Independent candidates challenging Electoral Act must wait until August
Constitutional Court postpones urgent matter challenging the act
Individuals not affiliated to any political parties who want to contest in general elections will only possibly get a chance in 2024, if the Constitutional Court finds sections of the Electoral Act barring them from doing so is unconstitutional.
On Thursday, the court postponed the urgent challenge to the act by lobby group New Nation Movement and others. Several independent candidates who wanted to stand in next week’s general elections, had asked the court to halt the polls to allow the legislation to be challenged.
South Africans will cast their votes for any of the 76 parties contesting the general elections on Wednesday.
The minister of home affairs and the Electoral Commission of SA opposed the application. The president and the speaker of the National Assembly, who were respondents, did not oppose the case.
The merits of the case, which could have far-reaching implications for SA’s electoral system, will now be heard by the court on August 15.
Justice Edwin Cameron said reasons for the court’s decision would be given at a later stage. He said directions regarding further conduct in the case would be given by the court, but made no order as to who should carry the costs for Thursday’s court appearance.
The applicants had appealed against a judgment of the Western Cape High Court which dismissed their application to have independent candidates included in the coming elections.
The applicants argued before the high court that section 57A and schedule 1A of the Electoral Act was unconstitutional and invalid in that it did not provide for the constitutionally enshrined right of individuals to contest elections as independent candidates.
Counsel for the applicants, Alan Nelson SC, had asked the court to postpone the elections and direct parliament to facilitate a mechanism to “give people their constitutional rights in the interim”.
New Nation Movement spokesperson Tshego Motaung said they were happy that the hearing had been set down for August.
“We had hoped that even within these elections something could have been done, remembering that the conversation did not start now,” Motaung said.
The remedies that were available today would still be available in August, she said. The risk was that if the relevant sections in the act were declared unconstitutional, the elections outcome could be challenged, she said.
The issue was not to disrupt elections, but about reforming the system. “We are confident that this next parliament will have no option but to prioritise this matter,” Motaung said.