Lawyers representing the Electoral Commission of SA (IEC) have argued that Section 19 of the Constitution – used as a basis for a court challenge lodged by the New Nation Movement (NNM) – does not allow an independent candidate to run in national and provincial elections.
Advocate Steven Budlender argued in the Constitutional Court on Thursday: “Our submission is that Section 19 allows you to run for office in terms of the system that is in place.
“Section 19 does not speak to this issue at all. One makes political choices all the time without going to elections. If you go to a rally, that is a political choice.”
Budlender was arguing on behalf of the respondents, the IEC, after the NNM approached the Constitutional Court to challenge the current Electoral Act 73 of 1998, saying it does not make provision for candidates to run for election independently.
Budlender was responding to the applicant’s earlier argument that sections 19(1) and 19(3) afford an individual the right to exercise their political choice to vote, to stand for office and to hold office.
Section 19 in Chapter 2 of the Bill of Rights refers to a citizen’s political rights. In summary, Section 19(1) states that “every citizen is free to make political choices”, including the right to form a political party, participate in the activities of, or recruit, members for a political party and to campaign for a political party or cause.
Section 19(3) grants every citizen the right [in summary] to vote in elections, to stand for office and if elected, to hold office.
Advocate Tembeka Ngcukaitobi submitted that, in his interpretation, the section allows this exercise to occur even outside of a political party.
“In order to understand 19(3) you have to understand 19(1). Those who elect not to make political choices through a party should not be disenfranchised.
“The current electoral system prescribed by the Electoral Act unjustifiably infringes that right by requiring citizens to stand for election through a political party,” Ngcukaitobi previously explained.
While Budlender submits that there is no justification to exclude a candidate, he also submitted that the current electoral system did not make these provisions.
“Section 19 was not intended to give that right to contest elections. The citizen has the right to join an NGO, protest, join a political party etc.
“How can it be a serious impediment to form a political party? There is nothing difficult about it,” he argued.
The NNM is asking the court with constitutional-matter jurisdiction to grant it direct leave to appeal.
In addition, the movement wants the court to declare the Electoral Act unconstitutional.
Judgment has been reserved