Constitutional Court reserves judgment in application for right of independents to contest elections

By Teresa Conradie

Yesterday the Constitutional Court heard application by the New Nation Movement (NNM), Princess Chantal Revell of the First Nation people and two other applicants requesting the court to declare the Electoral Act unconstitutional for as far as it does not allow eligible South African citizens to stand as independent candidates for election to the National Assembly and Provincial Legislatures.

The NNM’s application to the Constitutional Court followed the dismissal of its application by the Cape High Court (per Judge Desai) on April 2019. NNM and the other three applicants now seek to appeal that judgment, and have it overturned by the Constitutional Court.

The President of South Africa and the Speaker of Parliament gave notice that they would abide by the decision of the Court. The Speaker, though, requested that, should the applicants succeed in their application and the Electoral Act be referred to Parliament to remedy it, Parliament be given a period of 36 months to do so.

Adv Tembeka Ngcukaitobi represented the New Nation Movement and argued that Section 19(3)(b) of our Constitution clearly gives the right to every adult citizen in South Africa to stand for office and if elected, hold such office. He showed that the other sections of the Constitution, as well as international law, support the views of the applicants.

Princess Chantal Revell and the people of the First Nation were represented by Adv Alan Nelson SC. He highlighted human dignity as a foundational value of the Constitution and movingly argued that the Electoral Act does not currently defend or promote the dignity of the First Nation people. The only mechanism available to Princess Chantal, if she wanted to stand for Parliament, was to form a political party. She and the other First Nation leaders want to remain non-partisan, though.

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Prior to the hearing of the application, the Council for the Advancement of the Constitution of South Africa (CASAC) was admitted as amicus curiae (a friend of the court) and the Organisation Undoing Tax Abuse (Outa) made application on the day of the hearing to be admitted as such. Outa’s counsel, Adv Isabel Goodman, supported New Nation’s application but based their argument on the constitutional right to association. She argued that the right of association also includes the right of a candidate not to associate with a political party.

The Minister of Home Affairs opposed the application based on the interpretation of Section 19(3)(b). Adv Nazeer Cassim SC argued on behalf of the Minister that, while this section gives every adult citizen the right to stand for office, it does not expressly explain how that right is to be exercised and therefore the Court should leave the choice up to Parliament and not order Parliament to design legislation which enables independent candidates to run for elections in parliament and in the provincial legislature.

The Independent Electoral Commission (IEC) was represented by Adv Stephen Budlender SC who put forward a similar argument. He argued that the Constitution does not compel Parliament to accommodate independent candidates in legislation but gives Parliament a choice of whether it wants to allow independent candidates can stand for office of not.

Should NNM and the other three applicants succeed in their application, the Court will refer the Electoral Act back to Parliament to remedy it. It speaks for itself that Parliament will have a huge task in doing it. There would have to be thorough public participation to first determine how independent candidates will be accommodated. Amongst others it could mean a separate ballot paper with the names of independent candidates or a ward system as is the case in our local government elections. Once the Act is amended, the logistical arrangements such as demarcation would have to take place.

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The Court reserved judgment.