An Election Commission worker tears a ballot paper at a voting station during local municipal elections. Picture: EPA/KEVIN SUTHERLAND
An Election Commission worker tears a ballot paper at a voting station during local municipal elections. Picture: EPA/KEVIN SUTHERLAND

The legislation governing elections is unconstitutional insofar as it does not allow independent candidates to run for office in national and provincial polls, the Constitutional Court has ruled.

The highest court in the land handed down judgment on Thursday in a case brought by lobby group New Nation Movement and others about the constitutionality of the Electoral Act.

Justice Mbuyiseli Madlanga opened the door to independent candidates, who up until the judgment were not allowed to stand in national and provincial elections, and only in municipal elections.  

He said the act was unconstitutional as it says that a person can only be elected to the National Assembly and provincial legislatures as part of a political party in the proportional representation system.

The far-reaching order will, however, be suspended for 24 months, Madlanga said, to allow parliament to cure the defects in the legislation.  

It will take effect on the day the order was given, and will not affect previous elections. The next local government elections will be in 2021, and national and provincial elections in 2024.

Madlanga said given the importance of political rights in SA, section 19 in the Bill of Rights, which deals with political rights, has to be interpreted generously.

The Council for the Advancement of the SA constitution and the Organisation for the Undoing of Tax Abuse (Outa) were admitted as friends of the court in the case.

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