CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 110/19
In the matter between:
SPEAKER OF THE NATIONAL ASSEMBLY First Applicant
CHAIRPERSON: NATIONAL COUNCIL OF PROVINCES Second Applicant
MINISTER OF HOME AFFAIRS Third Applicant
and
NEW NATION MOVEMENT NPC First Respondent
CHANTAL DAWN REVELL Second Respondent
GRO Third Respondent
INDIGENOUS FIRST NATION ADVOCACY SA PBO Fourth Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Fifth Respondent
ELECTORAL COMMISSION OF SOUTH AFRICA Sixth Respondent
and
COUNCIL FOR THE ADVANCEMENT OF
THE SOUTH AFRICAN CONSTITUTION First Amicus Curiae
ORGANISATION AGAINST TAX ABUSE Second Amicus Curiae
Neutral citation: Speaker of the National Assembly and Others v New Nation
Movement NPC and Others [2023] ZACC 12
2
Coram: Zondo CJ, Maya DCJ, Kollapen J, Madlanga J, Majiedt J,
Mathopo J, Mhlantla J, Rogers J and Tshiqi J
Judgment: Maya DCJ (unanimous)
Order issued on: 20 January 2023
Reasons issued on: 20 April 2023
Summary: Suspended declaration of invalidity — Urgent application for a
further extension o f a suspension of invalidity — Eleventh hour
application — Interests of justice — 2024 Elections
REASONS FOR ORDER
MAYA DCJ (Zondo CJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Rogers J and Tshiqi J concurring):
Introduction
[1] This is an application for an extension of the further suspension of the order
made by this Court on 11 June 2020 in New Nation Movement II (first order).1 In that
matter, this Court declared the Electoral Act2 unconstitutional to the extent that it
stipulates that adult citize ns may be elected to the National Assembly and
Provincial Legislatures only through their membership of political parties. This Court
1 New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11; 2020 (6) SA
257 (CC); 2020 (8) BCLR 950 (CC). Owing to the earlier judgment in New Nation Movement NPC v President
of the Republic of South Africa [2019] ZACC 27; 2019 (9) BCLR 1104 (CC), where this Court dealt only with
the question of urgency in respect of an urgent application for direct leave to appeal to it. There too, the central
question was whether i t is constitutionally permissible to prohibit eligible South Africans from standing for
election to the National Assembly and Provincial Legislatures o ther than through party lists. To avoid
confusion, for the purposes of this judgment I shall refer to the 2020 judgment as New Nation Movement II.
2 73 of 1998.
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in the first order suspended the declaration of invalidity for a period of 24 months to
afford Parliament an opportunity to remedy the defect.3 Counting from the date of the
order, the per iod of suspension expired on 10 June 2022. On 10 June 2022, and
arising from an application to this Court by the applicants, an order was issued
extending the suspension of the order for a period of six months, that is, from
10 June 2022 to 10 December 2022 (second order).4 The reasons for that order were
issued on 29 June 2022.
[2] Serving before us was another application brought on an urgent basis on
Monday, 5 December 2022 for yet anothe r extension . On 9 December 2022 , this
Court granted an interim order, in terms of which the declaration of invalidity was
further suspended from 10 June 2022 to 31 January 2023 , pending a final
determination of the application. The interim order was granted to avoid the lapse of
the second order on 10 December 2022 and the coming into effect of the declaration
of invalidity a s it was clear that Parliament would not be able to meet that deadline.
The interim order also called for submissions from the parties.
[3] Following the filing of written submissions by the parties, this Court, on
Friday, 20 January 2023, made the following order:
1. Condonation for the late filing of the first respondent’s written
submissions is granted.
2. The first respondent’s counter-application is refused.
3. The declaration of invalidity in paragraph 5 of the order of this Court in
New Nation Movement NPC and Others v President of The Republic of
South Africa and Others (CCT 110/19) [2020] ZACC 11; 2020 (6) SA
257 (CC); 2020 (8) BCLR 950 ( CC) is further suspended from
10 December 2022 to 28 February 2023.
3 New Nation Movement II above n 1 at paras 4 and 5 of the order.
4 Speaker of the National Assembly v New Nation Movement NPC [2022] ZACC 24; 2022 (9) BCLR 1165 (CC).
Here, the applicants applied for the first extension in respect of order 5 in New Nation Movement II.
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4. No order as to costs is made.
5. Reasons for this order shall be given at a later date.
[4] This matter was decided without a hearing. These are the reasons for the order.
Urgent extension application
[5] Four days before the expiry of the further suspension period granted by this
Court in the second order, the applicants, the Speaker of the National Assembly
(Speaker), the Chairperson: National Council of Provinces, and the Minister of
Home Affairs jointly filed an urgent application in this Court seeking a further
extension of the suspension period until 28 February 2023. In the alternative, they
sought an interim extension whilst this Court considered whether the further extension
sought should be granted.
