Picture: REUTERS
Picture: REUTERS

Lobby groups could derail the upcoming elections with a Constitutional Court bid to have SA’s electoral laws revised before the May 8 polls. 

The groups are arguing for the inclusion of independent candidates in the elections, and the case is expected to be argued in the apex court on May 2.

Last week, the High Court in Cape Town dismissed an application by lobby group New Nation Movement and others, in which they sought to compel parliament to fix the “unconstitutionality” of the Electoral Act.

The applicants argued that section 57A and schedule 1A of the Act is unconstitutional and invalid in that it does not provide for the “constitutionally enshrined right of individuals to contest elections as independent candidates”.

Furthermore, they argued that failure of the Act to regulate the position of individuals, who stand for election to the National Assembly or the provincial legislatures other than through political party lists, is unconstitutional and invalid.

Judge Siraj Desai dismissed the application saying in his written judgment: “The constitution itself obliges every citizen to exercise the franchise through a political party. Nowhere in the wording of the [constitution] does it expressly state that standing for office must include standing for such office as an independent candidate.”

Desai added that any relief granted would likely cause substantial distress and uncertainty in relation to the upcoming elections.

The applicants subsequently approached the Constitutional Court for leave to appeal, which was granted.

“The fact that the Constitutional Court has deemed it necessary to consider the application for leave to appeal the ruling of the high Court on an urgent basis is indicative of the court’s view of how gravely important is the right of citizens to fully exercise their political rights,” said New Nation Movement spokesperson Tshego Motaung.

She said independent candidates are allowed to stand for elections at local government level, so “why can’t they stand in national elections?”

Motaung said the organisation is aware of many “people of substance” who are tired of the party political system, willing to stand as independents.

She said that in support of its application for leave to appeal, the movement made it clear that while it is mindful of the importance of the coming elections, and that it has no desire to disrupt them, the “contrary issue of equal if not greater importance, is that the elections take place in manner that is both free and fair and which complies with the constitution”.  

“To this end the New Nation Movement commenced a long time ago with a number of interventions to ensure that due attention be given to the need for the Electoral Act to be amended and provision made for independents candidates to contest elections.

“The intention from the outset was that these amendments would be implemented timeously and that the 2019 elections would allow for the participation of independent candidates,” Motaung said. 

“Due to no fault of the applicants this matter has been delayed and postponed over the course of the past two years and more, leaving no alternative at this late stage other than to seek urgent relief from the Constitutional Court,” she said.

phakathib@businesslive.co.za