Case on independents’ right to stand in elections, postponed to August

By Adv Nadene Badenhorst

Nine judges of the Constitutional Court today heard an urgent application by the New Nation Movement (NNM) to allow eligible South Africans to stand for election to the National Assembly and Provincial Legislatures independently of political parties.

The Court ruled that the matter was not urgent enough to justify an immediate hearing on the merits, but postponed the matter for hearing to 15 August.

Although independent candidates will, therefore, not be able to stand in this election, the good news is that the Constitutional Court has opened the door for (argument on) a possible change of the electoral system before the next national and provincial elections in 2024.

Arguments in court today
The NNM’s application to the Constitutional Court follows the recent dismissal by the Cape High Court (per Judge Desai) of NNM’s application to declare the Electoral Act unconstitutional because it prevents independent candidates from standing. It is this judgment that the NNM now seeks to appeal to, and have overturned by, the Constitutional Court.

At the outset of the hearing, the Constitutional Court (with Justice Cameron presiding) requested the parties to address them, first and foremost, on the question of urgency i.e. why the court should hear the matter now and not in the ordinary course in three months’ time.

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The hearing got off to a robust start with Adv Alan Nelson SC, appearing for NNM, arguing that if the court does not hear the matter now, the upcoming elections will not be free and fair and may be challenged as unlawful. In this regard, the Constitutional Court (per Chief Justice Mogoeng Mogoeng) has already in a previous matter held that: “Every adult citizen may in terms of the Constitution stand as an independent candidate to be elected to municipalities, Provincial Legislatures or the National Assembly.

“The enjoyment of this right is not and has not been proscribed by the Constitution. It is just not facilitated by legislation. But that does not mean that the right is not available to be enjoyed by whosoever might have lost confidence in political parties. It does, in my view, remain open to be exercised whenever so desired, regardless of whatever logistical constraints might exist.” (My Vote Counts, 2018).

Adv Nelson argued that, by law, the elections can be postponed for a maximum of three months and that this should be sufficient time for parliament to put the necessary interim measures in place to allow independent candidates to stand in this election. In this regard, he pointed out that a private member’s bill making it possible for independent candidates to stand (known as the “Lekota Bill”) is already in process, and could be promulgated in three months’ time.

Counsel for the Minister of Home Affairs, and Independent Electoral Commission (IEC), both of whom are opposing the application, argued that the matter is not urgent and there is no reason why the appeal should not be heard in due course. In their opinion, the consequences of postponing the election would be dire and it is not in the interest of the court to hear this matter which seeks to fundamentally change the electoral system, in a hurry.

Adv Reg Willis, appearing for the NNM in reply, argued that citizens have a constitutional right “now” to stand for elections, and if they do not have the right to stand in these elections because the Electoral Act does not provide for it, they will be prejudiced, as the elections would have come and gone. For this reason, it is important for this court to hear the matter now rather than in August.

Following a brief adjournment, the judges returned to court to deliver their ruling on the question of urgency. The Court found that NNM did not succeed in making out a case for an urgent hearing today, but postponed the matter for hearing on the merits to Thursday, August 15.

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The postponement effectively means that the court has granted NNM direct access to the Constitutional Court, without the need to first appeal the High Court’s decision to the Supreme Court of Appeal (SCA) in Bloemfontein.