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[2019] ZAWCHC 43
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New Nation Movement PPC and Others v President of the Republic of South Africa and Others (17223/18) [2019] ZAWCHC 43; 2019 (5) SA 533 (WCC) (17 April 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 17223/18
In the matter between:
NEW
NATION MOVEMENT
PPC
First Applicant
CHANTAL
DAWN
REVELLE
Second Applicant
MEDIATION
FOUNDATION FOR PEACE AND JUSTICE
Third Applicant
GRO
Fourth Applicant
INDIGENOUS
FIRST NATION ADVOCACY SA PBP (FNASA)
Fifth Applicant
and
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
First
Respondent
MINISTER
OF HOME
AFFAIRS
Second Respondent
THE
ELECTORAL COMMISSION OF SOUTH AFRICA
Third Respondent
THE
SPEAKER OF THE NATIONAL ASSEMBLY
Fourth Respondent
JUDGMENT: WEDNESDAY, 17 APRIL 2019
DESAI,
J:
1.
The right to elect and be elected for public office is a fundamental
tenet of modern democracy. It is the Applicant’s case
that the
electoral laws of this country impinge upon that right in a
constitutionally invalid manner, more especially in that they
fail to
regulate the position of individuals who wish to stand for election
at national or provincial level.
2.
The matter was launched on an urgent basis and the Applicant sought
an order compelling parliament to remedy the perceived invalidity
forthwith and before the pending elections set to take place on 8 May
2019 - that is a few weeks from now. The relief sought has
been
amended and the Applicant’s now ask that it be resolved “as
soon as possible”. Any relief granted would,
I think, cause
substantial distress and uncertainty in relation to the upcoming
elections.
3.
Save for the Second Applicant, the applicants are not for profit
companies or associations. They appear to have similar objectives
and
it is not entirely clear from their papers whether each of these
organisations has a distinct membership and the extent thereof.
The
founding document of the First Applicant states,
inter alia
,
“
the nation has been robbed of its birthright of direct
representations in a people’s governance system and of the
nation’s
resources through the implementation of an unjust,
partisan, greed-driven, secular-humanist system
”. Such
language permeates the document. Ultimately it is akin to the charter
of a political organisation, albeit phrased
in somewhat unusual
language.
4.
The Second Applicant,
Chantal Dawn Revell
, describes herself
as “
a Princess of the Korona Royal Household which is one of
the five official Royal Priesthoods of the Khoe and the San First
Nations
”. She advances the position that “
the Khoe
and the San people were the original stewards of all of the land in
South Africa and “were deprived of their possession
of the land
not only by white people from Europe but also by black people from
the rest of Africa
”. She maintains that the “First
Nation Peoples” have been excluded from the debate regarding
land expropriation
and in her view biblical values should govern the
process. She predicts a civil war if the ruling party does so solely
on racial
grounds.
5.
Their complaint appears to be that the Electoral Act 73 of 1998 (the
Electoral Act) does
not make provision for independent candidates to
contest the provincial and national elections. It means that South
Africans can
only become members of parliament if they belong to a
particular party. They argue that the closed party lists system has
the effect
that the political parties choose their representatives
and not the electorate. They say its greatest weakness is that it
does
not ensure individual accountability.
6.
Advocate A Nelson SC
, who appeared with
Advocate C Brown
on behalf of the Applicants, was not entirely clear whether his
clients were advocating a constituency based system. Alerted to
the
problems of such a system in contemporary South Africa, where spatial
apartheid persists, he later in the course of his argument
opted for
a hybrid system.
7.
The Applicants contend that an individual’s rights to stand for
public office are unjustifiably limited by the current
electoral
system. The questions which arise are the following:
What
stops the Applicants from exercising the right contained in Section
19 (3)(b) of the Constitution and what stops them from
joining or
forming a political party?
The
First Applicant registered or intended to register a political party.
If that party wins enough votes in the national election,
any member
of that party could be elected to public office. However, he or she
would not have acquired that position by running
as an independent
candidate.
8.
The Second Applicant provides two rather tenuous reasons why she
cannot join a political party:
Firstly,
she does not want to belong to a political party because she has no
confidence in their ability to care for or represent
the interests
for which she stands as a woman, a mother and a member of the
so-called First Nation Peoples. Secondly, the Royal
Houses that she
represents have committed themselves to be impartial and politically
non-partisan.
This
explanation warrants little comment and is hardly compelling.
9.
It is accordingly apparent that the Second Applicant
can
join
a political party and stand for public office. She elects not to do
so. If she does not wish to join any other political
party she
is at liberty to establish a political party of her own.
10.
Nelson SC
argued on behalf of his clients, the Applicants,
that the present system is not as good as the system they would
prefer. That,
however, is not a matter of constitutional law even
though it may be supported by significant political authority. The
merits or
demerits of the disputed legislation are not at issue. What
this court has to decide is the constitutionality or otherwise of the
relevant legislation.
