[2019] ZACC 27 · case CCT110/19
Direct Appeal — Urgency — Urgent Relief
The court's own headnote.
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court. On Thursday 11 June 2020 at 10h00 the Constitutional Court handed down judgment in an application for leave to appeal the judgment and order of the High Court of South Africa, Western Cape Division, Cape Town. The application concerned whether the Electoral Act 73 of 1998 (Electoral Act) is unconstitutional to the extent that it does not provide for adult citizens to be elected to the National Assembly and Provincial Legislatures as independent candidates. Relying on sections 1(d), 46(1)(a) and 105(1)(a) of the Constitution, the High Court dismissed the application.
The applicants appealed to the Constitutional Court. The matter was first heard by the Constitutional Court on an urgent basis on 2 May 2019. The Court concluded that the matter lacked urgency and postponed it for hearing in the ordinary course on 15 August 2019. An argument advanced by all four applicants, New Nation Movement NPC, Ms Chantal Dawn Revell, GRO and Indigenous First Nation Advocacy SA, was that the Electoral Act is unconstitutional for unjustifiably limiting the right to stand for public office and, if elected, to hold office, as conferred by section 19(3)(b) of the Constitution.
In addition, some applicants submitted that the Electoral Act infringes their right to freedom of association protected by section 18 of the Constitution. The participating respondents, the Minister of Home Affairs, the Electoral Commission and the Speaker of the National Assembly, countered that, at best for the applicants, section 19(3)(b) is neutral; it does not require that membership of the National Assembly and Provincial Legislatures must include independents. They argued that on the contrary, other provisions of the Constitution, like sections 1(d), 46(1)(a), 105(1)(a), 57(2), 178(1)(h) and 236,point away from the interpretation contended for by the applicants. The Council for the Advancement of the South African Constitution and the Organisation Undoing Tax Abuse (OUTA) participated as amici curiae (friends of the Court).
In a judgment penned by Madlanga J (concurred in by Cameron J, Jafta J, Khampepe J,Mathopo AJ, Mhlantla J, Theron J and Victor AJ) (first judgment), the Constitutional Court upheld the appeal and set aside the order of the High Court. It held that the Electoral Act is unconstitutional to the extent that it requires that adult citizens be elected to the National Assembly and Provincial Legislatures only through their membership of political parties. In reaching this conclusion, the first judgment held that, despite having been pleaded as being discrete, the freedom of association challenge is inextricably linked to what the content of the section 19(3)(b) right really is. That is so because the applicants’ plea is not only about adult citizens not being coerced to be members of political parties.
It is about not being so coerced so that they may exercise the section 19(3)(b) right. Accordingly, in order to avoid pitting the two rights against one another, the first judgment held that the Court should prefer an interpretation of section 19(3)(b) that promotes freedom of association. In determining whether the respondents’ interpretation of section 19(3)(b) indeed results in a denial of section 18, the first judgment determined the content of the latter right. It considered the constitutional purpose of freedom of association, and its treatment in international and foreign law, and concluded that section 18 not only protects the positive right to associate, but also the “negative right” not to be compelled to associate.
The first judgment thus held that if the state compels an individual to associate with a political party when such individual does not want to – whether by joining or forming a party – that limits the right to freedom of association. 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 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 loath to be straight-jacketed by predetermined party positions. In a sense, it just may – at times – detract from the element of self; the idea of a free self; one’s idea of freedom. Thus a conscious choice not to form or join a political party is as much a “political choice” as is the choice to form or join a political party, as set out in the inexhaustive list of political choices in section 19(1); and it must equally be deserving of protection. But that could not be the end of the matter as it was suggested by the respondents that a party proportional representation system is indicated by a number of other provisions in the Constitution.
