In June 2020, the Constitutional Court handed down New Nation Movement NPC and Others v President of the Republic of South Africa and Others [2020] ZACC 11. The order, in the part everyone quotes, says this:
It is declared that the Electoral Act 73 of 1998 is unconstitutional to the extent that it requires that adult citizens may be elected to the National Assembly and Provincial Legislatures only through their membership of political parties.
But neither the court, not anyone else, actually read the Electoral Act.
The declaration was suspended for 24 months. Parliament missed the deadline. There was an extension. Then another extension. Then the Electoral Amendment Act 1 of 2023 was rushed onto the statute book. Then One Movement South Africa NPC v President of the Republic of South Africa [2023] ZACC 42 struck down parts of that. Then the Electoral Matters Amendment Act 2024 happened. Then we had an election in 2024 and almost no independent candidate got anywhere near a seat.
It was, by any measure, a saga.
It was also — and this is the bit I want to argue — completely unnecessary. The Electoral Act, in the schedule that everyone was busy declaring unconstitutional, already told you exactly how to be an independent candidate. You just had to read it. The Court did not. The applicants did not. The Minister did not. The IEC did not. Nobody asked, in the technical sense the statute itself required them to ask, what a “party” actually is.
So before we get to the punchline — which involves a Khoisan princess, an enormous court-built scaffold — let me walk you through how we got here.
The cast of characters
The case began in the Western Cape High Court as New Nation Movement NPC and Others v President of the Republic of South Africa and Others (Case No 17223/18). The applicants were:
- New Nation Movement NPC — a registered not-for-profit, the lead applicant.
- Chantal Dawn Revell — described in her own founding affidavit as “a Princess of the Korona Royal Household which is one of the five official Royal Priesthoods of the Khoe and the San First Nations” (WCHC judgment, para 4). She is the Khoisan princess of this story.
- Mediation Foundation for Peace and Justice — present at the High Court, dropped out by the time the matter reached the Constitutional Court.
- GRO — a small civil-society outfit.
- Indigenous First Nation Advocacy SA PBP (FNASA) — another civic body.
Cited as respondents were the President, the Minister of Home Affairs, the Electoral Commission, and the Speaker of the National Assembly. (The NCOP was later roped in.) The President and Speaker effectively abided the court’s decision; the Minister and the IEC opposed.
The complaint was simple to state and, on its face, hard to argue with: the Electoral Act 73 of 1998 forces every aspirant to public office at national and provincial level to do so as a member of a political party. There is no legal route for an individual to stand alone. That, said the applicants, is unconstitutional because it limits the right under section 19(3)(b) of the Constitution — “Every adult citizen has the right … to stand for public office and, if elected, to hold office” — and the right under section 18 to freedom of association (which, said the applicants, includes the right not to associate).
Stop one: the Western Cape High Court (Desai J, 17 April 2019)
The application was urgent — the 2019 general election was three weeks away on 8 May 2019. The High Court had little patience.
Desai J’s judgment is brisk. He dismissed the application, reasoning along these lines:
Section 19(3)(b) is silent. It says “Every adult citizen has the right … to stand for public office”. It does not say “as an independent candidate as opposed to a member of a political party”. A textual reading does not give the applicants what they want.
The Constitution as a whole points away. Section 1(d) declares South Africa a state founded on “a multi-party system of democratic government”. Sections 46(1)(a) and 105(1)(a) leave the design of the electoral system to “national legislation”, subject to the requirement in sections 46(1)(d) and 105(1)(d) that the system “results, in general, in proportional representation”. The party-list system the Electoral Act adopts is the result of that legitimate parliamentary choice.
Ms Revell’s reasons for not joining a party are “rather tenuous”. Desai J was particularly unimpressed with the second applicant’s affidavit. She said she did not want to belong to a political party because she had no confidence in any of them, and because the Royal Houses she represented had committed themselves to political non-partisanship. That explanation, the judge said with a verbal shrug, “warrants little comment and is hardly compelling”. She could join or form a party; she simply elected not to.
