Electoral Reform: Are The Electoral Task Team’s “Core Values” Still Relevant?

The Helen Suzman Foundation is producing a series of briefs on electoral reform in South Africa. Following the landmark decision of the Constitutional Court to allow independent candidates to contest national and provincial elections, this series will examine the road ahead at the policy, legislative, and institutional level. This brief, the third in our series, will reconsider the core values for an electoral system identified by the Electoral Task Team in 2003.


In reviewing the electoral system before the 2004 elections, the Electoral Task Team[1] identified certain “core values” that our electoral system should realise – fairness, inclusivity, simplicity and accountability. These “core values” have been held up as guiding lights for Parliament as it undertakes the task of electoral reform following the Constitutional Court’s order in New Nation Movement.[2]

This brief is part of a series considering the implications of the order in New Nation Movement. This brief will critically assess the suitability of the Electoral Task Team’s “core values” for guiding the electoral reform process. The “core values” will be tested in light of the values and rights enshrined in our Constitution. Since no electoral system can optimise all of these “core values”, this brief will also consider the trade-offs between values which Parliament may make.


The Report of the Electoral Task Team (Report) describes the value of fairness in electoral terms as requiring that every eligible voter must have the opportunity to vote and that each vote should be of equal value.[3]

Fairness as a constitutional value is derived from the founding values of human dignity and equality in section 1(c).[4] Treating people with human dignity and with respect for their equal worth, requires giving all eligible voters[5] an equal say in who will represent us in our legislatures. This was eloquently expressed by the Constitutional Court in August:

“The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.”[6]

Fairness bears special importance in our electoral system in light of our history of disenfranchisement and exclusion, and the transformative mandate of our Constitution.[7] The value of fairness is given effect by section 19 of the Constitution, which confers on all citizens the right to “free, fair and regular elections” and confers on all citizens the right to vote in elections.

Giving every vote equal value implies that the election should result in an outcome that reflects the aggregated wishes of the electorate.[8] Proportional representation systems are inherently fair in that they yield such outcomes. In this way, the value of fairness underlies the Constitutional entrenchment of an electoral system that “results, in general, in proportional representation”.[9]

In retaining the current electoral system, which achieves a remarkably high degree of proportionality, Parliament appears to have chosen to optimise the value of fairness in a trade-off against accountability. While Parliament is empowered to make these sorts of trade-offs, it may be questioned whether a similar trade-off is desirable now.


Inclusivity is referred to in the Report as the value placed on the diverse “political preferences” of the electorate being represented in our legislatures.[10] The value of inclusivity can be derived from section 1(d) of the Constitution, which enshrines a “multi-party system of democratic government” as a founding constitutional value.

In UDM II, the Constitutional Court explained the meaning of multi-party democracy. It said that multi-party democracy “clearly excludes a one-party state, or a system of government in which a limited number of parties are entitled to compete for office.”[11] The Court further explained that “[a] multi‑party democracy contemplates a political order in which it is permissible for different political groups to organise, promote their views through public debate and participate in free and fair elections”.[12]Like fairness, the value of inclusivity holds heightened importance in light of our history in which dissenting political voices were excluded and sought to be silenced.[13]

Inclusivity is described in the Report as requiring that “every attempt should be made to allow the widest possible degree of participation by various political preferences in the representative legislatures”.[14] It was on the basis of inclusivity that the Electoral Task Team recommended that no legal threshold for representation should be applied.[15]

Our current electoral system has an exceptionally low threshold for minority parties – enabling maximum minority representation. This aspect of the design of our electoral system may have been more influenced by pragmatic considerations of nation-building and social cohesion in the early years of our democracy than a requirement imposed by the Constitution.[16] While our Constitution does place a value on the representation of a plurality of voices, it is not clear that maximum minority representation is constitutionally required. In UDM II, the Constitutional Court recognised that the participation of different political groups in elections “may be subjected to reasonable regulation compatible with an open and democratic society.”[17]

It is possible that a higher threshold for representation could be imposed without undermining multi-party democracy. Chowdry expresses the view that low thresholds of representation may contribute to opposition party fragmentation and entrench dominance in dominant party democracies.[18] He contends that low thresholds hamper political competition because they reduce incentives toward party aggregation.[19] A trade-off in inclusivity may result in greater political competition and the possibility of alternation – restoring the electoral accountability which is absent in dominant party democracies.

