The Constitutional Court declares Electoral Act unconstitutional

October 1st, 2020
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New Nation Movement NPC and Others v President of the Republic of South Africa and Others (Council for the Advancement of the South African Constitution and Another as Amici Curiae) 2020 (8) BCLR 950 (CC)

In 2018, the New Nation Movement NPC and four others, applied to the Western Cape Division of the High Court to have s 57 read with sch 1A of the Electoral Act 73 of 1998 declared unconstitutional. The provisions compel individuals running in provincial or national (general) elections to do so through a political party. The applicants argued that compelling the use of a political party limits the rights to stand for public office, and freedom of association, guaranteed in ss 18 and 19(3)(b) of the Constitution, respectively.

The case in the High Court

The High Court dismissed the applicants’ arguments, stating that s 19(3) does not expressly create the right to stand for office as an independent candidate. Further, the court reasoned that other provisions of the Constitution support the argument that the right to stand for public office must be exercised through political parties. The court pointed to s 1(d) of the Constitution, which requires the establishment of a ‘multi-party system of democratic government’, without mentioning independent candidates.

The court also took note of ss 46(1)(a) and 105(1)(a) of the Constitution, which empower Parliament to determine the type of electoral system to be applied. The court held that Parliament duly exercised this authority by enacting the Electoral Act and the choice not to accommodate independent candidates, is not unconstitutional.

The court concluded that the applicants’ grievance with the party-centred election process may be remedied by asking voters to decide on it.

Dissatisfied with this outcome, the applicants appealed to the Constitutional Court (CC).

The case in the CC

The CC began by interpreting the rights in question. The court noted that the right to stand for public office is closely related to the right to freely make political choices as indicated in s 19(1) of the Constitution. The court determined that the right to make political choices and the right to freedom of association must be interpreted broadly. Broadly interpreted, the rights to make political choices and to associate, also encompass the rights to refrain from making political choices and to disassociate. Put differently, the rights permit the choice to exercise them or not, to compel a choice in either direction is a violation of the right.

The court took cognisance of the right to freedom of conscience, under s 15(1) of the Constitution. It held that compulsion to join a political party, may leave one susceptible to the dictates of a party, limiting the exercise of individual conviction. The court recognised this limited the freedom of conscience of persons, such as one of the applicants, Chantal Dawn Revell. As a representative of the indigenous Korana nation, she argued that she holds herself answerable to her nation and cannot be beholden to a political party. The court added that the contestation between individual conviction and political party dictates is salient in contemporary South Africa (SA), as illustrated by the case of United Democratic Movement v Speaker of the National Assembly and Others (Council for the Advancement of the South African Constitution and Others as Amici Curiae) 2017 (8) BCLR 1061 (CC).

The weight of the rights outlined above, led the CC to rejecting the High Court’s conclusions. The CC concluded that none of the sections the High Court relied on prescribed the exclusive implementation of a party-based system.

Proportional representation

The court then moved onto an analysis of sch 6 of the Constitution. Provisions of this schedule specify that general elections must be based on a proportional representation system, where parties nominate candidates for office. The provisions make no accommodation for independent candidates. However, further analysis of the provisions, revealed that they were intended to be temporary; only applicable to the first elections under the Constitution. The court took note of its previous finding in the United Democratic Movement case confirming the temporary nature of the provisions. Accordingly, the court held that the continued application of a strict proportional representation system based on these provisions is improper.

Advancing further argument for a strict proportional representation system, the respondents referred the court to s 157(2)(a) of the Constitution. This section empowers Parliament to choose an electoral system for Municipal Councils based strictly on proportional representation. The respondent’s argued that interpreting s 19(3)(b) of the Constitution in a manner that allowed independent candidates in general elections, would contradict the position in Municipal Councils. Such a contradiction, they argued, could not be permitted.

The court rejected this argument, reasoning that the history of racially based spatial planning in municipalities necessitated the implementation of a proportional representation system at that level to achieve fairness. The court held that this historical context was unique to municipalities and not present at provincial or national level. Therefore, the respondents’ argument failed.

Exclusive political party system

The respondents directed the court to several other sections of the Constitution that mention political parties. The court was unconvinced that any of them justified the implementation of an exclusively party-based system.

Constitutionality of previous elections

The respondents argued should the applicants’ case succeed, it would jeopardise the validity of previous elections. A result, the respondents continued, that would be absurd. The court disagreed, noting its authority to craft a remedy that has limited retrospective effect, thereby preserving the sanctity of previous elections.

Conclusion

The CC declared the Electoral Act unconstitutional, insofar as it limits the rights of independent candidates to stand for public office in general elections. The court suspended the order for 24 months, to allow Parliament to remedy the defect. This landmark judgment marks the evolution of the South African democracy. It opens the possibility of an independent candidate being elected to the presidency.

Muchengeti Hudson Hwacha LLB (UKZN) Cert Intellectual Property and Banking law (Wits) is a candidate legal practitioner at Lebea Inc Attorneys in Johannesburg.

This article was first published in De Rebus in 2020 (Oct) DR 33.