Judgment reserved in electoral reform case which could postpone elections

Compiled and edited from reports in News 24

Judgment was reserved until April 17 yesterday in an application dealing with the rights of independent candidates which the Western Cape High Court heard was of such urgency and importance that it could end up postponing the elections in May.

Advocate Alan Nelson, for the New Nation Movement (NNM), stressed to Judge Siraj Desai that the omission in the Electoral Act to provide for independent candidates to stand for national and provincial elections as permitted in the Constitution was a “massive constitutional crisis”.

He said the current electoral system based on political parties had been intended as a temporary measure only and was responsible for the election of unaccountable leaders.

He said the NNM application was about finding a way to ensure that ethical and accountable leaders were appointed.

The application followed a Constitutional Court judgment in June last year in which Chief Justice Mogoeng Mogoeng noted that there was no reason why any citizen could not stand as an independent candidate to be elected to municipal councils, provincial legislatures or the National Assembly.

“The enjoyment of this right has not been proscribed by the Constitution. It is just not facilitated by legislation,” Mogoeng noted at the time. 

The applicants in the matter include Khoi leader Chantal Dawn Revell (who wants to stand as an independent candidate), the Mediation Foundation for Peace and Justice and the United Public Safety Front.

The respondents are the President of the Republic of South Africa, the home affairs department, the Electoral Commission of South Africa and the Speaker of the National Assembly.

Nelson said that Desai’s order would need to be verified by the Constitutional Court.

Desai said he doubted that the highest court in the land would hear the matter by the time citizens make their mark on the ballot papers.

Nelson said: “If the matter cannot be resolved by 8th of May, then there will be an application for the postponement of the election.”

He said the NNM had already asked the court in 2017 to urgently deal with the matter.

“This is probably the most important matter to come before this court because it contends our electoral system is defective, it contends that the mechanism by which we choose our government, and by which people can express their will [is defective].”

Nelson wanted Desai to declare the omission in the electoral act unconstitutional while leaving it up to Parliament to decide how to remedy the matter.

“There is nothing that will prevent the president of our country to call a special meeting in Parliament… it can be done,” he said.

Desai noted that no democracy was perfect and that there had to be some criteria to determine who stood for election because there were so many political parties.

“This is the real world. Somehow we have to run an election. It is a practical resolution of how to run the situation,” he said.

Advocate Steven Budlender, for the Electoral Commission of SA (IEC) said the NNM application had no basis and was an “extraordinary attempt to imperil the elections” in May.

He said the “real constitutional crisis” was that the New Nation Movement (NNM), Khoi leader Chantal Dawn Revell and other applicants who wanted the court to make a declaration six weeks before elections, preventing elections from being held properly and plunging the country into “mass panic and pandemonium”.

Even if the court or president wanted to address the situation, it would not have the power to do so because there had to be a new election within 90 days of the National Assembly being dissolved, he said.

“We know we are within that period because ballot papers started being printed yesterday, 48 parties have registered,” Budlender told Judge Siraj Desai.

“It is with great respect that this application is brought without proper basis… It is irresponsible for them to ask you for an order in that regard,” he said.

In an affidavit, Revell said they believed that electing independent candidates to the National Assembly was the only way to restore righteousness to the country.

Advocate Nazeer Cassim, who represented the Department of Home Affairs, said the “abusive application” had not demonstrated that any constitutional rights had been infringed.

He said the applicants could join or start their own political party but did not want to.

Both Budlender and Cassim pointed out that Parliament was already dealing with the independent candidates’ matter as a result of the Lekota Bill and the High-Level Panel Report (to review post-apartheid legislation, including the Electoral Act).

Given a chance to reply, Nelson said the real constitutional crisis would be if the elections took place and re-election was needed because of an application to declare the results invalid.

Desai said he needed time to consider the arguments and reserved judgment until April 17.

In an interview with SABC news at the end of the day in court, Bulelani Mkholiswa, the national coordinator of the NNM, said the case was the starting point of a process aimed at remedying a flawed system that resulted in the appointment of unaccountable leaders.

He said the NNM believed that it would be better to postpone the elections for a few months and try to fix the problem than to put one’s X on a ballot paper and effectively sign a flawed contract for five years.