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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The Hawks will use whatever relevant information the Zondo commission of inquiry into state capture reveals while treading cautiously so as to not disrupt the process, Hawks head Godfrey Lebeya told the Portfolio Committee on Police on Wednesday.

He said the Hawks had a colonel with a watching brief present at the commission.

“Wherever there is information that can assist an investigation, we’ll be dealing with that,” Lebeya said.

He said the directorate would always engage with National Director of Public Prosecutions Shamila Batohi first.

“We don’t want to disturb what is happening.

“Where a crime has been committed, there will always be a reaction. But we are aware that there are processes underway that you don’t want to disturb.”

Gupta-linked cases investigated

Last week, in answer to a parliamentary question, President Cyril Ramaphosa said he would wait for the report from the commission before taking action against any Cabinet ministers.

However, he added: “Nothing prevents the relevant authorities within the criminal justice system from investigating allegations of impropriety by ministers or any other persons. In any such instances, legal processes must be allowed to be concluded with due regard for the rule of law.”

The Hawks are investigating several cases related to alleged Gupta-led state capture.

They are also investigating facilities management company Bosasa, now known as African Global Operations. In fact, the docket was opened in 2010. Lebeya said the Hawks arrested six suspects aged between 50 and 78 on February 6 on allegations of corruption, money laundering and fraud. 

“The sweeping high-profile arrests follow a marathon investigation wherein almost R1.6bn is said to have been misappropriated in the tender processes for the procurement of various services by the Department of Correctional Services.

“It is alleged that the officials received and accepted gifts in the form of cash, they also allegedly received financial assistance in acquiring properties, acquiring motor vehicles from dealers, other assets and payments to travel agents for overseas travel.

Need for specialised units highlighted

The six suspects will appear in court again on March 27.

“One suspect has not yet been arrested as he is out of the country. Extradition process with the United States of America will be initiated, soon. We expect that he will be arrested to come and join the others,” Lebeya said.

The Hawks took 610 statements for the case. 

According to a statement by committee chairperson Francois Beukman, the committee welcomed the progress made by the Hawks in fighting priority crimes but emphasised the importance of fighting corruption. 

“The Zondo commission has proven invaluable in providing information that the Hawks can use in the investigation and prosecution of crimes of corruption,” said Beukman. 

To achieve this, the committee called for skills enhancement within the commercial crimes section to strengthen the ability of the Directorate for Priority Crime Investigation (Hawks) to investigate and deliver prosecutable cases.     

The committee also called for the establishment and finalisation of the structure of a fully-fledged national bureau for illegal firearms control and of the South African enforcement bureau, which are essential in fighting the proliferation of illegal firearms and narcotics.

The committee remains of the view that specialised units are central to the fight against crime. The committee has also highlighted that the Hawks need a separate budget to empower them to do their work efficiently. 

The school governing body (SGB) of Bryanston High School in Johannesburg has denied that it withheld any sensitive information, which an anti-abuse group says prevented more sexual abuse victims from coming out.

Founding director of Women and Men Against Child Abuse (WMACA), Miranda Jordan-Friedman, addressed the media on Monday morning in Melrose, Johannesburg, saying they had been confronted with “roadblocks and gatekeepers” at the school since the sexual abuse allegations emerged.

On Friday, a sports coach accused of sexually harassing three pupils at the school was fired.

According to the SGB, the man faced a disciplinary panel of three presiding officers, who found him guilty on all counts of sexual harassment and financial mismanagement.

The 33-year-old coach, who has not pleaded yet, is facing sexual assault charges at the Alexandra Regional Court. He is expected back in court on March 12.

The alleged incidents of sexual assault were said to have taken place during netball matches and on school outings between 2017 and 2018. A parent of one of the complainants confirmed this to News24. 

READ: Bryanston High School coach guilty of sexual harassment, dismissed immediately

Jordan-Friedman said three girls had reported the alleged abuse to their principal. Two of them testified at the disciplinary hearing, and one of them – together with her mother – had laid criminal charges against the coach.

She said the school had persuaded the parents of the victims to follow the disciplinary instead of the criminal route.

“We believe that some teachers could have witnessed the abuse because they happened inside the school premises,” said Jordan-Friedman.

‘School has also misled MEC’

She added that Gauteng Education MEC Panyaza Lesufi was also told that the matter was sexual harassment, when in fact it was sexual abuse.

“Some teachers don’t want to be seen standing next to the investigating officer. The school has also misled MEC Panyaza Lesufi. We believe the abuse started a while back. We believe that the girls were sexually groomed by their coach. We demand that the SGB hand over those statements to the police,” she said.

The organisation said it believed that there could be more victims of the coach. 

“The school should have followed the criminal process, rather than the disciplinary hearing. They believed that disciplining the teacher will save the reputation of the school.”

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SGB chairperson Aidan Hillebrand labelled the allegations by WMACA that SGB members were withholding information as incorrect, false and unfounded.

“When the matter first came to the school’s attention, the department of education was notified. On the same day the department was notified, the parent of the learner opened a charge at Sandton police station. Throughout the process, the school has interacted with the police and the department and have always complied with every request for information.

“The school has also had a meeting with WMACA at their request. Throughout the process, the school has communicated with parents and learners. Learners have been encouraged to come forward if they have experienced anything similar and counselling has been made available,” he said.

Hillebrand added that the school had met every request for information from the police.