ZACC 27
Date of Hearing: 02 May 2019
Judgement Date:03 July 2019
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Wednesday, 3 July 2019 at 10h00, the Constitutional Court handed down judgment in an urgent application for leave to appeal against a decision of the High Court of South Africa, Western Cape Division, Cape Town (High Court).The merits of the application concerned whether it is unconstitutional to prohibit independent candidates from standing for election to the National Assembly and Provincial Legislatures.
A preliminary, procedural issue was whether the matter should be heard on an urgent basis. On 17 September 2018, the applicants approached the High Court on an urgent basis. They sought an order declaring section 57A and Schedule 1A to the Electoral Act unconstitutional because they prevent independent candidates
from standing for election to the National Assembly and Provincial Legislatures.The High Court dismissed the application stating that the applicants may establish
a political party through which they can stand for election to the Provincial and National Legislatures.
Before this Court, the applicants contended that the matter was inherently urgent.They claimed that if the issue of independent candidates was not resolved, then the 2019 elections would be unlawful and subject to challenge. In their application to this Court the applicants had changed the relief they sought in the High Court to now seek a change to the electoral system “as soon as possible”. The Minister of Home Affairs and the Independent Electoral Commission argued that the matter was not urgent.
During hearing, the Constitutional Court requested the parties to limit their submissions to the question of urgency. The applicants again changed the relief they sought. They suggested that new ballot papers (which would include a set of independent candidates) may have to be printed for the 2019 national and provincial elections. The applicants argued that the 2019 elections must be postponed if it would not be possible to print the new ballot papers before the elections were due to be held. A postponement, in the applicants’ view, would afford Parliament time to enact new legislation regulating participation by independent candidates in the elections, starting from the 2019 elections.
At the end of the hearing, the Court concluded that the applicants had failed to make out a case for an urgent hearing and adjourned the matter to 15 August 2019. The Court indicated that the reasons for the order would follow.
In a unanimous judgment written by Theron J, the Court found that although the applicants had initially sought an order declaring section 57A and Schedule 1A to the Electoral Act unconstitutional and allowing independent candidates to stand for elections in the 2019 elections, they had amended their relief to seek a change
to the electoral system “as soon as possible”. This amendment implied that there was no reason why this matter should be determined before the 2019 elections
The Court held that the applicants had failed to demonstrate that Parliament could timeously effect the necessary legislative changes to accommodate the proposed
electoral regime. The Court noted that over sixty million ballot papers had already been printed, packaged and distributed across the country and voters outside the
country had already voted. Additionally, the new relief sought by the applicants was a new case which the respondents and other interested parties had not had an
adequate opportunity to answer. The Court also recognised that it is not desirable that issues of considerable importance and complexity, such as elections, be determined in haste.
The Constitutional Court accordingly postponed the hearing of the application for direct leave to appeal and determination of merits to Thursday, 15 August 2019.
The Full judgment here