In relation to the section 1(d) founding value of “a multi-party system of democratic government”, the first judgment held that this says no more than that South Africa must never be a one-partystate; it says nothing about exclusive party proportional representation. The Electoral Commission also placed reliance on sections 46(1)(a) and 105(1)(a) of the Constitution. These sections require that the electoral system be prescribed by national legislation. The Electoral Commission argued that if Parliament could not even prescribe an exclusive party proportional representation system, it would be left with very little under the power conferred on it by these sections.
The first judgment found that sections 46(1)(a) and 105(1)(a) are not by any means giving Parliament carte blanche. The electoral system it prescribes must be constitutionally compliant. And the question is whether what it has prescribed is constitutionally complaint. In varying degrees, the other provisions invoked by the respondents had some measure of support for the respondents.
But, according to the first judgment, none comes anywhere near indicating sufficiently that the Constitution requires an exclusive party proportional representation system. A constitutional provision that on the face of it provided the strongest support for the respondents’ interpretation was found to be section 157(2)(a). It requires Parliament to enact legislation that prescribes a system of proportional representation exclusively based on party lists, for election to a Municipal Council. After calling for submissions on this issue after the oral hearing, the first judgment accepted the argument by OUTA that section 157(2)(a) entails a discrete and narrow limitation on the rights protected by sections 18 and 19, but only in the local government sphere.
The first judgment also considered the crucial background of what took place in the negotiations for the attainment of democracy. It found that there were issues that uniquely affected municipalities. As a result, negotiations in respect of municipalities were conducted separately from the rest of the negotiation process. Accordingly, the framers of the Constitution may have seen a need to introduce in the Constitution a discrete, internal limit applicable only to the system of election of members of Municipal Councils.
Viewed with this background in mind, the first judgment held that section 157(2)(a) does not contradict section 19(3)(b). Given the importance of political rights within the South African context and the far-reaching implications that such rights have on the right to human dignity, the first judgment held that the rights in sections 18 and 19(3)(b) of the Constitution must be interpreted generously, rather than restrictively. This led to the conclusion that – insofar as it makes it impossible for candidates to stand for political office without being members of political parties – the Electoral Act limits the section 19(3)(b) right. The question was thus whether the limitation is reasonable and justifiable, as envisaged in section 36(1) of the Constitution.
In this regard, the first judgment could conceive of no reason to hold that the limitation is justified, and found that the respondents had offered no compelling justification. It was thus declared that, insofar as makes it impossible for candidates to stand for political office without being members of political parties, the Electoral Act is unconstitutional. 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. For that not to happen, the first judgment held that the declaration of invalidity must take effect from the date of the judgment.
Finally, it suspended the declaration of invalidity for 24 months. A second judgment penned by Jafta J (concurred in by Cameron J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ) agreed with the outcome and reasoning in the first judgment. The second judgment highlighted two principles which guide the interpretation of section 19 of the Constitution. The first principle is that section 19 must be read in its historical context, in which Africans were denied the right to vote and the right to be voted into public office.
The other principle is that the language employed in section 19 must be accorded a generous and purposive meaning to give every citizen the fullest protection afforded by the section. The second judgment held that section 19(3) draws a distinction between citizens by conferring rights upon a specific class of citizens. The bearers of rights enshrined in this section are adult persons who are citizens. The second judgment reasoned that to safeguard the free exercise of the right, the Constitution demands that the actual voting must be conducted in secret.
This is a singular condition that section 19(3) imposes for the exercise of the right to vote. The condition reveals the inter-relatedness between the right to vote and the right to free, fair and regular elections, which is guaranteed by section 19(2). The second judgment further held that section 19(3)(b) must be construed in the same way that section 19(3)(a) is read and understood. It held that it cannot be gainsaid that the right to vote, which is conferred in similar terms, is exercised by voters as individuals, without the need to add words like “as individuals”.
