual, an independent candidate can only occupy one seat, even if they contest in multiple regions.

Provincial Legislatures

• In provincial legislatures, the single-tier multimember proportional system continues to apply.
• Each provincial legislature election is a unique election, with contestants vying for a maximum of 80 and a minimum of 30 seats in a province.
• The Electoral Commission is responsible for determining number of seats before every national and provincial election.
• In the case of the Western Cape, the number of seats (currently 42) is determined by the Provincial legislature in terms of the Provincial Constitution.
• The Electoral Commission will determine the number of provincial seats for the other eight provinces by December 2023.
• Therefore, the number of seats for each province will be different. The number will be determined on the basis of the size of the population in each province. The Commission will use Census data as the base scientific data on population.

• Schedule 1A to the Electoral Act prescribes the method of allocating seats in National and Provincial Elections.
• The method remains the same as the method used since 1994, with an adaptation to facilitate participation of independent candidates.
• First, the Electoral Commission will calculate the quota for a seat by dividing all valid votes by number of seats, then adding one to the result and disregarding fractions.
• The total number of valid votes cast in favour of a political party or independent candidate is then divided by the quota.
• Not all seats may be allocated initially. The highest remainder method is used to allocate seats not allocated by awarding seats according to the sequence of highest surplus votes (in National elections up to maximum of five [5] seats, thereafter default to highest average number of votes per seat).
• If an independent candidate obtains votes that entitles it more than one seat, that candidates’ additional seat/s is forfeited.

Quota and signature requirement for National Assembly regional seats

Quota and signature requirement for Provincial Legislature seats

A vacancy arises when a political party or independent candidate dies, resigns or loses membership of the assembly.

When a vacancy is caused by the departure of a political party candidate, the party nominates another candidate to fill the vacancy.

When a vacancy is caused by the departure of an independent candidate, a recalculation of the votes cast will take place to determine which party or independent candidate who contested the preceding election is entitled to be allocated the vacated seat.

Due to the nature of the system, this means that votes cast for the departing independent are disregarded, and that votes and seats allocated to independent candidates already in office are also disregarded.

Simply put, votes cast for the departing independent and votes cast for, and the seats held by, independent candidates that already hold office in the legislature are also disregarded.

The result ‘plus one’, disregarding fractions, is the amended quota.

There are two separate elections to elect representatives to the National Assembly and Provincial Legislatures. Although separate, they are conducted simultaneously on the same day.

For the first time in 2024, voters will receive three ballot instead of only two ballots.

1. The first ballot will be for the election of the compensatory 200 members of the National Assembly, which is only contested by political parties on a closed list basis.
2. The second ballot will be for the regional elections of the 200 members of the National Assembly. This ballot will vary from region to region, depending on which parties and independent candidates contest the relevant regional election. Only the names of political parties and independent candidates that have met the requirements to contest each regional election will appear on this ballot.
3. The third ballot, the provincial ballot, will be for electing the members of the provincial legislature in each province. It contains the names of the political parties and independent candidates that have met the requirements to contest each provincial election.

National and Provincial elections are two different elections to choose representatives to the National Assembly and nine Provincial Legislatures. Although they are different elections, they are held on the same day nationwide.

National Assembly makes and carries out laws and policies for the whole country, while a Provincial Legislature makes and carries out laws and policies that affect the province only.

The Act commits South Africa to a process of Electoral reform both for the 2024 and beyond the 2024 elections. The Electoral Commission is moving with speed to finalise the supporting business applications necessary for the implementation of the Act for the 2024 election.

These include, among others:

• Rewriting the Candidate Nomination System to facilitate the participation of independent candidates and unrepresented political parties together with a portal to enable candidates to capture the details of voters who support their candidature;
• Redeveloping the Results System to facilitate the recordal of votes cast in favour of independent candidates and translating these into seats where the relevant threshold is met;
• Updating platforms and mechanisms of liaison with parties to also include independent candidates;
• Reviewing the Political Party Funding legislation to include funding of elected independents;
• Ensuring enactment of consequential amendments and regulations to enable the realisation of the objects of the Act.

Want to contest as an independent candidate?

