Constitutional Court rules Electoral Act unconstitutional

The Constitutional Court has found South Africa’s Electoral Act unconstitutional.

This morning’s ruling effectively means that independent candidates will be allowed to contest national and provincial elections without being members of political parties.

Judge Mbuyiseli Madlanga announced the ruling that the electoral act is unconstitutional, and the law must be changed.

Justice Madlanga said that “given the importance of political rights within the South African context and the far-reaching implications that these rights have on the right to human dignity, these rights must be interpreted generously rather than restrictively”.

“Insofar as it makes it impossible for candidates to stand for political office without being members of political parties, the Electoral Act is unconstitutional,” he said.

Madlanga said the act limited the right to freedom of association. He said if an individual was free to associate, he or she must also be free not to associate.

“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,” he said, “It may be too trammelling to those who are averse to control, it may be overly restrictive to the free spirited, it may be censoring to those who are loathe to be straightjacketed by pre-determined party decisions. It just may at times detract from the idea of a free self”.

Of the state’s argument that the constitution provided for a multi-party system of democratic governance, the justice said he read this to say “no more than to say South Africa must never be a one party state.”

“It says nothing about an exclusive party proportional representation system,” he said.

He said the declaration is suspended for 24 months to allow for changes in the law to take place.

“This judgement finally allows citizens to chart their own path,” said Mmumsi Maimane, former DA leader.

A little known NGO, the New Nation Movement bought the case to the court.

At the heart of the matter was the constitutionality of the Electoral Act which did not permit eligible South Africans to be elected to the National Assembly and provincial legislatures as independent candidates.

In 2019, the New Nation Movement and others filed with the Constitutional Court an urgent application for leave to appeal a Western Cape High Court decision.

On 17 September 2018, the applicants had approached the high court seeking an order declaring section 57A and Schedule 1A to the Electoral Act unconstitutional because they prevent independent candidates from standing for election to the National Assembly and provincial legislatures.

The high court, however, dismissed the application, stating that the applicants may establish a political party through which they can stand for election to the provincial and national legislatures.

This prompted the applicants to approach the Constitutional Court which concluded that the applicants had failed to make out a case for an urgent hearing.

• This story has been updated with further quotes from Justice Madlanga.

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