(Section 57A)
National Assembly
| 1. | The seats in the National Assembly are as determined in terms of section 46 of the Constitution and item 1 of Schedule 3 and are allocated as follows: |
| (a) | Half the seats are filled by independent candidates and candidates from lists of candidates of parties contesting the nine regions and these shall be referred to as regional seats; and |
| (b) | half the seats are filled by candidates from lists of candidates of parties and these shall be referred to as compensatory seats. |
| 2. | The Commission must prepare a list of independent candidates contesting an election of the National Assembly in each region in accordance with this Act. |
| (1) | Registered parties contesting an election of the National Assembly must nominate candidates on a list of candidates prepared in accordance with this Act. |
| (2) | A party’s list of candidates must consist of— |
| (a) | a regional list for each region that the party wishes to contest; and |
| (b) | a national list, with such number of names on each list as the party may determine subject to subitem (3). |
| (3) | The lists of candidates submitted by a party must together not contain more names than the number of seats in the National Assembly, and each such list must denote the fixed order of preference of the names as the party may determine. |
| (a) | may be nominated on a party’s regional list for one region and the national list of a party but the same candidate’s name may not appear on more than one regional list for that party; or |
| (b) | may be nominated as an independent candidate in more than one region. |
Regional seats
| 4. | The Commission must determine a fixed number of seats reserved for each region for every election of the National Assembly, taking into account available scientifically based data in respect of voters and representations by interested parties. |
| 5. | The seats referred to in item 1(a) must be allocated to the parties and independent candidates contesting an election, as follows: |
| (a) | Aquota of votes per seat must be determined in respect of each region by dividing the total number of valid votes cast in a region by the number of seats, plus one, reserved for such region under item 4. |
| (b) | The result plus one, disregarding fractions, is the quota of votes per seat in respect of a particular region. |
| (c) | The number of seats to be awarded for the purposes of paragraph (e) in respect of such region to a party or independent candidate must, subject to paragraph (d), be determined by dividing the total number of votes cast in favour of such party or independent candidate in a region by the quota of votes per seat indicated by paragraph (b) for that region. |
| (d) | Where the result of the calculation referred to in paragraph (c) yields seats not absorbed by the number awarded to parties or independent candidates, the surplus of votes accruing to any party, parties or independent candidates in respect of the relevant region, competes for the remaining seats in sequence of the highest surplus of votes. |
| (e) | The aggregate of a party’s or independent candidate’s awards in terms of paragraphs (c) and (d) in respect of a particular region indicates that party’s or that independent candidate’s provisional allocation of the seats reserved under item 4 for that region. |
| (f) | Where an independent candidate’s award in terms of paragraph (e) exceeds one seat, the candidate is awarded one seat as his or her provisional allocation. The excess seats must be dealt with in terms of item 7. |
| (g) | If the same independent candidate is provisionally allocated a seat in more than one region, the candidate is awarded the seat in the region where he or she received the highest proportion of votes, as his or her provisional allocation. The excess seats in other regions must be dealt with in terms of item 7. |
| (h) | The aggregate of a party’s provisional allocations for the various regions in terms of paragraph (e), indicates its provisional allocation of the seats referred to in item 4. |
| (i) | If no recalculation of provisional allocations is required in terms of item 7, the provisional allocation of such seats in terms of paragraphs (e), (f), (g) and (h) becomes the final allocation of such seats to the various parties and independent candidates, and if a recalculation is required, the provisional allocation of such seats, as adjusted in terms of item 7, becomes the final allocation of such seats to the various parties and independent candidates. |
| (j) | Parties’ seats shall be filled from its regional lists in accordance with its final allocation of seats in respect of each region. |
| (k) | Where an independent candidate is contesting in more than one region, the votes received across regions for that independent candidate may not be aggregated in order to obtain a seat in the National Assembly. |
Compensatory seats
| 6. | The seats referred to in item 1(b) must be allocated to the parties contesting an election, as follows: |
| (a) | A quota of votes per seat must be determined by dividing the total number of valid votes cast for parties on both the regional and compensatory ballots by the total number of seats in the National Assembly, plus one, minus seats won by independent candidates, and the result plus one, disregarding fractions, is the quota of votes per seat. |