Furthermore, requiring citizens to exercise the right to contest elections and hold office through political parties only subverts section 19(3)(b), as the section confers the right on adult South Africans and not political parties. The second judgment concluded 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. The third judgment of Froneman J agreed that leave to appeal must be granted, but disagreed with the reasoning and outcome of the first and second judgments on the merits of the appeal. The third judgment disagreed with the interpretation of section 19(3)(b) in the first and second judgment for not having proper regard to the constitutionally required electoral framework within which the right “to stand for and, if elected, to hold office” must be exercised.
According to the third judgment, it was not shown that the Constitution prescribes something other than political parties in its fundamental multi-party system of democratic government. The right under section 19(3)(b) needs to be determined not according to the notional ability or preferences of individual adult citizens to stand for, and hold, political office in any general, everyday sense, but according to the actual content of the right within the constitutional democracy envisaged in the Constitution. The third judgment disagreed with the reasoning that, because there may be no obstacle in the Constitution to independent candidates, we should therefore interpret section 19(3)(b) as securing such a right. This, according to the third judgment would be an illogical leap that cannot be sustained because it conflates electoral preferences with constitutional rights.
The entrenchment of proportional representation, and its achievement through the vehicle of political parties, flows from the prioritisation of equality in political voice (every vote counts equally) over the accountability that might be better secured through a constituency-based system or a mixed system.
Published by the court for the media; it does not form part of the judgment.
CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 110/19 In the matter between: NEW NATION MOVEMENT NPC First Applicant CHANTAL DAWN REVELL Second Applicant GRO Third Applicant INDIGENOUS FIRST NATION ADVOCACY SA PBO Fourth Applicant and PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent MINISTER OF HOME AFFAIRS Second Respondent ELECTORAL COMMISSION OF SOUTH AFRICA Third Respondent SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent NATIONAL COUNCIL OF PROVINCES Fifth Respondent Neutral citation: New Nation Movement NPC and Others v President of the Republic of South Africa and Others [ 2019] ZACC 27 Coram: Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J Judgment: Theron J (unanimous) Heard on: 2 May 2019 Decided on: 3 July 2019 Summary: Direct Appeal — Urgency — Urgent Relief JUDGMENT THERON J (Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J and Nicholls AJ concurring): Introduction This is an urgent application for direct leave to appeal to this Court against the
[1]judgment of the High Court of South Africa, Western Cape Division, Cape Town (High Court), delivered on 17 April 2019. The central question is whether it is constitutionally permissible to prohibit eligible South Africans from standing for election to the National Assembly and Provincial Legislatures other than through party lists. The applicants seek an order declaring certain provisions of the Electoral Act 1 invalid in so far as they do not allow independent candidates to stand for election. The matter involves novel and far-reaching questions of constitutional law. The application was lodged in this Court on 18 April 2019 and heard on 2
[2]May 2019. On that day, the parties were requested to address the Court only on the question of urgency. At the end of the hearing, this Court concluded that the applicants had failed to make out a case for an urgent hearing and issued an order adjourning the matter to 15 August 2019, with no order as to costs and indicating that reasons for the order would follow. 2 These are the reasons. 1 73 of 1998. 2 In Commissioner for South African Revenue Service v Hawker Air Services (Pty) Ltd; Commissioner for South African Revenue Service v Hawker Aviation Partnership [2006] ZASCA 51; 2006 (4) SA 292 (SCA) at para 9, the Supreme Court of Appeal held that urgency is a procedural and formal facet of a case. It is not a prerequisite for substantive relief. If a purportedly urgent matter is not actually urgent, then the appropriate order would 2 THERON J Background The first applicant is the New Nation Movement NPC. The second applicant,
