The Electoral Act is not in line with the Constitution as it does not allow individuals to stand for elections without being part of a political party, the Western Cape High Court heard on Thursday.

The court is hearing the matter for the rights of individuals to stand for elections which was part of a Constitutional Court judgment in June last year in which Chief Justice Mogoeng Mogoeng noted that there was no reason why any citizen could not stand as an independent candidate to be elected to municipal councils, provincial legislatures or the National Assembly.

“The enjoyment of this right has not been proscribed by the Constitution. It is just not facilitated by legislation,” Mogoeng noted at the time. 

Following that part of the judgment, which was the landmark ruling that affirmed the voter’s right to be informed about who is funding political parties and independent ward candidates, civic group New Nation Movement wants an amendment of the Electoral Act.

Currently, the act makes no provisions on which constituency an independent could represent, or how seats would be allocated in the National Assembly (should a candidate wish to run). The Electoral Act further says that a citizen needs to be a member of a political party to hold national or provincial office, yet the Constitution makes no such demand.

“If the rights of individuals, which are enshrined in the Bill of Rights, are being infringed, then we have a constitutional crisis,” argued advocate Alan Nelson, who was representing the applicant in the matter.

Matter postponed for parties’ response

Nelson was at pains to point out that individuals be allowed to assume positions in the National Assembly without being part of a political party.

But Judge Siraj Desai, who is hearing the matter, felt that political parties in the National Assembly needed to be part of the application as the ruling would have a direct impact on them.

“This matter should not be rushed. It must be properly ventilated,” said Judge Desai. 

Bulelani Mkohliswa of the New Nation Movement said he appreciated Desai’s concern as it presented an opportunity for consultation with political parties he understands would be directly affected by whatever decision is taken. 

The matter has been postponed to March 27 to allow for National Assembly political parties to respond to whether they want to join the application or not.

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