| (b) | The number of seats to be awarded to a party for the purposes of paragraph (d) must, subject to paragraph (c), be determined by dividing the total number of votes cast on both the regional and compensatory ballots in favour of such party by the quota of votes per seat determined in terms of paragraph (a). |
| (c) | Where the result of the calculation referred to in paragraph (b) yields seats not absorbed by the number awarded to parties, the surplus of votes accruing to any party or parties competes for the remaining seats in sequence of the highest surplus of votes, up to a maximum of five seats so awarded: Provided that the subsequent award of seats still remaining must be made in sequence of the party or parties with the highest average number of votes per seat already awarded in terms of paragraph (b) and this paragraph. |
| (d) | The aggregate of a party’s awards in terms of paragraphs (b) and (c) must be reduced by the number of seats allocated to it in terms of item 5(i) and the result indicates that party’s provisional allocation of the seats referred to in item 1(b). |
| (e) | If no recalculation of provisional allocations is required in terms of item 7 in respect of the seats referred to in paragraph (d), the provisional allocation of such seats in terms of paragraph (d) becomes the final allocation of such seats to the various parties, and if such a recalculation is required, the provisional allocation of such seats, as adjusted in terms of item 7, becomes the final allocation of seats to the various parties. |
| (f) | In terms of paragraph (e), the seats finally allocated to a party, must be filled from its national list. |
Insufficient names on party lists and independent candidates provisionally allocated more than one seat
| (1) | If a party has submitted a national or a regional list containing fewer names than the number of its provisional allocation of seats which would have been filled from such list in terms of item 5 or item 6 had such provisional allocation been the final allocation, it forfeits a number of seats equal to the deficit. |
| (a) | If, following the provisional allocation in item 5, an independent candidate stands to be allocated more than one seat in a region, he or she is only allocated one seat and forfeits any additional seats. |
| (b) | If, following the provisional allocation in item 5, an independent candidate stands to be allocated a seat in more than one region, he or she is only allocated a seat in the region where he or she received the highest proportion of votes and shall forfeit any additional seats. |
| (3) | In the event of any forfeiture of seats in terms of subitem (1) and subitem (2) affecting the provisional allocation of seats in respect of any particular region in terms of item 5(e), such allocation must be recalculated as follows: |
| (a) | The party or independent candidate forfeiting seats must be disre-garded in such recalculation, and its provisional allocation of seats in terms of item 5(e) for the region in question, minus the number of seats forfeited by it, becomes its final allocation in respect of the seats reserved for such region in terms of item 4. |
| (b) | An amended quota of votes per seat must be determined in respect of such region by dividing the total number of votes cast in the region, minus the number of votes cast in such region in favour of the party or independent candidate referred to in paragraph (a), by the number of seats, plus one, reserved for such region under item 4, minus the number of seats finally allocated to the said party or independent candidate, in terms of paragraph (a). |
| (c) | The results plus one, disregarding fractions, is the amended quota of votes per seat in respect of such region for purposes of the said recalculation. |
| (d) | The number of seats to be awarded for the purposes of paragraph (f) in respect of such region to a party or independent candidate participat-ing in the recalculation, must, subject to paragraph (e), be determined by dividing the total number of votes cast in favour of such party or independent candidate in such region by the amended quota of votes per seat indicated by paragraph (c) for such region. |
| (e) | Where the result of the calculation referred to in paragraph (d) yields seats not absorbed by the number awarded to parties or independent candidates, the surplus of votes accruing to any party, parties or independent candidates in respect of the relevant region, competes for the remaining seats in sequence of the highest surplus of votes. |
| (f) | The aggregate of a party’s or independent candidate’s awards in terms of paragraphs (d) and (e) in respect of such region, subject to subitem (5) and subitem (6), indicates that party’s or independent candidate’s final allocation of seats reserved under item 4 for that region. |
| (4) | In the event of any forfeiture of seats in terms of subitem (1) affecting the provisional allocation of seats in terms of item 6(d), such allocation must be recalculated as follows: |
| (a) | The party forfeiting seats must be disregarded in such recalculation, and its provisional allocation of seats in terms ofitem 6(d), minus the number of such seats forfeited by it, becomes its final allocation of the seats referred to in item 1(b). |