11.
Section 19(3)(b) of the Constitution reads as follows: “
every
citizen has the right to stand for public office and, if elected, to
hold office
”. Applicants contend that the effect of this
section is that every citizen has the right to stand “
as an
independent candidate to be elected to municipalities, provincial
legislatures and to the national assembly
”. On the basis of
this interpretation the Applicants seek further declaratory relief,
inter alia
, orders that
Section 57A
and
1A
of the
Electoral
Act are
unconstitutional and invalid. In support of its
interpretation of
Section 19(3)(b)
, the Applicants rely upon the
wording of the section and, more significantly, upon a dictum at
paragraph 29 of the judgment of
Mogoeng CJ
in
My Vote
Counts NPC v The Minister of Justice and Correctional Services and
Others [2018] ZACC at 17
.
12.
Prior to this judgment there was no suggestion from any quarter that
Section 19(3)(b)
, implied the right to run independently for office
and that our electoral system may not be constitutional.
13.
The clear wording of
Section 19(3)(b)
does not necessarily mean what
the Applicants contend. Nowhere in the wording of the section does it
expressly state that standing
for office must include standing for
such office “
as an independent candidate
” as
opposed to a member of a political party. Similarly, nowhere in the
wording of the said section does it state that “
public
office
” necessarily includes public office at every level
of government.
14.
A consideration of the Constitution as a whole does not support the
Applicant’s interpretation of Section 19(3)(b).
In
particular: Section 1 contains the founding values of the
Constitution and provides at subparagraph (d) that the Republic of
South Africa is a sovereign, democratic state founded on “
universal
adult suffrage, a national common voter’s roll, regular
elections and a
multi-party system of democratic government
(my underlining), to ensure accountability, responsiveness and
openness
”.
The
provisions of
Sections 46(1)(a) and 105(a) of the Constitution
accords parliament the discretion to prescribe electoral systems for
the National Assembly and Provincial Legislatures which result,
in
general, in proportional representation.
15.
Moreover, the sections that concern elections in local municipalities
expressly provide for ward representation and elections.
16.
As
Advocate N Cassim SC
, who appeared with
Advocate P
Mhlana
on behalf of the Second Respondent, has correctly pointed
out, the full wording of Section 19 does not expressly provide for
independent
candidates. It follows that a textual interpretation of
Section 19(3)(b), does not include a right to stand for public office
as
an independent candidate.
17.
The Fourth Respondent (the Speaker of the National Assembly) sets out
in her affidavit the historical context of the political
rights in
the bill of rights and to the electoral systems as a whole. The
historic context shows that Section 19(3)(b) could not,
on a
purposive interpretation have required that independent candidates
stand for office in a constituency-based election.
18.
Mokgoatlheng J
in the South Gauteng High Court considered an
almost identical matter (see:
Majola v The State President of the
Republic of South Africa [2012] ZAGP JHC 236
), and in my view
correctly concluded that the
Electoral Act did
not impede the
Applicants’
Section 19
rights. He found further that the
Constitution entrenches a party system. The application was
accordingly dismissed.
19.
The high water mark of
Nelson SC
’s submissions appears
to be that it would be permissible for parliament to put in place a
constituency based system. He did
not demonstrate that it was
required for parliament to do so. At best for him he has established
that the Constitution does not
prohibit a system which allows
independents to run. The Constitution permits parliament to make a
choice between allowing independents
to run at national and
provincial level or only allowing them to run at local level. Once
parliament has made the choice, that
choice is not unconstitutional.
20.
Section 19, the section upon which
Nelson SC
relied so
heavily, locates political parties at the centre of political rights
and that is in fact what the Constitutional Court
says in
Ramakatsa
and Others v Magashule and Others 2013 (2) BCCR 202 (CC)
. I shall
revert to this decision shortly.
21.
Section 19(1) reads as follows:
Every citizen is free to make
political choices, which includes the right:
a)
To form a political party;
b)
To participate in the activities of or recruit members for, a
political party; and
c)
To campaign for a political party or cause.
22.
In the final analysis, Applicants’ case almost entirely rests
upon a statement in
My Vote Counts (
supra
)
.
The statement is
obiter dictum
.
Nelson SC
initially
conceded that the remarks were
obiter
. He did so in his Heads
of Argument. During the course of argument he contended that it is a
ratio
because there is reference to independents
throughout the judgment, according to him fifty-five times. The mere
fact that reference
is made to independent candidates fifty-five
times is utterly irrelevant and does not make it
ratio
because the nub of the case was not about that at all. That case is
whether someone running for office has to reveal his or her
funding
information and the answer in the case was yes.
23.
The remarks are quite patently
obiter
and accordingly not
binding on this Court. However, they emanate from the highest court
in the land and are of enormous persuasive
force. The problem though
is that there is a directly opposite
obiter
in the
Ramakatsa
(
supra
)
and this Court is left with the
unenviable task of charting its own course.