Here's what you need to know:

1. Independent candidates can contest in multiple regions, but they are limited to winning just one seat in the National Assembly.
2. To be nominated, independent candidates can only run in the province where they are registered.
3. Independent candidates can make a difference by serving either in the National Assembly or a provincial legislature, but not in both simultaneously.
4. Before contesting, independent candidates must sign a declaration confirming they are not disqualified according to the Constitution. They must:
   • Hold South African citizenship and be 18 years or older;
   • Reside in the province where they intend to contest;
   • Have no record of being an unrehabilitated insolvent/bankrupt;
   • Have no history of being declared of unsound mind by a court, and;
   • Have not received a sentence exceeding 12 months in prison after 1996.
5. Independent candidates must submit a prescribed nomination form to the Commission by the date specified in the election timetable. The Electoral Commission may request nomination acceptance and identity documents from candidates.
6. Independent candidates must adhere to the Electoral Code of Conduct, just like political parties.
7. Deposit amounts for independent candidates in provincial legislatures are lower than those for the National Assembly.
8. Independent candidates' deposit requirements may differ from those of political parties.
9. The Electoral Commission sets deposit amounts after a thorough public consultation process.

Requirements for independent candidate nomination

• Payment of the prescribed deposit (still to be determined).
• Prescribed undertaking to be bound by the Code of Conduct.
• Prescribed declaration that the candidate is not disqualified in terms of the Constitution.
• In respect of a provincial election, prescribed declaration that the independent candidate is registered in the province.
• A recent photograph of the candidate in such form as may be prescribed.
• Must gather 1000 supporter signatures for a seat in national and provincial legislatures.

DID YOU KNOW?

An independent candidate who was elected to the National or provincial legislature in the preceding election shall be exempt from signature requirement.

What does the Act change for the nomination of candidates from Political Parties?

An additional requirement is a declaration that candidates on the provincial list are registered within that province.

In the case of a party with no representation in the National Assembly or provincial legislature, the same signature requirements apply as for independent candidates. Candidates must gather 15% of the previous election's quota in supporter signatures for a seat in national or provincial legislatures.

The Draft Regulations supporting the Electoral Amendment Act, which include the election deposit amounts, were gazetted in July 2023 and the closing date for public comment is 27 August 2023. The final election deposit amounts will be announced in due course.

The proposed deposit amounts to be paid by political parties and independent candidates intending to contest elections, in terms of the Electoral Amendment Act draft regulations, are as per the table below.

• A voter may contest as a candidate subject to fulfilling the candidate nomination requirements.
• Voters will be issued with three (3) ballots as opposed to the two (2) ballots received in the past national and provincial elections:
  • One ballot to cast a vote for an independent candidate or party in the provincial legislature;
  • One ballot to cast a vote for the 200 regional seats contested by independent candidates and political parties, and;
  • One ballot to cast a vote for the 200 compensatory seats for political parties.

Voting in National and Provincial Elections

By law, all South African residents are required to vote where they reside. However, with changes to the Electoral Act Sections 24A, if you plan to be outside your voting district during the elections, it is now mandatory to notify the Electoral Commission in advance during a specified timeframe.

To notify the Electoral Commission, voters must do using one of the following methods:

1. Online on the Voter Portal at registertovote.elections.org.za;
2. SMSing your identity number to 32249 (R1.00 per SMS, for voting at a voting station ONLY);
3. By visiting their local IEC office in person, weekdays during business hours, and submitting the designated form;
4. By contacting the Electoral Commission's helpline on 0800 11 8000 and getting an agent to assist you with your notification.

Exercise your voting right globally

As a South African citizen, your vote knows no boundaries. Whether you reside within or outside the country, you have the right to vote in the national elections (but not provincial elections).

To vote abroad you need:

• A green South African identity book, smart card or a valid temporary identity certificate;
• A valid South African passport (must not have expired);
• To be 18 years and older.

With the new Electoral Amendment Act, voters abroad are no longer obliged to notify the Commission about their voting intentions, unless they intend voting at a different mission or country then where they are currently registered. In this case, they will be required to notify the CEO, just as South Africans voting in-country are required to do when voting outside of their voting district.