| (b) | An amended quota of votes per seat must be determined by dividing the total number of votes cast nationally on both the regional and compensatory ballots, minus the number of votes cast nationally on both the regional and compensatory ballots in favour of the party referred to in paragraph (a), by the number of seats in the National Assembly, plus one, minus the number of seats finally allocated to the said party in terms of paragraph (a), minus the aggregate of seats won by independent candidates. |
| (c) | The result plus one, disregarding fractions, is the amended quota of votes per seat for the purposes of the said recalculation. |
| (d) | The number of seats to be awarded for the purpose of paragraph (f) to a party participating in the recalculation must, subject to paragraph (e), be determined by dividing the total number of votes cast nationally in favour of such party by the amended quota of votes per seat indicated by paragraph (c). |
| (e) | Where the result of the calculation referred to in paragraph (d) yields seats not absorbed by the number awarded to parties, the surplus of votes accruing to any party or parties competes for the remaining seats in sequence of the highest surplus of votes, up to a maximum of five seats so awarded: Provided that the subsequent award of seats still remaining must be made in sequence of the party or parties with the highest average number of votes per seat already awarded in terms of paragraph (d) and this paragraph. |
| (f) | The aggregate of such a party’s awards in terms of paragraphs (d) and (e) must be reduced by the number of seats finally allocated to it in terms of item 5(i), and the results, subject to subitem (5) indicates that party’s final allocation of the seats referred to in item 1(b). |
| (5) | In the event of a party being allocated an additional number of seats in terms of this item, and if its list in question then does not contain the names of a sufficient number of candidates as set out in subitem (1), the procedure provided for in this item must be repeated with the changes required by the context until all seats have been allocated. |
| (6) | In the event that an independent candidate stands to be allocated more than one seat in terms of subitem (3)(f), the procedure provided for in subitem (3), must be repeated with the changes required by the context until all seats have been allocated. |
Provincial legislatures
| 8. | The number of seats in each provincial legislature are as determined in terms of section 105 of the Constitution and item 3(1) of Schedule 3. |
| (1) | Registered parties contesting an election of a provincial legislature must nominate candidates for election to such provincial legislature on a provincial list of candidates prepared in accordance with this Act, with such number of candidates on each list as the party may determine subject to subitem (2). |
| (2) | The list of candidates submitted by a party must not contain more names than the number of seats in the provincial legislature concerned, and must denote the fixed order of preference of the names as the party may determine. |
| 10. | The Commission must prepare a list of independent candidates contesting an election of a provincial legislature in accordance with this Act. |
| 11. | The seats determined for a provincial legislature must be allocated to parties and independent candidates contesting an election, as follows: |
| (a) | A quota of votes per seat must be determined by dividing the total number of valid votes cast in the province concerned by the number of seats, plus one, determined for such province and the result plus one, disregarding fractions, is the quota of votes per seat for such province. |
| (b) | The number of seats to be awarded to a party or independent candidate for the purposes of paragraph (d) must, subject to paragraph (c), be determined by dividing the total number of votes cast in the province in favour of such party or independent candidate by the quota of votes per seat determined in terms of paragraph (a). |
| (c) | Where the result of the calculation referred to in paragraph (b) yields seats not absorbed by the number awarded to parties or independent candidates, the surplus of votes accruing to any party, parties or independent candidates in respect of the relevant province, competes for the remaining seats in sequence of the highest surplus of votes. |
| (d) | The aggregate of a party’s or independent candidate’s awards in terms of paragraphs (b) and (c), indicates that party’s or independent candidate’s provisional allocation of seats in the provincial legislature in question. |
| (e) | Where an independent candidate’s award in terms of paragraph (d) exceeds one seat, the candidate is awarded one seat as his or her provisional allocation. The surplus of seats yielded must be dealt with in terms of item 12. |
| (f) | If no recalculation of provisional allocations for a province concerned is required in terms of item 12, the provisional allocation of seats in respect of that province in terms of paragraph (d), becomes the final allocation of such seats to the various parties and independent candidates, and if such a recalculation is required the provisional allocation of such seats as adjusted in terms of item 12 becomes the final allocation of such seats to the various parties and independent candidates. |
| (g) | In terms of paragraph (f) the seats finally allocated to a party, must be filled from its respective provincial lists. |
