What happens if an independent MP resigns or dies? Parly hears concerns about Electoral Amendment Bill

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A voter casts her ballot at a polling station at the Johannesburg Muslim School in Newtown.
A voter casts her ballot at a polling station at the Johannesburg Muslim School in Newtown.
Luca Sola, AFP
  • Members of the Portfolio Committee on Home Affairs raised concerns about aspects of the Electoral Amendment Bill.
  • The bill proposes changes to include independent candidates. 
  • MPs have raised concerns about the seats that will be left vacant when independent candidates resign or die. 

If an independent candidate dies or resigns while in office, their seats will not be filled for the remainder of the term, according to the Electoral Amendment Bill, which is being considered by Parliament. 

Members of the Portfolio Committee on Home Affairs raised concerns about the bill. 

The 2020 Constitutional Court judgment necessitated amendments to the electoral system. 

The apex court ordered that the electoral legislation be amended to allow for independent candidates to stand for provincial legislatures and the National Assembly. 

READ | Police, intelligence failed to stop July unrest - but executive also to blame, report finds

Minister of Home Affairs Aaron Motsoaledi answered questions related to the bill on Tuesday. 

A ministerial advisory committee had placed two options on the table for consideration.

The first would see minimal changes to the Electoral Act, while allowing for the inclusion of independent candidates. 

Cabinet endorsed this first option. The second option, the mixed-member option, would be much more extensive and require more changes, which would resemble a mixed-member proportional system for municipal elections. 

Motsoaledi's office has worked on amendments, based on the minimalist option. 

The bill presented to MPs showed there would be various amendments to clauses of the act, with the bulk under schedule 1A of the Electoral Act of 1998. 

READ | ConCourt rules independent candidates can be part of proportional representation

The broad aspects of the act include outlines for a threshold of minimum requirements that independent candidates would have to meet to qualify to contest elections. 

However, the limitations on filling a vacant seat left by an independent candidate raised concerns for MPs. 

COPE MP Mosiuoa Lekota and IFP MP Liezel van der Merwe raised concerns about this aspect of the bill.

The biggest concern was whether constituencies would be left without representation if a seat was not filled. 

According to the act, an independent candidate, who dies or resigns while serving a term in Parliament or a provincial legislature, will not be filled until the next election. 

Advocate Steven Budlender SC, the legal advisor for the act's amendment, said it would be far too costly to run by-elections for an entire province every time an independent candidate's seat became vacant. 

"The seat will not be filled until the next election. The need for that is there is a risk of very frequent by-elections, and by-elections would have to take place as province-wide by-elections, which would be extremely costly and disruptive," Budlender said. 

Motsoaledi said the legal requirement for the constituency was an administrative one - and, as such, constituencies would not be left unattended. 

The committee will now have to undertake a gruelling process to consider the bill, which Parliament needs to pass by June. 

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