The Electoral Task Team understood inclusivity in electoral terms as largely a matter of representation of a diversity of political views, while the gender representivity of our elected representatives was given less attention.[20] It has been persuasively argued that inclusivity must also encompass the inclusion of women in our legislatures.[21] Our legislatures should be broadly representative of the South African population in light of the fact that the Constitution enshrines non-racialism and non-sexism as founding constitutional values[22] and enshrines a right to equality.[23]


The Report describes the value of simplicity as requiring that the electoral system “be accessible to practically every voter, easy to understand and easy to participate in.”[24] Essentially, this requires a simple balloting procedure.

Simplicity is not a constitutional value. However, a simple balloting procedure may be essential to facilitating the exercise of the right to vote enshrined in section 19(2) of the Constitution. An overly complicated balloting procedure that does not enable all eligible voters, of varying education levels, to vote without too much difficulty may infringe the right to vote.[25] An overly complicated balloting procedure could lead to the voices of some not being counted through an increased number of spoilt ballots or reduced voter participation.

It is difficult to determine at what point increased complexity of the balloting procedure may infringe the right to vote. The legislative provisions prescribing the balloting procedure are intended to facilitate the exercise of the right to vote and will, therefore, only infringe the right if those who desire to exercise the right are unable to do so even though they “act reasonably in pursuit of the right”.[26] The Constitutional Court has recognised that in determining the reasonableness of the steps taken it must be considered that “the process of voting inevitably imposes burdens upon a citizen”.[27] However, Parliament should not impose unreasonable burdens on voters.

The need for simplicity is not a static requirement since it is linked to literacy and education levels, and to familiarity with the electoral process. While our current electoral system provides for a remarkably simple balloting procedure, simplicity does not seem to provide a strong motivation against a mixed electoral system. The simplicity of this system may have been necessary in our first elections as a new democracy, but our population is now experienced with elections. The majority of the Electoral Task Team noted that South African voters are accustomed to multi-balloting and that the use of a constituency ballot paper in addition to a national / provincial ballot paper would not undermine simplicity.[28] However, the majority viewed open party lists as being impractical given the literacy rates in the country at the time.

While it is important to foster voter participation and inclusion in the political process, a trade-off in simplicity may result in our electoral system better realising other values. Provided that the balloting procedure is not so complicated that it undermines the right to vote, Parliament is empowered to make that trade-off.


Accountability was the value with which the Electoral Task Team was most concerned. The majority acknowledged that “no electoral system can simply deliver accountability”.[29] However, the majority viewed the “collective responsibility” delivered by our current electoral system – where parties are held accountable at the ballot box every 5 years – as providing an inadequate level of accountability.[30] The majority recommended that an electoral system be adopted in terms of which individual representatives – not only parties – can be held accountable.[31] The majority’s view was that a mixed member proportional representation system (entailing a mix of constituencies and proportional representation) would better promote accountability by creating a closer link between the electorate and their representatives. This emphasises the need for direct personal accountability, in terms of which individual representatives are answerable to a particular group of voters.[32]

Section 1(d) of the Constitution clearly enshrines accountability as a founding democratic value. This is because accountability is central to what it means for a society to be a democracy in which government is based on the will of the people.[33] While the focus of the majority of the Electoral Task Team clearly centred on accountability, section 1(d) of the Constitution provides that South Africa is founded on the values of “universal adult suffrage, a national common voters’ roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”. The Constitution thus envisages electoral mechanisms that will ensure a government that accounts to the nation for its actions, responds to the needs of the people and openly explains the reasons for its decision-making.[34]

Our current electoral system does give effect to the value of accountability in some ways. Regular elections are seen as providing a strong incentive for accountable governance. The assumption is that if a party fails to deliver on its promises to the electorate, it will be punished at the ballot box in the next election. In addition, our current system provides a measure of individual accountability – albeit not directly to the electorate. Individual representatives are accountable to their party leadership.[35]

It is trite that an electoral system on its own is not a sufficient guarantor of accountable governance. And electoral reform is not a panacea to the failures of governance confronting us. Nevertheless, our electoral system can make a greater contribution to accountability than it currently does. The manner in which we elect our representatives plays a critical role in creating incentives or disincentives for accountability.