| (1) | If a party has submitted a provincial list containing fewer names than the number of seats provisionally allocated to it in terms of item 11(d), it must forfeit a number of seats equal to the deficit. |
| (2) | If, following the provisional allocation in item 11(d), an independent candidate stands to be allocated more than one seat in a region, he or she is only allocated one seat and forfeits any additional seats. |
| (3) | In the event of any forfeiture of seats in terms of subitems (1) or (2), the allocation of seats in respect of the province concerned must be recalculated as follows: |
| (a) | The party or independent candidate forfeiting seats must be disre-garded in such recalculation, and its provisional allocation of seats in terms of item 11(d), minus the number of seats forfeited by it, becomes its final allocation of seats in the provincial legislature concerned. |
| (b) | An amended quota of votes per seat must be determined in respect of such province by dividing the total number of votes cast in the province, minus the number of votes cast in the province in favour of the party or independent candidate referred to in paragraph (a) by the number of seats, plus one, determined in terms of item 8 in respect of the province concerned, minus the number of seats finally allocated to the said party in terms of paragraph (a). |
| (c) | The result plus one, disregarding fractions, is the amended quota of votes per seat in respect of such province for purposes of the said recalculation. |
| (d) | The number of seats to be awarded for the purposes of paragraph (f) in respect of such province to a party or independent candidate participating in the recalculation must, subject to paragraph (e), be determined by dividing the total number of votes cast in favour of such party or independent candidate in such province by the amended quota of votes per seat indicated by paragraph (c) for such province. |
| (e) | Where the result of the calculation referred to in paragraph (d) yields seats not absorbed by the number awarded to parties or independent candidates, the surplus of votes accruing to any party, parties or independent candidates in respect of the relevant province, competes for the remaining seats in sequence of the highest surplus of votes. |
| (f) | The aggregate of such a party’s or independent candidate’s awards in terms of paragraphs (d) and (e) in respect of such province, subject to subitems (4) and (5), indicates that party’s or independent candidate’s final allocation of the seats determined under item 8 in respect of that province. |
| (4) | In the event of a party being allocated an additional number of seats in terms of subitem (3)(f) and if its list in question then does not contain the names of a sufficient number of candidates as set out in subitem (1), the process provided for in this item must be repeated with the changes required by the context until all seats have been allocated. |
| (5) | In the event that an independent candidate stands to be allocated more than one seat in terms of subitem (3)(f), the procedure provided for in subitem (3), must be repeated with the changes required by the context until all seats have been allocated. |
Ballot papers
| (1) | The Commission must produce separate ballot papers for each regional election of members to the National Assembly, the compensatory seats of members to the National Assembly and of members to each provincial legislature. |
| (2) | The ballot paper to be used in each region for the election of members of the National Assembly shall include only parties and independent candidates standing in that region for election to the National Assembly. |
| (3) | The ballot for a provincial legislature shall include the names of parties and independent candidates standing for elections in that province. |
Designation of representatives of parties
| (1) | After the counting of votes has been concluded, the number of representatives of each party has been determined and the election result has been declared in terms of section 190(1)(c) of the Constitution, the Commission must, within two days after such declaration, designate from each list of candidates, the representatives of each party in the National Assembly and provincial legislature. |
| (2) | Following the designation in terms of subitem (1), if a candidate’s name appears on more than one list for the National Assembly or on lists for both the National Assembly and a provincial legislature (if an election of the National Assembly and a provincial legislature is held at the same time), and such candidate is due for designation as a representative in more than one case, the party which submitted such lists must, within two days after the said declaration, indicate to the Commission from which list such candidate will be designated or in which legislature the candidate will serve, as the case may be, in which event the candidate’s name must be deleted from the other lists. |
| (3) | If a party fails to indicate to the Commission from which list a candidate will be designated or in which legislature a candidate will serve, such candidate’s name must be deleted from all the lists. |
| (4) | The Commission must forthwith publish the list of names of representatives in the National Assembly or provincial legislatures. |
Supplementation of lists of candidates of parties
| 15. | A party may not supplement a list of candidates for any legislature prior to the designation of representatives in terms of item 14. |
