Candidate lists, party power and the constitutional limits of judicial repair
Heinrich Valentine | Managing Director | MVMT Attorneys Inc
South Africa’s dispute over one-name proportional-representation candidate lists began with a deceptively simple question: when a voter marks a ballot for a political party, how much must that voter know about the people who may ultimately occupy the seats won by that party?
The Electoral Court has now supplied the statutory answer. In Democratic Alliance v ActionSA and Others, delivered on 30 October 2026, it dismissed the DA’s challenge to the lists submitted by ActionSA, the EFF, the MK Party and GOOD. It held that item 17 of Schedule 1 to the Local Government: Municipal Structures Act 117 of 1998 permits supplementation once the votes are counted and a party’s actual seat entitlement is known.
It rejected the allegations of bad faith and in fraudem legis, dismissed the review of the Electoral Commission’s certification decision and refused the consequential relief sought against the four parties.
That result is important, but it is not the whole story. The Court postponed the DA’s conditional constitutional challenge sine die. It did not decide that the present candidate-list regime is constitutionally ideal. It decided that the statutory scheme cannot be rewritten in urgent litigation, after nominations have closed, by importing a minimum list length, a motive test and a forfeiture consequence that Parliament did not enact.
The larger constitutional question therefore remains. It sits at the intersection of four ideas that do not fit together perfectly: South Africa’s party-centred system of proportional representation; the voter’s interest in making an informed political choice; the requirement that votes translate fairly into seats; and the institutional boundary between interpreting legislation and redesigning an electoral system.
Seen together with the Constitutional Court’s intervention in the ANC candidate-submission dispute, and with the continuing debate generated by My Vote Counts, the judgment reveals a recurring problem in South African electoral law. Electoral legitimacy depends not only on substantive democratic values, but also on clear rules, equal treatment and remedies that do not disenfranchise the very voters they are meant to protect.
The system begins with the party
At municipal level, South Africa uses a mixed electoral system. Ward councillors are elected directly in geographic constituencies. The remaining seats are filled through proportional representation so that, broadly speaking, the composition of the council reflects the support received by political parties.
On the PR ballot the voter chooses a party. The voter does not rank the party’s individual candidates.
That design gives political parties an unusually powerful role. They select and rank candidates, and the Commission allocates the seats won by a party according to the order appearing on its list. In New Nation Movement, the Constitutional Court described the orthodox position within a party-list system in direct terms: once voters have voted for a party, it falls to that party to identify its representatives, who are in turn accountable to the party.
This does not make individual candidates constitutionally irrelevant. Councillors exercise public power, vote on budgets and by-laws, elect mayors and speakers, and owe duties to the municipality and its residents. But the route by which a PR councillor enters office remains mediated by the party. Our electoral architecture combines a public act of voting with a largely internal act of candidate selection.
The informed vote is also part of the constitutional picture
The DA’s case drew force from a different constitutional principle. Section 19 protects the right to make political choices and to vote in free and fair elections. Section 32 protects access to information. In My Vote Counts, the Constitutional Court held that the proper exercise of the franchise is substantially dependent on information and that section 19 implicitly protects an informed exercise of the right to vote.
That case concerned information about private political funding, not candidate lists. The distinction matters. Funding information may reveal hidden influence, corruption or the interests to which a party or candidate could be responsive. Candidate identity, record and suitability may also matter to a voter, but it does not follow automatically that every category of potentially useful political information must be disclosed in the same form, at the same time, or by judicial implication.
The Electoral Court placed particular weight on that distinction. Drawing on UDM II, it held that the content of the right to information must be understood within the architecture of a party-list PR system. Candidate lists serve several functions: they inform voters, the public and the Commission; they provide the source from which seats are populated; they enable vacancies and deficiencies to be addressed; and they help regulate an orderly election. The information interest cannot be isolated from those other purposes or from the legislation enacted under section 157 of the Constitution.
There is nevertheless real merit in the democratic concern. A voter may reasonably want to know whether a party’s list rewards competence, loyalty, factional power, celebrity or patronage. Candidate information allows journalists, civil society and competing parties to test whether the people who may exercise public power are suitable to do so. The fact that many voters do not study municipal PR lists does not make the information constitutionally worthless. Rights are not measured by how frequently every citizen exercises them.
The harder question is whether that concern has already been translated into a legal obligation requiring a complete and final list before voting day. The Electoral Court’s answer was no. That answer came from the enacted scheme, not from a rejection of transparency as a constitutional value.
What item 17 means after the judgment
Item 17 addresses an insufficient party list. Where a list contains fewer candidates than the number of seats to which the party is entitled, the Commission must notify the party of the exact shortfall and request a supplemented list. The trigger is objective: the party’s entitlement, calculated after the vote, exceeds the number of names available.
The Court identified three features of the scheme that defeated the DA’s interpretation. First, item 11 prescribes a maximum number of candidates but no minimum. Secondly, the insufficiency contemplated by item 17 cannot be known until votes are counted and seats allocated under item 13. Thirdly, item 17 must therefore operate during the period in which item 20 generally prohibits parties from changing or supplementing lists. Item 20 had to be read subject to the specific mechanism in item 17; otherwise item 17 would be rendered largely nugatory and voters could be deprived of the proportional representation produced by their ballots.
