The parties that oppose race nationalist socialism failed to get one third of the seats in Parliament. This matters more than is commonly known due to section 80 of the Constitution.

Before the 2024 election the Multi-Party Charter (MPC) parties had 112 seats out of 400 in the National Assembly, 28%. The MPC now has 119 seats, with the DA and IFP gaining 3 seats each, newcomer ASA getting six seats, and the FF+ loosing four seats.

The MPC’s 112 seats is just under 30%, and well short of the 134 seats needed to muster one third of Parliament.

Under Section 80 of the Constitution 134 MPs can challenge the constitutionality of a recently passed law and ask the Constitutional Court to keep that law at bay while the case is being heard. This is a unique power given to a minority of legislators to challenge the majority on constitutional grounds, a safety check against precisely the kinds of illiberal laws that the ANC urged to harm minorities.

Section 80 has not been invoked in the past, since the ANC and her allies always held an overwhelming supermajority. The ANC had an outright supermajority of more than 66% in 2004 and was on the cusp of that in 2009. In 2014 and 2019 the ANC and EFF combined had an outright 2/3rds supermajority, with exactly 274 seats in both elections, and only 126 for the rest, though some, like GOOD, were ANC proxies so the ANC-EFF supermajority was even stronger. This locked out moderate challenges to ANC laws under Section 80.

This time the MK-ANC-EFF combination is likely to have around 258 seats, or 64.4%. But if you add parties with similar policy outlooks like Rise Msanzi, the UDM, GOOD, and ATM to the ANC-EFF-MK coalition mix it edges towards two thirds.

The most obvious test case is the Expropriation Bill, sitting on the president’s desk, which allows for expropriation below market value including nil compensation. This incoming law effectively punishes innocent people who own property, either because of their appearance, or because of some other arbitrary factor.

Once this is signed a 30-day clock will start ticking for 134 MPs to get their act together to mount a court challenge to keep the law at bay under Section 180.

No one in the MK-ANC-EFF bloc is going to go for that challenge. Nor will Rise Mzansi (RM), the UDM, GOOD, or ATM.

Even if the PA joined the MPC parties that would only bring the total to 128. This is still not enough.

Another obvious case is the NHI Act, where the clock is already ticking. 134 MPs will not get together to vote for a constitutional challenge to that law.

Another obvious case is the Public Procurement Bill, which is sitting on the President’s desk, awaiting his signature just like the Expropriation Bill. That allows for racially exclusive “set-asides”, including for MK veterans, with a resultant cost in “BEE Premiums”, which the Treasury has conceded, it does not know the cost of at this stage. The MK-ANC-EFF bloc supports the policy enthusiastically, while parties like Rise Mzansi, the UDM, GOOD, ATM, and the PA support this kind of policy with enthusiasm, depending on the audience. Those who oppose it lack the necessary 134 seats.

Pending Protection

One of the special features of Section 80 is that it states (with added emphasis) that the “Constitutional Court may order that all or part of an Act that is the subject of an application in terms of subsection (1) has no force until the Court has decided the application…”

Usually, when laws are challenged on constitutional grounds, they remain in place for years while the case is considered through a series of appeals climbing to the apex court. Sometimes, this means that even if they are found to violate the constitution they are kept in place for an extra year through a “suspended” order; so the government has become used to implementing the unlawful law. That means years of unlawful state conduct, corrupting the Republic, go by.

A well-formed and well-executed section 80 challenge could stop that.  

Only, given the 2024 results, it won’t.

Blessing in disguise?

That all being said, it is worth noting the risks of a Section 80 challenge. Successful challenges by civil society and individual parties typically go through three rounds of court hearings. That process is costly and hurts as time is wasted, but on the other hand it produces a longer record that helps clarify the issues. Political parties that intervene directly at the level of the apex court would have to have all their arguments ironed out, or else they could lose due to sloppy work, embedding a bad outcome for generations.

This raises the question of how much you trust the MPC parties and their allies. Could they have gotten their act together competently, if they had had the numbers? 

No one will ever know for certain, because those parties were unable to collectively reach the 134-seat mark. That says something about the parties’ actual ability to work together.

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Gabriel Crouse is Executive Director of IRR Legal, and is a Fellow at the Institute of Race Relations (IRR). He holds a degree in Philosophy from Princeton University.