Mogoeng CJ’s “dictum” in My Vote Counts II was obiter and not binding. The applicants had leaned heavily on a passage in My Vote Counts NPC v Minister of Justice and Correctional Services [2018] ZACC 17, where the then-Chief Justice said “every adult citizen may in terms of the Constitution stand as an independent candidate to be elected to municipalities, Provincial Legislatures or the National Assembly”. Desai J dismissed it as “quite patently obiter” — and worse, said it was directly contradicted by the Ramakatsa statement that “the Constitution itself obliges every citizen to exercise the franchise through a political party” (drawing on Ramakatsa v Magashule [2012] ZACC 31).
The right does not exist, in other words. Parliament was entitled to choose a closed-list PR system. Once it had chosen, that choice was not unconstitutional.
The application was dismissed. The applicants raced to the Constitutional Court on direct appeal.
Stop two: the urgency hearing (ZACC 27/2019, 2 May 2019)
The Constitutional Court, on the eve of the 2019 election, heard argument only on whether the matter was urgent. It concluded that it was not — six days from polling day was not a sensible time to be redrawing the electoral system — and postponed the merits hearing to 15 August 2019. The 2019 election proceeded under the existing party-list system. Nobody — least of all the urgent applicants — managed to vote for an independent candidate. The case lived to fight another day.
Stop three: the main Constitutional Court judgment (ZACC 11/2020, 11 June 2020)
This is the judgment that everyone cites. Madlanga J wrote the majority (with Cameron J, Jafta J, Khampepe J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ concurring). Jafta J wrote a concurrence on slightly different grounds. Froneman J dissented.
The majority’s reasoning, stripped of footnotes, runs like this.
Section 19 is broader than its bullet points
Section 19(1) says “Every citizen is free to make political choices, which includes the right—(a) to form a political party; (b) to participate in the activities of, or recruit members for, a political party; and (c) to campaign for a political party or cause.” The word “includes”, Madlanga J said, is not exhaustive — the listed choices are examples. “A conscious choice not to form or join a political party is as much a political choice as is the choice to form or join a political party; and it must equally be deserving of protection”.
Section 18’s negative right
Section 18 — “Everyone has the right to freedom of association” — was read to include the negative right not to associate. Madlanga J spent a chunk of paragraphs on European and African human-rights jurisprudence — Young, James and Webster v UK; Sigurjónsson v Iceland; Chassagnou v France; Tanganyika Law Society v Tanzania — to build the proposition that the right to freedom of association protects the right not to be coerced into joining one. Forcing someone to join a party in order to access the political process is exactly that kind of coercion.
Reconciling section 19(3)(b) with the rest of the Constitution
The High Court — and the respondents — had said section 1(d), section 46(1)(a), section 105(1)(a) and section 157(2)(a) all pointed to a party-only system. Madlanga J accepted that section 157(2)(a) (governing municipalities) genuinely does require an exclusively-party system at municipal level, but treated this as a “discrete and narrow limitation” peculiar to local government — flowing from the unique negotiated history around municipal transformation. The general right under section 19(3)(b) remained the governing norm everywhere else. And the apparent tension with the transitional Schedule 2 arrangements was, by 2020, spent: those arrangements were always meant to be temporary.
Justification under section 36
The Court asked whether the limitation was reasonable and justifiable. The Minister had filed no real justification evidence in the High Court — his answering affidavits “make no attempt to deal with the question of justification”. What was offered in argument compared the existing system to a single Bill that had been introduced and not adopted, which “says nothing about why the exclusion of independent candidates by the Electoral Act is justified”. The state had failed to discharge the onus on it. The limitation was not justified.
Remedy
The Court declared the Electoral Act unconstitutional “to the extent that it requires that adult citizens may be elected to the National Assembly and Provincial Legislatures only through their membership of political parties”, and suspended the declaration for 24 months to allow Parliament to remedy the defect.
What the majority leaned on
I want to be fair to Madlanga J. The judgment is well-written and the textual argument about section 19(1) — “includes” is not “is” — is genuinely good. The negative-right-to-associate reasoning is supported by a respectable body of international case law. The point that the Minister did not bother to defend the limitation on section 36 grounds is, frankly, the most damning thing about the respondents’ case.
But the judgment never engages, at all, with how the Electoral Act actually allocates seats. It never goes inside the schedule. It never asks how a “party” is defined for purposes of contesting an election. It never asks whether the impugned system might already contemplate parties that look indistinguishable from independent candidates. It treats “party” as if it must necessarily mean a mass-membership organisation rather than a legal vehicle.
That is the bit I want to come back to. Hold the thought.
