Constitutional Court judgment opens door for independent candidates to stand for election

11 June 2020 - 10:34 By Ernest Mabuza
The Electoral Act did not make provision for private citizens to be elected to the national or provincial legislatures as independent candidates.
The Electoral Act did not make provision for private citizens to be elected to the national or provincial legislatures as independent candidates.
Image: RAJESH JANTILAL / AFP

In a potential game changer for South Africa's political landscape, the Constitutional Court on Thursday ruled that the Electoral Act was unconstitutional.

This opens the door for independent candidates to stand for national and provincial elections without any affiliation to a political party. 

The application, challenging the constitutionality of the act, was brought by NGO the New Nation Movement (NNM). As it stands, the act allows only candidates of political parties to contest election to the national and provincial legislatures.

“It is thus declared that insofar as it makes it impossible for candidates to stand for political office without being members of political parties, the Electoral Act is unconstitutional,” said Justice Mbuyiseli Madlanga.

The ruling essentially means that a politician no longer needs to be part of a political party to be elected into office.

Madlanga said a conscious choice not to form or join a political party was as much a political choice as was a choice to form or join a political party. The freedom not to associate at all was also a fundamental right.

“Although for some there may be advantages in being a member of a political party ...

“Undeniably, political party membership also comes with impediments that may be unacceptable to others ... it may be overly restrictive to the free spirited, it may be censoring to those who are loathe to be straight jacketed by predetermined party positions.

“In a sense, it just may at times [to] detract from the element of self, the idea of a free self, one’s idea of freedom,” said Madlanga.

The Constitutional Court gave parliament 24 months to fix the electoral system. The Electoral Commission of SA (IEC) said it was ready to assist parliament.

“In accordance with the principle of objective invalidity, a declaration of invalidity that is not coupled with a limit to its retrospective effect would invalidate all elections that followed the first election under the constitution,” said Madlanga.

“For that not to happen, the declaration of invalidity must take effect from the date of this judgment and it is fitting to suspended the declaration of invalidity to afford parliament an opportunity to correct the defect, and a reasonable period of suspension is 24 months.”

A separate concurring judgment penned by justice Chis Jafta held that the deficiency in the Electoral Act “to the extent that it fails to enable adult South Africans to stand for public office as individuals is inconsistent with the constitution”.


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