[3]Ms Chantal Dawn Revell, describes herself as a representative of Khoi and San communities and a princess of the Korona Royal Household of the Khoi and the San First Nations. 3 At the time when the application was launched in the High Court, the third applicant, GRO, was in the process of being registered as a trade union. The fourth applicant is Indigenous First Nation Advocac y SA PBO. Save for Ms Revell, all the other applicants are not for profit companies or associations. The first respondent (President of the Republic of South Africa) and the fourth respondent (Speaker of the National Assembly) do not oppose this application, while the second respondent (Minister of Home Affairs) and the third respondent (Electoral Commission of South Africa) do. On 17 September 2018, the applicants approached the High Court on an urgent
[4]basis. In the High Court, the applicants sought an order— (a) declaring section 57A of and schedule 1A to the Electoral Act unconstitutional and invalid; (b) declaring that the Electoral Act is unconstitutional because it omits to regulate the position of individuals standing for election at national or provincial level; and (c) directing Parliament to take all necessary steps to resolve these matters “before the 2019 elections”. The applicants amended their notice of motion before the High Court to
[5]remove the reference to the 2019 elections. Instead, the y requested that Parliament be directed to alter the electoral regime “as soon as possible”. As explained in detail generally be to strike the matter off the roll or to postpone it. This then enables litigants to have the matter heard in the ordinary course. 3 New Nation Movement PPC v President of the Republic of South Africa, unreported judgment of the High Court of South Africa, Western Cape Division, Cape Town, Case No 17223/18 (17 April 2019) (High Court judgment) at para 4. 2 THERON J below, this is the primary reason why their application is not urgent. The amendment of the applicants’ relief is indicative of the fact that the applicants d id not necessarily seek the alteration of the current electoral regime before the 2019 elections. There is therefore no need to adjudicate this matter on an urgent basis and before the 2019 elections are held. Rules on urgency Urgent applications are governed by rule 12 of the Rules of this Court, which
[6]provides: “(1) In urgent applications, the Chief Justice may dispense with the forms and service provided for in these Rules and may give directions for the matter to be dealt with at such time and in such manner and in accordance with such procedure, which shall as far as is practicable be in accordance with these Rules, as may be appropriate. (2) An application in terms of subrule (1) shall on notice of motion be accompanied by an affidavit setting forth explicitly the circumstances that justify a departure from the ordinary procedures.” This Court thus enjoys a discretion in urgent applications to authorise a
[7]departure from the ordinary procedures that are prescribed by its Rules. It is usually hesitant to dispense with its ordinary procedures, and when it does, the matter must be so urgent that ordinary procedures would not suffice. 4 In assessing whether an application is urgent, this Court has in the past
[8]considered various factors, including, among others: (a) the consequence of the relief not being granted; 5 4 Kaunda v President of the Republic of South Africa [2004] ZACC 5; 2005 (4) SA 235 (CC); 2004 (10) BCLR 1009 (CC) at para 15. 5 South African Informal Traders Forum v City of Johannesburg; South African National Traders Retail Association v City of Johannesburg [2014] ZACC 8; 2014 (4) SA 371 (CC); 2014 (6) BCLR 726 (CC) (Informal Traders) at para 36; Ex Parte Minister of Social Development [2006] ZACC 3; 2006 (4) SA 309 (CC); 2006 (5) BCLR 604 (CC) at paras 18-20; and Minister of Public Works v Kyalami Ridge Environmental 3 THERON J (b) whether the relief would become irrelevant if it is not immediately granted; 6 (c) whether the urgency was self-created. 7 In AParty, this Court stated that there is a need to announce its conclusions and
[9]reasoning within the shortest possible time where a matter is urgent and may impact upcoming elections. 8 This Court, however, recognised that it is not desirable that issues of considerable importance and complexity regarding elections be determined in haste. 9 Respondents who are defending or explaining an electoral system must have a fair opportunity to collect and present evidence. This Court emphasised that: “Matters concerning elections should ordinarily be brought at the earliest available opportunity because of their potential impact on the elections. If they are brought too close to the elections, this might result in the postponement of the elections. This is not desirable in a democratic society. There may well be circumstances where bringing a challenge earlier is not possible having regard to the nature of the dispute. These circumstances would be very rare. Where the challenge could and should have been brought earlier, a litigant must put out facts, covering the entire period of delay, explaining why the challenge could not have been brought earlier. Failure to do so may well result in the refusal of the relief.” 10 Facts On their papers, the applicants seek the invalidation of the Electoral Act and