| 16. | After the designation of representatives in terms of item 14 has been concluded, parties may supplement their lists of candidates by the addition of an equal number of names at the end of the applicable list, if— |
| (a) | a representative is elected as the President or to any other executive office as a result of which he or she resigns as a representative of a legislature; |
| (b) | a representative is appointed as a permanent delegate to the National Council of Provinces; |
| (c) | a name is deleted from a list in terms of item 14(2) or (3); or |
| (d) | a vacancy has occurred and the appropriate list of candidates of the party concerned is depleted. |
| 17. | A party may supplement a list of candidates referred to in item 14(1) on one occasion only at any time during the first 12 months following the date on which the designation of representatives in terms of item 14 has been concluded, in order to fill casual vacancies: Provided that any such supplementation must be made at the end of the list. |
| 18. | The number of names on lists of candidates as supplemented in terms of item 16 may not exceed the difference between the number of seats in the National Assembly or a provincial legislature, as the case may be, and the number of representatives of a party in any such legislature. |
Review of lists of candidates by party
| 19. | A party may review its undepleted lists as supplemented in terms of items 16, 17 and 18, within seven days after the expiry of the period referred to in item 17, and annually thereafter, until the date on which a party has to submit lists of candidates for an ensuing election, in the following manner: |
| (a) | All vacancies may be supplemented; |
| (b) | no more than 25 per cent of candidates may be replaced; and |
| (c) | the fixed order of lists may be changed. |
Publication of supplemented and reviewed lists of candidates
| 20. | The Secretary to Parliament and the Secretaries of the provincial legislatures must publish lists of candidates supplemented in terms of items 16 and 17 or reviewed in terms of item 19 within 10 days after the receipt of such lists from the parties concerned. |
Designation of seats of independent candidates
| (1) | If an independent candidate is finally allocated a seat in accordance with item 11(f) as well as in accordance with item 5(i), such independent candidate must within two days after the said final allocation, indicate to the Commission the seat he or she elects to retain or in which legislature the independent candidate will serve, as the case may be, in which event the independent candidate’s name must be deleted from the relevant other list and the recalculation performed in terms of item 23. |
| (2) | If an independent candidate fails to indicate to the Commission from which list such independent candidate will be designated or in which legislature an independent candidate will serve, such independent candi-date’s name must be deleted from all the lists and both the regional and provincial recalculations performed in terms of item 23. |
Vacancies
| (1) | In the event of a vacancy in a legislature of a seat allocated to a party, the party which the vacating member represented must fill the vacancy by nominating a person— |
| (a) | whose name appears on the list of candidates from which that party’s members were originally nominated; and |
| (b) | who is the next qualified and available person on the list. |
| (2) | A nomination to fill a vacancy must be submitted to the Speaker of the legislature in writing. |
| (3) | If a party represented in a legislature dissolves or ceases to exist and the members in question vacate their seats in consequence of section 47(3)(c) or section 106(3)(c) of the Constitution, the seats in question must be allocated to the remaining parties with the changes required by the context as if such seats were vacated seats in terms of item 23 and item 24, as the case may be. |
| (1) | In the event of a vacancy in a region or provincial legislature with respect to a seat allocated to an independent candidate, the chief electoral officer must in writing allocate the seat by recalculating the result as follows: (a) disregarding the votes allocated to the independent candidate causing the vacancy; (b) disregarding the votes and seats allocated to the independent candidates already in office; and (c) recalculating the result for the region or provincial legislature in terms of the provisions in subitem (3). |
| (2) | The vacant seat is awarded to an eligible independent candidate or party that contested the preceding election in terms of subitem (1)(c). |
| (a) | An amended quota of votes per seat must be determined in respect of such region or province by dividing the total number of votes cast in the region or province, minus the number of votes cast in the region or province in favour of the independent candidate causing the vacancy, minus the votes cast in such region or province in favour of independent candidates already allocated one seat, by the number of seats, plus one, determined in terms of item 4 or item 8 in respect of the region or province concerned, minus the seats held by independent candidates. |
| (b) | The result plus one, disregarding fractions, is the amended quota of votes per seat in respect of such region or province for purposes of the said recalculation. |
