Could 'massive constitutional crisis' around the rights of independent candidates postpone the elections?

A "watershed" case dealing with the rights of independent candidates was of such urgency and importance that it could end up postponing the elections in May, the Western Cape High Court heard on Wednesday.

Advocate Alan Nelson, for the New Nation Movement, stressed to Judge Siraj Desai that the omission in the electoral act to provide for independent candidates to stand for national and provincial elections was a "massive constitutional crisis".

READ: Election ballot paper designed to 'minimise risks of miscast ballots' - IEC

Desai said that was a very serious term to use.

Nelson said the matter dealt with the process of how political leaders were chosen.

"We submit this [process] has got nothing to do with the people," said Nelson.

"This is about finding a way to ensure ethical and accountable leaders are appointed. The lack of accountability is the single, most important cause for the problems this country is facing."

'Just a temporary measure'

He said a system based only on political parties "was intended as a temporary measure only… It was never intended that we would forever be bound by this system".

The application followed the 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 prescribed by the Constitution. It is just not facilitated by legislation," Mogoeng noted at the time. 

The applicants in the matter include Khoi leader Chantal Dawn Revell (who wants to stand as an independent candidate), the Mediation Foundation for Peace and Justice and the United Public Safety Front.

The respondents are the President of the Republic of South Africa, the home affairs department, the Electoral Commission of South Africa and the Speaker of the National Assembly.

Nelson, who indicated that he had come out of retirement to argue this case, said that Desai's order would need to be verified by the Constitutional Court.

'Postponement of the election'

Desai doubted that the highest court in the land would hear the matter by the time citizens make their mark on the ballot papers.

Nelson said no one knew that for a fact. 

"If the matter cannot be resolved by 8th of May, then there will be an application for the postponement of the election."

READ: 2019 national elections: Which parties are fighting for your vote?

Desai replied that threatening to place the election in jeopardy was a serious submission.

Nelson said his clients preached peace and unity. It was a non-political movement with an absence of ideology, that wanted a "fresh look at how we do things".

They had raised this matter in court in 2017 already to urgently deal with the matter, he said.

A most important matter

"This is probably the most important matter to come before this court because it contends our electoral system is defective, it contends that the mechanism by which we choose our government, and by which people can express their will [is defective]."

Nelson wanted Desai to declare the omission in the electoral act unconstitutional, while leaving it up to Parliament to decide how to remedy the matter.

"There is nothing that will prevent the president of our country to call a special meeting in Parliament... it can be done."

Desai noted that no democracy was perfect and that there had to be some criteria to determine who stood for election because there were so many political parties.

"This is the real world. Somehow we have to run an election. It is a practical resolution of how to run the situation," he said.

The hearing continues.

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