The Constitutional Court will tomorrow hear arguments around the the constitutionality (or unconstitutionality) of the Electoral Act, in the case of New Nation Movement NPC and Others v President of the Republic of South Africa and Others.
The applicant, the New Nation Movement (NNM), is asking that the Electoral Act be amended to allow independent candidates to run in the nation’s elections and hold office in the national and provincial legislatures. At the moment, the contestation of elections is limited to political parties only. This is the basis of the NNM’s claim that the Electoral Act is unconstitutional, as, it points out, the Constitution gives citizens the right to stand for office in section 19(3)(b):
Every adult citizen has the right :
a. to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and
b. to stand for public office and, if elected, to hold office.
No stipulation is given that the candidates have to belong to a political party. By forcing an independent candidate to become a member of a political party before being elected into provincial and national office, argues NNM, the Electoral Act is attaching unconstitutional strings to the right in the Constitution.
In April the Western Cape High Court dismissed NNM’s original application to have the Electoral Act accordingly declared constitutionally invalid. NNM had brought the matter on an urgent basis before the court, but in his judgment, Judge Siraj Desai said that any relief granted at that time would cause distress and confusion, given that the national elections were only a few weeks away.
Tomorrow the ConCourt hears NNM’s application for leave to appeal directly to it against the Western Cape High Court’s judgment and order.
The Council for the Advancement of the South African Constitution has been admitted as amicus curiae, while the Organisation Undoing Tax Abuse (Outa) has applied to be a second amicus. A decision on Outa’s application will be made after the hearing. However, the organisation will be allowed to make a submission on the day.