In designing the electoral system, Parliament should seek to give effect to our constitutional values. Although Parliament has no legal obligation to optimise accountability, Parliament must design the electoral system in such a way so as to ensure an adequate level of accountability.[36] An electoral system that does not provide adequate accountability to the electorate would be fundamentally inconsistent with representative democracy and our constitutional scheme. In addition, accountable governance is necessary for the fulfilment of many rights in the Bill of Rights. It follows that Parliament has an obligation under section 7(2) of the Constitution to ensure that the design of our electoral system ensures an adequate level of accountability to the electorate.[37]

Does this require Parliament to adopt a mixed member proportional representation system in order to give effect to accountability? The Constitution certainly permits the adoption of an electoral system which better realises accountability, but it does not require it. Whether a particular electoral system would better realise the value of accountability is a political rather than a legal question.[38] This was most starkly demonstrated by the Constitutional Court’s judgment in New Nation Movement. The Court refused to engage with the argument raised by the applicants that a mixed system is preferable because it would better give effect to accountability.[39] The Court held that this question fell exclusively within Parliament’s remit.

Although a mixed system may better give effect to accountability, it cannot be said that our current system undermines accountability in a manner that is inconsistent with the Constitution. A holding that our current system – which was constitutionally entrenched for the 1994 and 1999 elections – ­undermines accountability would impermissibly introduce an internal contradiction into the Constitution.[40]There are also indications in the text of the Constitution that accountability is given greater importance in local government elections whereas fairness carries more weight in national and provincial elections.[41] While the Constitution only requires proportional outcomes for national and provincial elections, the Constitution expressly provides Parliament with a choice of a mixed electoral system for local elections (combining proportional representation and a system of ward representation).[42]

It, thus, falls to Parliament to determine whether a trade-off in fairness, inclusivity and simplicity is warranted in order to optimise accountability.


The Constitution is a democratic document – adopted by the people of South Africa, through our elected representatives, as the supreme law of our nation.[43] It enshrines the values on which our nation is founded and by which we have agreed to govern ourselves.[44]

While Parliament may make trade-offs between our constitutionally enshrined founding values in designing our electoral system, we should have a say in the trade-offs being made. It is, therefore, imperative that civil society and, most importantly, the public actively participate in the electoral reform process.

Catherine Kruyer
Legal Researcher

[1]The Electoral Task Team was appointed by Cabinet to draft legislation for an electoral system for the 2004 elections. This was necessitated because the electoral system prescribed under the interim Constitution was only carried over to the first elections held under the final Constitution. In carrying out its mandate, the Electoral Task Team was to be guided by the “controlling constitutional parameters”. See Report of the Electoral Task Team (ETT Report), released January 2003, available at https://pmg.org.za/policy-document/346/ at 1-2.

[2]New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11 (New Nation Movement).

[3]Report of the Electoral Task Team (ETT Report), released January 2003, available at https://pmg.org.za/policy-document/346/ at p 16.

[4]James and Hadland “Shared aspirations: The imperative of accountability in South Africa’s electoral system” in Electoral Models for South Africa: Reflections and Options – Electoral Task Team Review Roundtable (2003; Konrad Adenauer Foundation) at 19.

[5] Eligibility to vote must be determined non-restrictively. Section 19(2) of the Constitution confers the right to vote on all South African citizens. The Constitution further prescribes a minimum voting age of 18 years.

[6]August v Electoral Commission [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 at para 17.

[7] In his dissenting judgment in New Nation Movement above n 1 at para 221, Justice Froneman explains the transformative role of the value of fairness, which he terms “equality in political voice”, in our electoral system. He states: “The ‘never again’ impulse of section 19 is therefore not merely that whole categories of citizens must not be disenfranchised, but also that never again must some people’s voices count more than others in our representative democracy. The rationale thus goes beyond disenfranchisement, to the distortion of equality in political voice.”