Stop four: the extensions (ZACC 24/2022 and ZACC 12/2023)
Parliament, in the unsurprising way of Parliaments, missed the 24-month deadline. The Minister came back to the Court asking for an extension. The Court granted one in Minister of Home Affairs v New Nation Movement NPC [2022] ZACC 24, and then a further one in [2023] ZACC 12. The Electoral Amendment Act 1 of 2023 was eventually enacted in April 2023.
What the Electoral Amendment Act did, in short, was bolt independent candidates onto the existing party-list architecture. A new section 31B was inserted, requiring independent candidates to gather a fixed quantity of supporting signatures before they could nominate. The seat-allocation formulas in Schedule 1A were rewritten so that independent candidates’ votes counted toward filling regional but not the national-list “compensatory” half of the National Assembly’s 400 seats. The architecture remained recognisably a closed-list PR system; independent candidates were a graft, not a redesign.
Stop five: One Movement (ZACC 42/2023, 4 December 2023)
Predictably, the graft was challenged. One Movement South Africa NPC v President [2023] ZACC 42 came directly to the Constitutional Court. Zondo CJ wrote the lead judgment; Kollapen J wrote separately on the signature challenge; Theron J dissented in part.
Two issues mattered:
The signature requirement. The Electoral Amendment Act required independents to gather signatures equal to 15% of the previous-election quota in each region they wished to contest. The Court held this was an unjustifiable limitation on the rights to associate, to make political choices, and to stand for office. The remedy was a reading-in: 1,000 signatures per region became the interim threshold, with Parliament given 24 months to fix it.
The recalculation challenge. OSA also attacked items 7, 12 and 23 of Schedule 1A — the provisions governing forfeiture, surplus distribution and recalculation of seats when independents are in the mix. The applicant said these put independent candidates at a competitive disadvantage compared to political parties because, where parties could share the spoils of “surplus” votes, independents could not. The Court (majority) dismissed this challenge. The basic structural choice — that votes for an independent could not be recycled across regions or topped up from the national list — was held to be a defensible legislative choice flowing from the very nature of an independent candidacy.
Notice what was being argued and what was being assumed. Everyone — applicants, respondents, the Court — was treating Schedule 1A as the thing that needed new rules to accommodate independent candidates. Nobody asked whether the original Schedule 1A had, in its quiet bureaucratic way, already done so.
The bit I really want to talk about
In 2003, by section 25 of the Electoral Laws Amendment Act 34 of 2003, Parliament inserted Schedule 1A into the Electoral Act. Schedule 1A is the seat-allocation engine. It is dense, formulaic, and reads like a chartered accountant’s nightmare. Buried inside it is item 7(1). I will quote it in full, because the whole argument turns on it:
7. (1) If a party has submitted a national or a regional list containing fewer names than the number of its provisional allocation of seats which would have been filled from such list in terms of item 8 or 9 had such provisional allocation been the final allocation, it forfeits a number of seats equal to the deficit.
Read that again. Slowly.
What it says is: if a party has, say, three names on its list, and its share of the vote provisionally entitles it to five seats, it does not lose its three seats. It loses only the deficit — the two seats it cannot fill because it has run out of names. The three names get seated. The two extra seats are redistributed among the other parties under the recalculation rules in items 7(2) and 7(3).
Now consider the limiting case. Suppose a party — and remember, the Electoral Act, as a piece of statutory drafting, defines “registered party” as a party registered in terms of section 15 of the Electoral Commission Act, a provision which, throughout all of this litigation, was never itself impugned — fields a list with one name. Suppose that name’s share of the national vote, when it is run through the items 5 and 6 quotas, produces a provisional allocation of, say, four seats.
What does item 7(1) say happens? The single named candidate takes their seat. The other three seats are forfeited and recalculated. Job done. Our one-name party is now represented in the National Assembly by the single human being whose name was on the list.
A “party of one” is, in any sense that matters to the person actually being elected, an independent candidate.
The Electoral Act, in other words, already contained a path by which an individual could stand for the National Assembly without joining anyone else’s organisation. They simply had to register a vehicle — a “party”, in the dry administrative sense of the term — with their name on the list. The vehicle could have one member. It could have one name on its list. The forfeiture rule in item 7(1) would catch any “excess” seats and redistribute them. The candidate would still be seated.