[10]the enforcement of the purported right of independent candidates to stand for election. Association (Mukhwevho Intervening) [2001] ZACC 19; 2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC) at para 112. 6 Kaunda above n 4 at para 18. 7 South African Social Security Agency v Minister of Social Development [2018] ZACC 26; 2018 JDR 1451 (CC); 2018 (10) BCLR 1291 (CC) at para 19; AParty v The Minister for Home Affairs, Moloko v The Minister of Home Affairs [2009] ZACC 4; 2009 (3) SA 649 (CC); 2009 (6) BCLR 611 (CC) at paras 57-8 and 66-9; Ex Parte Minister of Social Development, above n 5 at para 17; Transvaal Agricultural Union v Minister of Land Affairs [1996] ZA CC 22; 1997 (2) SA 621 (CC); 1996 (12) BCLR 1573 (CC) at paras 21 and 23. 8 AParty id at para 1. 9 Id. 10 Id at para 66. 4 THERON J As indicated, the applicants initially sought to have the electoral regime overhauled before the 2019 elections. However, the amended relief sought did not aim to impugn the 2019 elections but rather to change the electoral system “as soon as possible”. The consequence of the amended relief is that there is no pleaded reason why
[11]the matter should be determined before the elections. The relief would not become irrelevant after the elections – it could still be sought. The applicants contend in their papers that if the relief they seek is not granted, they may bring an application to review the 2019 national and provincial elections after they had been held. While the applicants held this possibility out as a reason justifying an urgent decision, it does the opposite. The existence of alternative relief demonstrates that a refusal by this Court to determine the matter on an urgent basis would be remediable. The parties will still be able to challenge the elections and if they succeed , they can ensure that the electoral system could be appropriately amended “as soon as possible ”. 11 The merits in this case relate to whether the Electoral Act is unconstitutional to
[12]the extent that it prohibits South African citizens from contesting elections and holding national or provincial public office as independent candidates. This is a matter of utmost importance. It delves into the ambit of the right to vote and its possible limitations. If the applicants’ contentions are well-founded, it may mean that all past national and provincial elections took place under an unconstitutional electoral regime. These are matters which, quite plainly, cannot be considered or determined
[13]hurriedly or superficially. They are complex, important issues that ideally should not be decided urgently. Yet the applicants ask this Court to do precisely that. They seek direct leave to appeal to this Court and they seek to have this matter determined before 11 To some extent, the applicants’ pre-election urgency was self-imposed. It cannot be said that the applicants only recently became aware of their inability to stand for election as independent candidates in the 2019 elections. The Majola decision by the High Court of South Africa, Gauteng Local Division, Johannesburg in 2012 – which concerned the inability of independent candidates to stand for elections in the current legislative framework – should have alerted them to this. See Emperor Thembu (The Second) Votani Majola v State President of the Republic of South Africa 2012 JDR 2214 (GSJ) (Majola). 5 THERON J the elections scheduled for 8 May 2019 – six days after the hearing of this matter. They do so without properly explaining why this matter cannot be dealt with in the ordinary course. This should be the end of the matter. But at the hearing of this application, the
[14]applicants drastically changed the relief they sought. They asked for new ballot papers (to include independent candidates) to be printed for the upcoming national and provincial elections. The applicants submitted from the Bar that should this printing not be possible before the 2019 elections are held, then the elections should be postponed. In terms of section 49(3) of the Constitution, if this Court sets aside an election, another election must be held within 90 days from the date the decision was taken. 12 The applicants further submitted that this would afford Parliament sufficient time to enact new legislation regulating the right of independent candidates to stand for election. The applicants invoked section 49(4) of the Constitution which provides that the National Assembly remains competent to function until the day before the first day of polling for the next Assembly. 13 There are, however, numerous, insurmountable problems for this new relief.
