Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Small parties, big influence: What can be done about unstable coalition governments?
The instability of many coalition and minority governments formed at the local level after the 2021 municipal elections may well be replicated in the other spheres of government if no party wins an overall majority in the National Assembly, or in some provincial legislatures, at the next election. Reducing the number of tiny parties represented in the various legislatures by imposing an electoral threshold may help to limit such instability. But the drawbacks of such a move should be considered carefully.
A few weeks ago, a multiparty coalition led by the Democratic Alliance (DA) ousted the ANC-led coalition government in the Nelson Mandela Bay metro, giving it its fifth change of government in seven years. Then, last week, the minority government of the Johannesburg metro, led by the DA, was seemingly ousted by an ANC-led group that will form yet another minority government — unless the DA’s legal challenge to the removal of its mayor succeeds.
But this is just the tip of the iceberg.
As Daily Maverick election analyst Wayne Sussman pointed out on Wednesday, power has changed hands in a quarter of the metros since the local government election on 1 November last year. If no party wins an overall majority in the National Assembly, or in one or more of the provincial legislatures, the governance instability we see at the local level might well spill over to the national government, or to some provincial governments.
Imagine having a new government with a new president every few months as elected representatives vie for perks and positions on offer to join a governing coalition or a minority government.
There are no quick-fix solutions for the political dysfunction, greed and lack of concern for voters that lie at the heart of the governance problems at all three levels of government in South Africa.
The introduction of independent candidature (or even direct constituency-based elections) is not the magic bullet that some commentators believe it is. But there is one, rather radical, change to the electoral system that could help to reduce the instability of governments in legislatures where no party enjoys an overall majority.
This would be to impose an electoral threshold, requiring a political party to obtain a minimum percentage of the votes to qualify for seats in a legislature.
Some form of this system is in place in several countries in Europe, with the system in place for the German Bundestag elections often being held up as an example. The German electoral system is similar to the system in place for local government elections in South Africa. Every voter gets two votes — one for the candidate of their choice standing in their local constituency, and one for the party of their choice in a proportional representation vote.
Fifty percent of the MPs are elected from individual constituencies in a first-past-the-post election, and the other 50% are topped up from proportional representation party lists to ensure that each party is allocated the number of seats in the legislature proportional to the percentage of votes that party received for the proportional list.
But there is a catch. In German Bundestag elections, a political party must obtain at least 5% of the vote in the proportional representation election (or at least three constituency seats) to be allocated proportional representation seats in the legislature at all. This means a political party that wins 4.5% of all votes cast in a Bundesrat proportional representation election, and no constituency seats, will end up with no seats in the Bundesrat.
Self-evidently, imposing such a threshold will reduce the number of smaller parties represented in the various legislative bodies in South Africa. The higher the threshold, the fewer parties are likely to be represented in each of the legislative bodies. For example, if a 2% threshold had been in place for the 2019 National Assembly election, only the ANC, DA, EFF, IFP and VF+ would have been represented in Parliament. The UDM (2), ATM (2), Good (2), NFP (2), AIC (2), Cope (2), PAC (1), and Al Jamah-A (1), would have failed to win any seats.
The possible impact of imposing a threshold is even more starkly illustrated when we look at the City of Johannesburg Metropolitan Council. Currently, 18 parties are represented in the Metro Council, with eight parties having won only a single seat. If a 2% threshold had been in place for last year’s election, only six parties — the ANC, DA, ActionSA, EFF, PF and IFP — would have been represented in the Council.
Those who argue in favour of imposing an electoral threshold, argue that a reduction in the number of very small parties represented in a legislature is likely to reduce the possibility of government instability. This obviously only applies to systems like ours, where the stability of the government depends on the stability of the support for that government in the legislature. In this system, where the president/premier/mayor is elected by the legislative body and can also be removed from office by a vote of no confidence by that legislative body, the more parties that are represented in the legislative body, the more difficult it would likely be to cobble together a workable government when no party wins an overall majority of seats.
Of course, the number of political parties in a legislature would have no impact on the stability of the government where one party enjoys an overall majority in the legislature — as the ANC has done in the National Assembly since 1994. But where no party obtains a majority, and the president/premier/mayor (and thus the government) depends on the support of several tiny political parties for its survival, things might turn chaotic very soon.
The potential problems are exacerbated when parties decide to support a coalition or minority government without entering into a formal coalition agreement, or when their support has nothing to do with advancing their policy platform, and everything to do with its leaders’ desire for money, power and status.
Germany’s Federal Constitutional Court (BundesVerfassungsGericht) confirmed a few years ago that the 5% threshold for the Bundesrat election was justified “largely because it is necessary to construct a stable majority for the election of a workable government and to maintain it in office, and this goal would be endangered if the Parliament were divided into many small groups.
“Therefore the legislator may qualify, to a certain extent, the aim of the system of proportional representation to ensure that voters’ political opinions are represented as thoroughly as possible”. (In that same judgment, the BundesVerfassungsGericht held that a 3% threshold for elections to the European Parliament was notjustified, because the need for a stable government did not arise at the European level.)
There are other reasons why the introduction of a moderate threshold of 1% or 2% might be attractive in the South African context. Pertinent here is the emergence of small populist parties and parties that in effect serve as vehicles for the advancement of factional interests within the ANC, thus making them unpredictable. The reluctance of the EFF to enter into coalitions and thus to take on the responsibilities that come with being in government, has led to the formation of minority governments that have no guarantee that any of their initiatives (including the budget) will be approved by the relevant Metro Council.
In this context, in which the survival of a minority or coalition government depends on the continued support of a number of small parties, such parties are in a strong position to “blackmail” the government by threatening to withdraw their support for that government, and supporting a vote of no confidence in the president/premier/mayor if they do not get their way on any number of issues. This secures an outsized influence for small parties over government decisions — disproportionate to the electoral support they enjoy.
But there is another side to this argument, as electoral thresholds may create other problems within the system. The most obvious problem is that imposing an electoral threshold may well be unconstitutional, as the electoral system is supposed to result, in general, in proportional representation. This means a constitutional amendment may be required before such a change to the system is made.
Imposing a threshold will make the electoral system less fair than the pure proportional system currently in place, most notably because all the votes cast for parties that do not meet the threshold will be discarded and will therefore be “wasted”.
In Germany, these votes are not reallocated to qualifying parties, but even so, the system benefits larger parties at the expense of smaller ones. In theory, it would also reduce the diversity of ideological perspectives in legislative bodies and may thus leave marginal groups without a voice in such bodies.
Thresholds also make it more difficult for new parties to get a foothold in the system, and it is sometimes used by dominant parties as a powerful weapon against their opponents, especially where the threshold is very high. For example, in Turkey, the threshold is 10%, which means that political parties who collectively obtain as much as 40% of the votes cast in an election, may not be represented in the national legislature.
But if the ANC loses its overall majority in the National Assembly, and if this results in the kind of instability we are seeing in metro councils, the imposition of a threshold of 1% or 2% may well have to be considered.
