Case CCT 110/19
 ZACC 24
Judgement Date: 29 June 2022
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, 29 June 2022 at 10h00, the Constitutional Court handed down judgment in an application for an extension of a suspension period in respect of a declaration of invalidity issued by the Constitutional Court in New Nation Movement NPC v President of the Republic of South Africa (New Nation Movement II).
On 11 June 2020, the Court in New Nation Movement II, declared the Electoral Act unconstitutional to the extent that it requires that adult citizens may be elected to the National Assembly and Provincial Legislatures only through their membership of political parties. It ordered that the declaration of constitutional invalidity be suspended for 24 months until 10 June 2022 to afford Parliament an opportunity to remedy the defect giving rise to the unconstitutionality.
On 26 April 2022, approximately seven weeks before the expiry of the suspension period, the Speaker of the National Assembly and the Chairperson of the National Council of Provinces (Parliament), approached the Court and asked for an extension of the suspension period for six months until 10 December 2022. In the alternative, Parliament sought an interim extension while the Court considered the application. The application was opposed by New Nation Movement NPC (New Nation) and Ms Chantal Dawn Revell, the first and second respondents in the extension application (principal application). New Nation and Ms Revell also filed counter-applications on 3 June 2022, less than five court days before expiry of the suspension period.
In support of the principal application, Parliament submitted that it had not been lethargic in giving effect to the order of 11 June 2020 (the order). It submitted that it had taken numerous measures to give effect to the order. These measures include meetings held by the Portfolio Committee of Home Affairs (Portfolio Committee) between 2020 and 2021, a comparative study that was conducted in respect of different electoral systems, and a determination of additional legislation that would also require amendment as a result of an amendment to the Electoral Act. According to Parliament, when the Minister of Home Affairs (Minister) failed to introduce the Electoral Amendment Bill (Bill) before the National Assembly by the agreed upon deadline, Parliament followed up with the Minister continuously. When the Bill had still not been introduced by 21 November 2021, Parliament decided it had no option but to await the Minister’s introduction of the Bill. Parliament submitted that after introduction of the Bill in January 2022, when the Minister did not file an application to extend the suspension period, on 23 February 2022, Parliament instructed the state attorney to file an extension application. Due to internal processes, the application could only be filed on 26 April 2022.
In response to the directives issued by the Court on 11 May 2022, Parliament submitted, amongst others, that although it brought the application in the ordinary course, the application was indeed urgent.
The Minister did not oppose the extension sought on the condition that the extension did not exceed six months. Regarding the steps taken by the Minister to give effect to the order, the Minister averred that on 11 February 2021, a Ministerial Advisory Committee was established to identify the extent of the legislative and policy reform required to give effect to the order. The Minister did not indicate what actions were being taken prior to 11 February 2021. A draft bill was introduced to the National Assembly on 29 December 2021. According to the Minister, after introduction of the Bill, it was up to Parliament to deal with the matter.
The Electoral Commission (Commission) made submissions regarding the urgency of the application and any prejudice that may be suffered in granting the extension sought. The Commission submitted that considering the then looming deadline on 10 June 2022, the application ought to be considered on an expedited basis. Regarding any prejudice that may be suffered, the Commission submitted that should the Bill be enacted in its current form, a six-month extension to 10 December 2022 would not cause prejudice to it and the public. However, if the Bill is amended to include new sub-provincial constituencies, it would be impossible for the Commission to implement the newly enacted Electoral Act in time for the 2024 elections. The Commission communicated this to the Portfolio Committee in 2020.
New Nation and Ms Revell opposed the application. They filed their answering affidavits in the principal application out of time. Additionally, they also filed their counter-applications a mere five court days before expiry of the suspension period. They sought condonation from the Court for the late filing of the affidavits and counter-applications. New Nation contended that its directors are based in different provinces; hence the late filing. Ms Revell submitted that she required additional time to file the counter-application and answering affidavit.
According to New Nation and Ms Revell, Parliament and the Minister were engaged in a “blame game”, trying to escape accountability. They made the submission that if the extension is granted, the Electoral Act may possibly not be amended in time for the 2024 elections. Thus, there is a possibility that the elections might be held without accommodating independent candidates. This would prejudice independent candidates.
In the alternative, if the Court granted the extension, New Nation and Ms Revell asked the Court to issue directions, directing the parties and amici to to file further affidavits and written submissions on an appropriate reading-in order to be made in respect of the Electoral Act, to cure the constitutional invalidity. Additionally, Ms Revell also contended that the public participation process of the Bill followed to date is fundamentally flawed. She argued that the public had not been given an opportunity to comment on the work done by the Ministerial Advisory Committee.
The matter was decided without a hearing. In a unanimous judgment penned by Unterhalter AJ, the Constitutional Court reiterated its’ finding in Electoral Commission of South Africa v Speaker of the National Assembly that extensions should be granted with great caution and not be granted simply as a matter of course or at the last minute.
The Court granted condonation for the late filing of New Nation and Ms Revell’s answering affidavits in the principal application after finding that the late filing did not prejudice Parliament, the Minister and the Commission. However, it refused condonation for the late filing of the counter-applications. In this respect, it held that New Nation and Ms Revell failed to provide a reasonable explanation for the late filing of the counter-applications. Furthermore, the delayed launch of the counter-applications would not have allowed Parliament, the Minister and the Commission a fair opportunity to respond, given the deadline of 10 June 2022.
The Court found that the principal application was urgent in large measure as a result of the dilatory conduct of the Minister and Parliament in bringing the application. However, this did not detract from the accomplished fact that the matter was urgent and had to be dealt with as such.
The Court outlined the factors to be considered when determining whether to grant an extension. The overarching consideration in exercising this power is the interests of justice. It held that Parliament will not be excused from its duty to meet the deadlines imposed by the Court, on the basis that the Minister delayed the legislative process. Furthermore, having considered the Commission’s submission that it will not be prejudiced by the six-month extension, the Court found that the extension sought would not cause any prejudice. Finally, the Court considered the steps taken by Parliament thus far to give effect to the order, as well as a detailed timeline provided by Parliament and found that, based on the evidence before it, Parliament had met its burden to show that it will be able to finalise the Bill’s legislative process by 10 December 2022.
In the circumstances, the Court found that it is in the interests of justice to extend the suspension period from 10 June 2022 to 10 December 2022.
On 10 June 2022, the Court issued an order granting the extension sought and on 29 June 2022, the reasons for the order were issued.
The Full judgment here