24.
In
My Vote Counts
the Constitutional Court held as follows:
[Section 19 of the Constitution]
addresses the fundamental right every citizen has “to stand for
public office and, if elected,
to hold office”. Our
constitution does not itself limit the enjoyment of this right to
local government elections. The right
to stand for public office is
tied up to the right to “vote in elections for any legislative
body” that is constitutionally
established. Meaning, every
adult citizen may in terms of the Constitution stand as an
independent candidate to be elected to municipalities,
Provincial
Legislatures or the National Assembly. The enjoyment of this right is
not and has not been proscribed by the Constitution.
It is just not
facilitated by legislation. But that does not mean that the right is
not available to be enjoyed by whoever might
have lost confidence in
political parties. It does, in my view, remain open to be exercised
whenever so desired, regardless of
whatever logistical constraints
might exist”.
25.
It must be noted that until this dictum it was not understood that
Section 19 of the Constitution conferred the right on members
of the
public to stand as independent candidates.
26.
The contrary seems to appear from an earlier decision of the
Constitutional Court. In
Ramakatsa (
supra
)
the Court held:
“
Our democracy is founded on
a multi-party system of government. Unlike the past electoral system
that was based on geographic voting
constituencies, the present
electoral system for electing members of the national assembly and of
the provincial legislatures must
“result, in general, in
proportional representation”. This means a person who intends
to vote in national or provincial
elections must vote for a political
party registered for the purpose of contesting the elections and not
for a candidate. It is
the registered party that nominates candidates
for the election on regional and national party lists.
The
Constitution itself obliges every citizen to exercise the franchise
through a political party
. Therefore political parties are
indispensable conduits for the enjoyment of the right given by
Section 19(3)(a) to vote in elections.
27.
Advocate S Budlender
, who appeared with
Advocate N Luthuli
on behalf of the Third Respondent, the Electoral Commission of South
Africa, has submitted that the
dictum
in
My Vote Counts
must be treated with caution. I agree. It certainly cannot be used
uncritically to conclude that the electoral system which has
operated
in South Africa for twenty years was for all of that time in breach
of the Constitution. This core issue which arises
for determination
is considerably more complex than the Applicants suggest and cannot
be resolved simply by relying on the above
quoted
obiter
remarks in
My Vote Counts
.
28.
Even if I were to accept the
My Vote Counts
dictum
in
preference to the apparently contradictory
dictum
in
Ramakatsa
, there are certain difficulties.
29.
On the one hand the dictum recognises that the right of independent
candidates to participate in national and provincial government
elections is “
not facilitated by legislation
”. At
the same time, it holds “…
it does, in my view,
remain open to be exercised whenever so desired, regardless of
whatever logical constraints might exist
”. If these
statements are given the meaning for which the Applicants contend, it
is difficult to reconcile the said statement.
30.
The Constitution requires the exercise of political rights under
Section 19 to be regulated by national legislation (see:
Constitution
Sections 10 and 191
). The Constitutional Court has recognised
that “
the mere existence of the right to vote without proper
arrangements for its effective exercise does nothing for democracy,
it is
both empty and useless
” (see:
New National Party
of South Africa v The Government of the Republic of South Africa and
Others
[1999] ZACC 5
;
1999 (3) SA 191
(CC) at para 11
). There appears to be no
legislative framework to facilitate independent members standing for
election and the problem, if such,
should accordingly be addressed at
that level.
31.
It is common cause on the papers that parliament is already seized
with the matters dealt with in this application since late
2017. The
Applicants say so expressly “
I accept that the current
electoral system and the need for change is currently before
parliament as a consequence of the High Level
Panel
” (see:
Replying Affidavit page 464 para 24.1
). The question then is
whether in these circumstances this court should intervene in the
parliamentary process. In this instance
it does not appear to be
justifiable for this Court to interfere.
32.
As
Cassim SC
submitted, the Applicants seek to exact from the
judiciary what they cannot obtain in the political arena. It is not
difficult
to establish a political party. The Applicants are well
versed in setting up non-profit and public benefit organisations. The
essential
skills to perform these functions can be readily employed
to establish a political party. The Applicants can then take their
political
discord with the party-centred election process in the
Constitution to the electorate. That may be its proper remedy.
33.
One final matter warrants comment. Applicants in their papers refer
to “
civil war
” and “
genocide
”.
During the course of argument I asked
Nelson SC
whether he
would consider asking his clients to review the use of such language.
He declined to do so. The terms are reminiscent
of humanity at its
worst. The use of such terminology often compounds the problem and is
to be deprecated.
34.
In the result,
THE APPLICATION IS DISMISSED AND THERE IS NO ORDER
AS TO COSTS
.
……………………
DESAI,
J