[8]James and Hadland above n 3 at 19

[9]Sections 46(1)(d) and 105(1)(d) of the Constitution.

[10] ETT Report above n 2 at 16.

[11]United Democratic Movement v President of the Republic of South Africa [2002] ZACC 21; 2003 (1) SA 495 (CC); 2002 (11) BCLR 1179 (CC) (UDM II) at para 24.

[12] Id.

[13]James and Hadland above n 3 at 20-1.

[14]ETT Report above n 2 at 16

[15]ETT Report id at 17.

[16]See James and Hadland above n 3 at 20-1 and Lodge “Electoral options and core values: A summary” in Electoral Models for South Africa: Reflections and Options – Electoral Task Team Review Roundtable (2003; Konrad Adenauer Foundation) at 44.

[17]UDM II above n 10 at para 26. The Court cautioned, however, that “[l]aws which go beyond that, and which undermine multi-party democracy, will be invalid.”

[18]Chowdry ‘He had a Mandate: The South African Constitutional Court and the African National Congress in a Dominant Party Democracy’ (2009) 2 Constitutional Court Review 1 at 25-6.


[20] See, for example, James and Hadland above n 3 at 19.

[21] Molokomme “The Impact of an Electoral System on Women’s Representation” in Electoral Models for South Africa: Reflections and Options – Electoral Task Team Review Roundtable (2003; Konrad Adenauer Foundation) at 30.

[22]Section 1(b) of the Constitution.

[23]Section 9 of the Constitution. In addition, sections 46(1) and 105(1) of the Constitution provide that our National Assembly and provincial Legislatures consist of “women and men”.

[24]ETT Report above n 2 at 17. Simplicity also relates to the electorate being able to understand the results of an election and the relationship between votes and seats.

[25]Tlakula “The Electoral System and Human Rights” in Electoral Models for South Africa: Reflections and Options – Electoral Task Team Review Roundtable (2003; Konrad Adenauer Foundation) at 28.

[26]New National Party v Government of the Republic of South Africa [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 at para 23.

[27]Richter v The Minister for Home Affairs [2009] ZACC 3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC) at para 58.

[28]ETT Report above n 2 at 17

[29]Id at 18.

[30] Id at 17-18.

[31]Id at 19

[32]Lodge above n 15 at 41.

[33]Preamble to the Constitution.

[34]Roux “Democracy” in Woolman et al (eds) Constitutional Law of South Africa Service 6 (2014) at 64

[35]Lodge above n 15 at 43.

[36]UDM II above n 10 at paras 19 and 26.

[37] This reasoning is derived from the Constitutional Court’s decision in from Glenister v President of the Republic of South Africa [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC) (Glenister II) at paras 189 and 194. Glenister II dealt with Parliament’s obligation under section 7(2) of the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights when enacting legislation. TheCourt in Glenister II held that Parliament has to act “reasonably and effectively” when taking steps to respect, protect, promote and fulfil constitutional rights. The Court derived from this an obligation to establish adequately independent oversight mechanisms. This was because establishing an oversight mechanism that lacked adequate independence “would not constitute a reasonable step”. The Court accordingly declared a chapter of the South African Police Service Act 68 of 1995 invalid to the extent that it failed to ensure an adequate level of independence to the Directorate of Priority Crime Investigation (more commonly known as ‘the Hawks’).

[38]UDM II above n 10 at para 11 and New Nation Movement above n 1 at para 15.

[39]New Nation Movement id at para 15.

[40] In S v Rens [1995] ZACC 15; 1996 (1) SA 1218 (CC); 1996 (2) BCLR 155 (CC) at para 17, the Constitutional Court held that “[i]t was not to be assumed that provisions in the same constitution are contradictory” and that constitutional provisions “ought, if possible, to be construed in such a way as to harmonise with one another”. See also New NationMovement id at para 18; and Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC) at para 48.

[41]New National Movement id at paras 224-5 (Justice Froneman’s dissent).

[42]Comparesections 46(1)(d) and 105(1)(d) with section 157(2) of the Constitution. New Nation Movement id at para 226 (Justice Froneman’s dissent).

[43]Preamble of the Constitution.

[44]Section 1 of the Constitution. See S v Makwanyane[1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 at para 261.