| (c) | The number of seats to be awarded for the purposes of paragraph (e) in respect of such region or province to a party or independent candidate participating in the recalculation must, subject to paragraph (d), be determined by dividing the total number of votes cast in favour of such party or independent candidate in such region or province by the amended quota of votes per seat indicated by paragraph (b) for such region or province. |
| (d) | Where the result of the calculation referred to in paragraph (c) yields seats not absorbed by the number awarded to parties or independent candidates, the surplus of votes accruing to any party, parties or independent candidates participating in the recalculation, competes for the remaining seats in sequence of the highest surplus of votes. |
| (e) | The aggregate of such a party’s awards in terms of paragraphs (c) and (d) in respect of such region or province, subject to paragraph (f), indicates that party’s or independent candidate’s final allocation of the seats determined under item 4 or item 8 in respect of that region or province. |
| (f) | In the event of a party being allocated an additional number of seats in terms of this item and if its list in question then does not contain the names of a sufficient number of candidates as set out in item 7(1) or item 12(1), the process provided for in item 24 must be repeated with the changes required by the context until all seats have been allocated. |
| (1) | Should any party or independent candidate stand to lose a seat during the recalculation contemplated in item 23, the party or independent candidate will retain the seat. |
| (2) | A recalculation must be done as follows: (a) disregarding the votes and seat allocated to the party or independent candidate contemplated in subitem (1); (b) disregarding the votes and seats allocated to independent candidates already in office; and (c) recalculating the result for the region or provincial legislature in terms of the provisions in subitem (3). |
| (a) | An amended quota of votes per seat must be determined in respect of such region or province by dividing the total number of votes cast in the region or province, minus the number of votes cast in the region or province in favour of the party or independent candidate standing to lose a seat, minus the votes cast in such region or province in favour of independent candidates already allocated one seat, by the number of seats, plus one, determined in terms of item 4 or item 8 in respect of the region or province concerned, minus the seat or seats retained by the party or independent candidate, minus the seats held by the independent candidate. |
| (b) | The result plus one, disregarding fractions, is the amended quota of votes per seat in respect of such region or province for purposes of the said recalculation. |
| (c) | The number of seats to be awarded for the purposes of paragraph (f) in respect of such region or province to a party or independent candidate participating in the recalculation must, subject to paragraph (d), be determined by dividing the total number of votes cast in favour of such party or independent candidate in such region or province by the amended quota of votes per seat indicated by paragraph (b) for such region or province. |
| (d) | Where the result of the calculation referred to in paragraph (c) yields seats not absorbed by the number awarded to parties or independent candidates, the surplus of votes accruing to any party, parties or independent candidates participating in the recalculation, competes for the remaining seats in sequence of the highest surplus of votes. |
| (e) | The aggregate of such a party’s awards in terms of paragraphs (c) and (d) in respect of such region or province, subject to paragraph (f), indicates that party’s or independent candidate’s final allocation of the seats determined under item 4 or item 8 in respect of that region or province. |
| (f) | In the event of a party being allocated an additional number of seats in terms of this item and if its list in question then does not contain the names of a sufficient number of candidates as set out in item 7(1) or item 12(1), the process provided for in this subitem must be repeated with the changes required by the context until all seats have been allocated. |
Definitions
‘national list’
means a list of candidates prepared by a party for an election of the National Assembly to reflect that party’s order of preference of candidates in respect of the allocation of compensatory seats;
‘provincial list’
means a list of candidates prepared by a party for an election of a provincial legislature;
‘regional list’
means a list of candidates in respect of a region prepared by a party for an election of the National Assembly to reflect that party’s order of preference of candidates in respect of the allocation of regional seats in respect of each region; and
‘votes’
means—
| (a) | where it occurs in items 5, 6 and 7, votes cast in the election for the National Assembly; |
| (b) | where it occurs in items 11 and 12, votes cast in the election for the provincial legislature of a province concerned; and |
| (c) | where it occurs in item 14, votes cast in the election for the National Assembly and the provincial legislatures. |
[Schedule 1A substituted by section 21 of Electoral Amendment Act, 2023, Notice No. 3295, GG48432, dated 17 April 2023 - effective 19 June 2023 (Proclamation No. 124 of 2023)]
