Proportional representation and secret ballots in SA’s coalition future - News24

Martin van Staden
Tshwane was widely regarded as the test case for stable coalition government: the Democratic Alliance (DA)-led multi-party reformist coalition had a majority in the council and was therefore not dependent on parties aligned with the African National Congress (ANC) or its ideology.

Recent events, particularly the speaker election earlier this month, casts doubt on the success of this experiment.

The reformist coalition had agreed to elect ActionSA's Kholofelo Morodi as speaker. In the event, the Electoral Commission (IEC) deemed the DA caucus’s 69 votes to be 'spoiled' and declared the runner-up, Mncedi Ndzwanana, as speaker. The reason for this can be traced back to a 1998 Act of Parliament forcing council office-bearer elections to be held as secret ballots.

The DA, in an effort to identify dissidents who break the party line, required its councillors to mark their votes with an assigned number, thus negating the secrecy of the vote.

Inelegant handling 

While the Tshwane coalition has had its ructions, this is not an example of coalition failure. When both Parliament and the IEC have taken steps against a coalition, it is highly unlikely that it would succeed, no matter how well the coalition partners get along.

The DA caucus' handling of the speaker election was inelegant and, arguably, unlawful. But there is a difference between a spoiled ballot and an unlawful electoral practice. 

A spoiled ballot in a free and open democracy is a ballot that does not clearly show how a vote was cast. If it is obvious from the ballot who the voter voted for, the ballot cannot be spoiled unless it was unambiguously communicated to the voter beforehand that voting in a particular way would not be accepted.

The DA caucus' votes were clear, and as a result cannot be deemed 'spoiled'. The IEC has harmed its own legitimacy during a crucial time in South Africa's democratic development by grasping at straws to arrive at a particular electoral outcome. 

Parliamentary diktat

If the IEC has reason – and in this case, I think it might – to believe the DA caucus conducted itself in contravention of schedule 3 of the Municipal Structures Act of 1998, the correct thing to do would be to approach the courts since this is clearly a legal dispute. If the court is to find in favour of the IEC, the election can be re-run. Legal disputes involving the electoral authority in a free and open democracy are not resolved by unilateral action.

But there is something nefarious about the Municipal Structures Act – a law drawn up by Parliament – dictating rules and procedures to municipal councils.South African constitutional law recognises the principle of subsidiarity, which effectively says that a government function must vest at the lowest (that is, closest to the people) level it can effectively be exercised. There is also a principle of cooperative governance found in section 40(1) of the Constitution, which clearly states the three spheres of government (central, provincial, municipal) are not superior or inferior to one another but are rather ‘interdependent and interrelated’. Parliament is not the 'boss' of 'lower' assemblies. 

Somehow, Parliament figured it could include a provision in the Municipal Structures Act that dictated to municipal councils that speakers, mayors, and others, must be elected on a secret ballot, when section 160(6)(b) of the Constitution, in fact, empowers a municipal council to 'prescribe rules and orders for its [own] business and proceedings'. Whether or not a secret ballot is utilised is something that an assembly decides for itself on a case-by-case basis. Part A of Schedule 3 of the Constitution, of which schedule 3 of the Municipal Structures Act is in substance a reproduction, unambiguously only applies to institutions in the central and provincial spheres, not municipalities.

Parliament dictating a secret ballot to municipal councils betrays a superiority complex that is without clear constitutional footing. Any legislation the Constitution allows Parliament to adopt regarding municipal councils must be compatible with every other constitutional provision and principle, including subsidiarity and cooperative governance. Indeed, section 151(4) of the Constitution provides that 'The national or a provincial government may not compromise or impede a municipality's ability or right to exercise its powers or perform its functions'.

Rules of the game

It seems that Parliament requiring secret ballots in municipal councils might be unconstitutional. But more than that, if one appreciates the fact that coalition politics is the future of South Africa in the municipal, provincial, and central spheres, secret ballots are also unnecessarily disruptive to an already raucous phenomenon.

A secret ballot among political representatives must be distinguished from the firm democratic rule that the public's votes in elections must be anonymous.

Coalition partners, among themselves and in full view of their voters, must be able to form agreements with one another and hold one another to account. Government must remain respectfully distant from deciding the rules of the coalition game – because, ultimately government itself is a player. The rules of the game are predetermined in the Constitution before the game begins.

When government, via Parliament, introduces disruptive devices like the secret ballot, coalition politics becomes significantly more opaque. Imagine the chaos if the ANC, Economic Freedom Fighters, and Patriotic Alliance formed a majority coalition in 2024 by an enforceable agreement, but the National Assembly, through a secret ballot, elected John Steenhuisen as President and Pieter Groenewald as Speaker.

In this respect, it might also be worth considering a constitutional amendment to Schedule 3 of the Constitution to remove the secret ballot requirement for legislative elections of office-bearers in the central and provincial spheres.

This would only make sense in a proportional representation system like South Africa’s. In such a system, voters bestow a mandate upon a political party, not upon individual candidates. In a constituency system, the phenomenon of allowing an individual representative to 'vote their conscience' makes sense because, to a large degree, that is precisely what voters entrusted that representative to do. But a political party has no conscience, and the consciences of its representatives carry no mandates and are therefore largely irrelevant. The electorate must be able to see how the representatives of the party they put in power cast their votes.

Future governments – however comprised – will likely be coalition governments. One hopes that these governments take the new reality of coalition politics seriously enough to bring about necessary reform. These reforms must include amending the Municipal Structures Act to allow municipal councils to determine their own rules and procedures and potentially amending the Constitution to remove the secret ballot requirement per se. 

Martin van Staden is Deputy Head of Policy Research at the Institute of Race Relations.

https://www.news24.com/news24/opinions/columnists/guestcolumn/opinion-proportional-representation-and-secret-ballots-in-sas-coalition-future-20230330