[15]First and foremost, the applicants have not made out a case on the papers for the printing of new ballot papers or a postponement of the elections – either before the High Court or in this Court. Consequently, the new case was not the case that the respondents were required to meet; the respondents have not had an opportunity to present their defence to this new case before the Court. Moreover, other parties might have applied to join the matter had this relief been clearly pleaded in the High Court and this Court. This is especially so in light of this Court’s finding in Mhlope that postponing the elections might create a “constitutional crisis”. 14 12 It is not necessary, at this stage, for this Court to consider and pronounce on the applicability of section 49(3) of the Constitution. 13 Section 49(4) of the Constitution provides that: “The National Assembly remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next Assembly.” 14 Electoral Commission v Mhlope [2016] ZACC 15; 2016 (5) SA 1 (CC); 2016 (8) BCLR 987 (CC) (Mhlope) at para 85. 6 THERON J The submissions from the Bar also run counter to the applicants’ evidence in
[16]the High Court. It was clear when the Commission filed its answering affidavit in the High Court in October 2018 that the electoral system could not practically be changed in time for the 2019 elections. The applicants accepted on oath before the High Court that it would not be possible for the regime they seek to be put in place in time for the 2019 elections. It was in that context that the applicants abandoned the prayer that Parliament must be ordered, before the 2019 elections, to effect amendments that enable individuals to stand for election to the National Assembly and Provincial Legislatures. They had since become content with an order that required amendments “as soon as possible”. It is now all the more clear that the electoral regime cannot be altered before
[17]the 2019 elections. This case was heard with the main voting day merely days away. Over sixty million ballot papers had already been printed, packaged and distributed across the country. Moreover, voting in the elections had already begun – voters outside the country voted on Saturday, 27 April 2019. The applicants failed to account for whether the postponement of the elections would invalidate the votes of South Africans who had already voted. In addition to these practical concerns, there is a complex legal conundrum for
[18]the applicants. Parliament had been dissolved by the time this matter was heard. The question whether Parliament could be reconvened in order to effect the necessary legislative changes to accommodate the electoral regime they proposed, presents a further possible complication in granting the new relief sought. Section 49(4) of the Constitution provides that the National Assembly remains competent to function until the day before the first day of polling for the next Assembly. It may be that the first day of polling was on Saturday, 27 April 2019, when voters abroad had already cast their votes; in which case the National Assembly would no longer be competent. 7 THERON J This Court is not in a position to make a finding as to whether the first day of
[19]polling had come and gone. It is not an aspect that any of the parties has addressed, either in their written or oral submissions. This Court is, with good reason, reluctant to pronounce upon complex matters that have not been fully ventilated. 15 Conclusion It is unfortunate that the applicants brought this matter to this Court in this
[20]fashion. The consequences of adjudicating this matter on an urgent basis, and the nature of the remedies sought by the applicants, strongly swing the balance away from hearing it on an urgent basis. This is particularly so when the relief sought on the papers did not impact the impending elections, and will not become irrelevant should it be granted after the 2019 elections. In the result, the application for direct appeal was postponed to 15 August
[21]2019. 15 AParty above n 7 at para 56. 8 For the Applicants: For the Second Respondent: For the Third Respondent: For the Fourth and Fifth Respondents: A Nelson SC, C Brown, R S Willis and S Gaba: Instructed by Aphalla Mokate Conradie Inc N A Cassim SC and P Mhlana: Instructed by State Attorney S Budlender, N Luthuli and M Gwala: Instructed by Moeti Kanyane Attorneys Inc M Vassen: Instructed by State Attorney
Read from the court's own list. Judgments are official texts; verify against the court's file before you rely on this page. Firms on AttorneyOS get judgments like this one against the matters they touch, in the Monday edition.