The DA argued that item 17 was merely a safety valve for a party that genuinely and unexpectedly underestimated its support. The Court rejected that qualification because the legislation contains no requirement of inadvertence, genuine belief or reasonable forecasting. The proposed test would also have required the Commission to decide why a list was short, whether a party’s electoral expectation was sincere, whether the prediction was reasonable and whether the shortfall was sufficiently unforeseen.
Those questions are not details that a court can improvise. They define an electoral regulatory regime. A mechanical rule based on an ascertainable shortfall would become a discretionary inquiry into political intention at the most time-sensitive stage of an election. The Court correctly treated that as a policy choice for Parliament.
Comparative practice may show that South Africa’s mechanism is unusual and that other list-PR systems generally require complete lists before an election. That may support reform. It does not remove words from item 17 or add a state-of-mind requirement to it. An unusual statute remains the statute Parliament enacted.
ActionSA’s model complicates the transparency critique
ActionSA did not claim a right to choose representatives arbitrarily after the electorate had voted. Its published candidate-selection policy provides that its post-election PR list is populated principally by unelected ward candidates ranked according to the percentage support achieved in their wards, subject to stated balancing considerations.
There is a democratic idea behind that model. Instead of allowing a party executive to settle the decisive ranking entirely before the election, the party uses actual electoral performance to rank candidates who campaigned publicly in wards and were tested by voters. On that account, the ballot does not conceal the selection criterion; it supplies the data by which much of the ranking is produced.
The model is not beyond criticism. A voter casting a PR ballot still does not know the final order of the people who may take office. Ward percentages are not perfectly comparable across communities. Balancing considerations may reduce the mechanical force of the ranking, and the method may favour strong local campaigners over candidates with specialist skills needed in a council.
But those are arguments about the quality of a candidate-selection model. They do not establish fraud on the law. The Court held that ActionSA’s policy, published months before the nomination deadline, directly contradicted concealment or disguise. More fundamentally, there was no peremptory minimum-list requirement to evade. Deliberate use of a mechanism that the statute permits is not converted into fraud merely because a political opponent dislikes the purpose for which it is used.
The remedy matters as much as the principle
Election cases are never only about abstract interpretation. Relief alters ballots, representation and the value of votes. The DA’s proposed orders risked preventing the respondent parties from filling the PR seats their voters earned, or delaying supplementation until after councils had elected office-bearers. Either outcome could have produced councils temporarily constituted on a basis that did not reflect the election result.
The Court recognised the danger. It observed that the practice had, according to the Commission, existed since at least 2011; that nominations had closed and lists had been certified; and that the disruption caused by a constitutional order shortly before voting would be unthinkable. It also noted the allegation that the DA had itself used short lists, including in the current election. A rule turning on subjective motive would produce different legal consequences for objectively similar lists.
The prejudice would fall most directly on voters who did nothing wrong. They were entitled to rely on the Commission’s certification and on the law as it stood when the timetable advanced. Courts must guard against administrative convenience and party strategy defeating constitutional rights. They must also guard against remedies that manufacture disenfranchisement in the name of protecting the franchise.
The ANC dispute adds a second dimension
The Constitutional Court’s order in the ANC candidate-submission dispute arrived while the DA judgment was reserved. Candidate information had been captured on the Commission’s online system before the deadline, but the final submission step had not been completed. The Constitutional Court ordered the inclusion of 181 affected ANC candidates. Its reasons remain awaited.
The Commission then extended equivalent treatment to 32 similarly situated parties. It reasoned that those parties had nominated compliant candidates and paid the required deposits, and that treating them differently from the ANC would be irrational and inconsistent with parity. Thirteen parties that did not satisfy the objective requirements were excluded. ActionSA was among the parties whose affected nominations were recognised on the basis of the records captured before the deadline.
The two disputes are legally distinct. The ANC matter concerns when electronically captured nominations should be treated as effective following a Constitutional Court order. The DA matter concerns whether an admittedly short but validly submitted PR list may deliberately be supplemented once seats are allocated. They should not be collapsed into a single rule.
Together, however, they reveal the same institutional concern. Electoral participation cannot safely depend on hidden purposes, technical formalities whose consequences are uncertain, or standards that become clear only after the deadline. Parties and voters need objective rules, known in advance, that identify what counts as compliance and what follows from non-compliance. Uniform treatment is part of legality, but it is also part of public confidence in the Commission.
My Vote Counts and the limits of analogy
The candidate-list dispute also sits alongside the continuing litigation associated with My Vote Counts. The constitutional value of political information is real, and the funding cases have done important work in explaining why voters require information capable of exposing influence and enabling meaningful political choice.
But the analogy has limits. Information about who funds a party may illuminate interests that are otherwise hidden. A closed-list PR system expressly assigns candidate selection and ranking to political parties, subject to the statutory framework. Extending the informed-vote principle from political funding to a judicially created requirement that every potential PR councillor be finally ranked before voting requires a distinct constitutional and remedial analysis.
