Seat Misallocation in KZN: How The IEC Got It Wrong

Written By: Thabo Ramalia (@ThaboRamaila)

Introduction

The recent allocation of seats in the KwaZulu-Natal (KZN) provincial legislature has raised serious concerns about the accuracy and legality of the process. This article reveals the factual and legal basis for these concerns, focusing on how the UMKHONTO WESIZWE (M.K.) party was unfairly deprived of its rightful representation. Our analysis will demonstrate that the allocation did not comply with the established legal framework, leading to a misrepresentation of the electorate’s will.

Legal Framework

The allocation of seats in South African provincial elections is governed by the Electoral Act 73 of 1998, specifically Schedule 1A. The Act mandates a proportional representation system to ensure that seats are distributed in accordance with the percentage of votes each party receives. The key steps in the allocation process are:

1. Determining the Quota: The quota is calculated by dividing the total number of valid votes by the number of seats plus one, and then adding one to the quotient. This formula ensures a fair distribution of seats.
2. Initial Allocation of Seats: Each party’s total number of votes is divided by the quota to determine the number of seats initially allocated. Fractions are disregarded in this step.
3. Allocation of Remaining Seats: Any remaining seats are distributed to parties based on the highest surplus votes. This step ensures that all votes contribute to the final seat distribution.

Election Results Analysis According to the certified election results:

• Total Valid Votes: 3,508,055
• Total Votes Cast: 3,547,816
• Number of Seats: 80

The vote counts and percentages for each party are as follows:

Quota Calculation and Initial Allocation

The quota is determined as follows: Quota=(13,508,055/80+1​)+1≈43,308 Using this quota, the initial seat allocation for each party is calculated:

Allocation of Remaining Seats: After the initial allocation, 76 seats are distributed, leaving 4 seats to be allocated based on the highest surplus votes. The surplus votes rank as follows:

1. EFF: 35,903
2. Others: 33,623
3. NFP: 19,548
4. ANC: 16,095
5. IFP: 16,043
6. DA: 7,435

Correct Seat Allocation Based on the surplus votes, the remaining 4 seats should be allocated as follows:

1. EFF: +1 seat (total 2 seats)
2. Others: +1 seat (total 3 seats)
3. ANC: +1 seat (total 14 seats)
4. IFP: +1 seat (total 15 seats)

The final, legally accurate allocation should be:

Identifying the Legal Flaws

1. Misallocation of Surplus Votes: The NFP was allocated a seat despite having a lower surplus than parties like EFF. According to the surplus vote ranking, NFP should not have received a seat, and its allocation represents a clear misapplication of the surplus seat allocation rules.
2. Exclusion of “Others”: The combined votes under “Others” represent a significant portion of the electorate that should have been considered in the surplus seat allocation. Ignoring this category’s surplus votes undermines the proportional representation principle.
3. Proportional Representation Principle: The allocation must reflect the electorate’s will proportionally. The current allocation deviates from this principle by unfairly allocating a seat to the NFP, which did not have a high enough surplus to warrant it.
4. Violation of Electoral Act 73 of 1998: The discrepancies in seat allocation violate the provisions of the Electoral Act, specifically Schedule 1A, which mandates a precise method for calculating and allocating seats.

Conclusion The seat allocation in KwaZulu-Natal’s provincial legislature is legally flawed and does not adhere to the proportional representation principles required by the Electoral Act. UMKHONTO WESIZWE (M.K.) has been unfairly deprived of its rightful representation due to the misallocation of surplus votes and the incorrect application of the seat allocation formula.

Given these substantial discrepancies, there are strong grounds for challenging the current allocation in court. Ensuring a fair and transparent electoral process is crucial for maintaining public trust in the democratic system. It is imperative that the correct procedures be followed to reflect accurately the will of the electorate.