This is not a strained or formalistic reading — it is what item 7(1) says. Is the result any stranger than the post-New Nation architecture, where independent candidates have to gather 1,000 signatures per region and where their “surplus” votes are essentially binned? Hardly.
Did the applicants make this argument? No.
Did the Constitutional Court engage with it? Also no.
The High Court came closest. Desai J said, almost in passing, at paragraph 7 of his judgment: “The First Applicant registered or intended to register a political party. If that party wins enough votes in the national election, any member of that party could be elected to public office.” He used this to suggest the applicants did not actually need the relief they sought. He used it badly — because forming a multi-member party is not the same as standing alone — but the seed of the point was right there in his judgment, and nobody on appeal picked it up.
Madlanga J’s majority opinion is 128 paragraphs long. The word “Schedule” appears, but Schedule 1A — the operative mechanism that actually translates votes into seats — never gets a proper unpacking. The Court took it as a given that the existing system required party membership for a seat. It then spent paragraph after paragraph proving, with international comparators and constitutional values, that requiring party membership was bad. It pulled values out of section 19, out of section 18, out of section 1(a), out of August, out of Ramakatsa. It produced lovely jurisprudence on negative rights of association. It cited Alexis de Tocqueville.
What it never did was read the formula. Had any of the parties run the numbers through Schedule 1A, they would have noticed that the system was already perfectly capable of seating a single human being whose name appeared on a registered party’s list. The list could have one entry. The “party” could be a paper-thin legal vehicle. The seat would still be the seat.
The Constitutional Court did not, as it must when interpreting a statute, read the statute. It read its own values and announced that the right was there because it had to be there. It then, in deference to Parliament, suspended the declaration so Parliament could go and build the very thing the statute, on a less squeamish reading, already had.
This is what I mean when I say the Court sucked values out of the air. There was no need to. They were sitting in item 7(1) of a Schedule that had been on the statute book since 2003.
There is a serious version of this critique that is worth stating without the snark.
When a court is asked to declare a statute unconstitutional for what it fails to provide, the court’s first duty is to read the statute the way Parliament drafted it and ask whether the alleged gap really is a gap. If a workable interpretation already exists within the four corners of the Act, the court should prefer it. That is the avoidance canon; it is also the rule of constitutional subsidiarity, and the rule about reading-down statutes to save them. The Constitutional Court itself has said as much, repeatedly, in Hyundai and Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors and in countless cases since.
In New Nation Movement, the Court did not perform that exercise on Schedule 1A. It accepted at face value that the Electoral Act required party membership, even though the seat-allocation mechanics did not in fact require it. It then leapt to the constitutional values level and declared the Act invalid. The remedy was not a reading-in or a reading-down. It was a strike-down, suspended, on the basis that Parliament would build the missing thing from scratch.
You can think this is fine — that the right ought to be enforced at the constitutional level even if a workable statutory route exists. You can also think this is a missed opportunity to do less judicial damage. I think it is the latter.
The final irony
After all of this — five judgments, two extensions, two Amendment Acts, and hundreds of pages of jurisprudence on the negative right to associate — when the 2024 general election finally rolled around, our Khoisan princess, Chantal Dawn Revell, the second applicant whose case carried the whole challenge from the Western Cape High Court to the Constitutional Court and back, did not even stand as an independent candidate.
The principal beneficiary of the right she had fought five years to establish did not exercise it. Not because she had to — of course she didn’t, that is precisely the negative-right-to-associate point Madlanga J spent so much energy defending — but because the entire constitutional architecture of independent candidacy in South Africa was built around an asserted need that, in the end, the person asserting it did not personally have.
The plumbing did not need to be ripped out. The plumbing already worked. The Constitutional Court walked into a perfectly serviceable bathroom, declared it unconstitutional, and told Parliament to rebuild it from a bare slab. Parliament obliged, badly, with a graft of signature thresholds and recalculation rules that promptly got challenged again in One Movement.
Meanwhile, the Electoral Act, in item 7(1) of Schedule 1A, had quietly been saying for two decades: if you want to be a party of one, just put one name on the list. The forfeiture rule will tidy up the rest.
Was there precedent for the notion of a “party of one”? Yes — and it predates all of this by almost two years. Even Brandi Carlile knew a party of one could exist:
A party of one. It was always there. Nobody asked.