The Electoral Court accordingly applied constitutional subsidiarity. A litigant cannot invoke sections 19 and 157 in the abstract while leaving intact the legislation enacted to regulate those rights. If the statutory balance is constitutionally deficient, the legislation must be attacked directly, with the responsible Minister and Parliament before the Court and with a record capable of addressing justification and remedy. That is the challenge the Court postponed, not one it silently decided.
Courts should preserve the distinction between interpretation and reform
A court interpreting item 17 must read it in context and consistently with the Constitution. It may prefer a constitutionally compliant meaning that the text can reasonably bear. What it may not do is construct a detailed pre-election disclosure regime without confronting the institutional and remedial choices that regime entails.
Those choices include how many names a party must submit; when and how lists must be published; whether voters should receive direct notice; what candidate information must be disclosed; how substitutions, deaths, withdrawals and duplicate nominations are treated; what consequence follows from an incomplete list; whether a reserve pool should be permitted; and whether reform should apply prospectively. They also include the larger question whether South Africa should retain closed lists, move towards open lists, or adopt a system that gives voters greater influence over ranking.
Those are legislative-design questions. Parliament can gather evidence, compare electoral systems, consult parties and voters, make transitional arrangements and amend the connected statutes. An urgent court, days before voting and without all necessary constitutional parties before it, cannot safely build that system.
The reform conversation should proceed
The judgment does not mean that candidate transparency is unimportant. It means that transparency must be secured by clear law. The present scheme leaves an uncomfortable gap between the constitutional value of an informed vote and the limited influence a voter has over the identity of a party’s PR representatives.
Parliament should examine at least four questions. First, should every party be required to submit and actively publish a list containing a prescribed minimum number of candidates before voting day? Secondly, should voters have a meaningful way to influence candidate ranking, through an open-list or preferential mechanism? Thirdly, if post-election supplementation remains necessary, what objective circumstances and safeguards should govern it? Fourthly, could a published candidate pool and a disclosed ranking formula provide meaningful transparency without freezing the order before voters have expressed themselves?
Reform should preserve proportionality. Votes cast for a party should translate into the representation those votes earned. It should also improve access to candidate information in a form ordinary voters can realistically use. Publication on a website, or availability from the Commission on payment of a fee, may satisfy a formal requirement while doing little to inform the electorate in practice.
ActionSA’s model adds a worthwhile idea to that debate: electoral performance can itself be a democratic input into list ranking. The model may require safeguards and clearer disclosure, but it challenges the assumption that a list finalised in a party meeting before the election is necessarily more democratic than one produced through a published rule after voters have assessed ward candidates.
The real constitutional question
The useful question is not simply whether voters vote for a party or a person. South Africa’s system makes them vote for a party, but that party sends people into institutions that exercise public power. A healthy democracy must take both facts seriously.
The Constitution supports an informed electorate, accountable representatives, meaningful political choice, equal treatment and proportional outcomes. Those values may point towards a better candidate-list regime. They do not license the selective rewriting of an existing statute in urgent litigation, particularly where the immediate cost would be borne by voters and where the Commission has administered the mechanism openly across several elections.
The Electoral Court has settled the statutory question for the 2026 election. Item 17 applies when the objective shortfall arises after seat allocation. Deliberate reliance on it is not bad faith or fraud, and item 20’s general moratorium does not extinguish the specific supplementation process.
The constitutional question has been deferred, not extinguished. If it returns, it should be confronted directly and on a proper record. The issue will not be whether transparency is desirable in the abstract. It will be how much candidate-level information the Constitution requires within a party-centred PR system, whether the present limitation is justified, and what remedy can improve accountability without discarding votes or destabilising councils.
The lesson connecting the DA case, the ANC order and the My Vote Counts debate is therefore one of constitutional method. Electoral rules must be clear before the contest begins; similarly situated parties must be treated alike; constitutional values must inform statutory interpretation without replacing statutory text; and structural reform must be prospective, participatory and attentive to the value of every vote.
If South Africa wants fuller candidate disclosure or a different relationship between voters and party lists, Parliament should say so expressly and comprehensively. The democratic case for reform is strong enough that it should not depend on pretending the reform was already written into item 17.
Author note
Heinrich Valentine is the Managing Director of MVMT Attorneys Inc. The firm represented ActionSA in Democratic Alliance v ActionSA and Others and acted for ActionSA in litigation concerning the constitutionality of aspects of the Political Party Funding Act. The views expressed are the author’s legal analysis and should be read with that involvement in mind.
Sources and further reading
- Democratic Alliance v ActionSA and Others (0016/26EC) [2026] ZAEC 12 (30 October 2026)
- Constitution of the Republic of South Africa, 1996, sections 1, 19, 32, 157 and 190
- Local Government Municipal Structures Act 117 of 1998, Schedule 1, items 11, 17 and 20
- My Vote Counts NPC v Minister of Justice and Correctional Services [2018] ZACC 17
- New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11
- Electoral Commission statement extending relief to similarly situated parties, 16 October 2026
- Constitutional Court order in ANC v Electoral Commission, 15 October 2026