[6] Participating in the matter were the first, second and sixth respondents, namely
the New Nation Movement NPC (New Nation Movement), Ms Chantal Dawn Revell
and the Electoral Commission of South Africa (Commission), respectively. The
New Nation Movement and Ms Revell opposed the application for the grant of
an extension. The Commission supported the application as it found the
extension application competent on condition that the extension did not run beyond
28 February 2023 and it filed a notice to abide. Two amici curiae, the Council for the
Advancement of the South African Constitution and the Organisation Against Tax
Abuse, also abided by this Court’s decision.
[7] On 9 December 2022 , the respondents were directed by this Court to file
answering affidavits on or before Monday, 19 December 2022 , and written
submissions by 9 January 2023. Written submissions were received from the New
Nation Movement, Ms Revell, and the Commission. The New Nation Movement’s
written submissions were two days late and it accordingly applied for condonation. It
also filed a counter-application, which Ms Revell supported.
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[8] As in the first extension application, the tussle here was about whether the
urgent application for an extension should be granted, with re gard being had to the
principles relating to urgent applications, the time the application was brought, and the
implications which the terms of the order in New Nation Movement II have for our
democracy and the rule of law.
Applicants’ submissions
[9] The applicants stated that, until late November 2022, Parliament was on track
to pass the Bill before the scheduled deadline of 10 December 2022. However, when
the National Council of Provinces (NCOP) passed the Bill, together with proposed
amendments, on 29 Nov ember 2022 and referred it back to the National Assembly, it
became evident that the proposed amendments were substantive and required further
public participation, as they arose during the NCOP process and had therefore not
been subjected to direct public discussion. Having determined this, the applicants
realised that the consequence of the necessary public consultation would be that the
Bill could not be enacted by 10 December 2022. This, they submitted, was the reason
for seeking the extension shortly before the expiry of the extension period previously
granted. And they immediately instructed the ir legal representatives to urgently file
this application once they realised the need to approach this Court.
[10] The applicants submitted that the amendments proposed by the NCOP include
a proposed broader electoral reform that goes beyond merely including independent
candidates in the 2024 elections. They explained that while it is not possible for such
reform to be implemented in time for the 2024 elections, they held the view that the
issue should nonetheless be considered formally and expeditiously. The proposed
amendments also related to the current Bill which , according to the applicants, treats
independent candidates unfavourably as compared to politica l parties when it comes
to the number of signatures that must be obtained for inclusion on the ballot paper.
[11] The applicants submitted that the Bill is not intended to determine the position
for all future elections. Rather, it is intended to act as a stop-gap measure for the
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2024 elections and put a system in place in which independent candidates will be
given an opportunity to run. After the Bill is enacted, the public and Parliament can
then debate the merits of a more radical and extensive electoral r eform. According to
the applicants, there is insufficient time to properly debate, consult on and implement
wide-ranging reforms in time for the 2024 elections. Therefore, it is inappropriate to
make wide -ranging and long -term decisions regarding the ele ctoral system at this
stage.
[12] The applicants further pointed out that, if an extension was not granted, the
declaration of invalidity would come into effect and there would be no binding
electoral system for the National Assembly and Provincial Legislature s. Further, if
the deadline lapsed, this Court would not have the authority to suspend the declaration
of invalidity.
First respondent’s submissions
[13] The New Nation Movement opposed the grant of an extension and filed a
counter-application accompanied by an application for condonation for its late
submissions. Its explanation for the delay was that its submissions could only be
prepared during the December recess period when its counsel were travelling. It
asserted that the delay was minimal and would cause no prejudice to any party to
these proceedings.
[14] The New Nation Movement argued that a grant of the extension would
necessitate adequate time to be afforded in order to challenge the constitutional
validity of the Electoral Act, as amended (in procee dings from the High Court to
this Court). And, once that challenge was finalised, there would have to be adequate
time for the Commission to start with the electoral process. It argued that the
applicants had failed to establish why the pending amendment s justified their failure
to meet their obligations under the New Nation Movement II judgment. In its
submission, the amendments concern a new statutory body that must consider the
electoral system beyond 2024, and, as such, have nothing to do with the or der of
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this Court in New Nation Movement II. This was so, it argued, because the defect that
Parliament had to remedy was the Electoral Act’s failure to allow independent
candidates to contest national and provincial elections . Additionally, that the
applicants did not sufficiently explain Parliament’s failure to remedy that particular
defect within the suspension and extension periods.
[15] In its counter-application, the New Nation Movement sought a declaration that
Parliament had failed to meet its constit utional obligations, leave to challenge the Bill
and directives for that hearing, and a supervisory interdict, in the alternative to the
constitutional challenge.
Second respondent’s submissions
[16] Ms Revell argued that (a) the relief sought by the applicant s was not sustained
by the facts set out in their affidavits; (b) the time period for the extension sought
seemed irrational and should not be accepted by this Court as credible; and (c) the
amendments cited by the applicants are not required to give effect to her right to stand
for public office. She submitted further that the applicants had dragged their feet and
simply failed to meet the deadlines set by this Court and their own deadlines. As
such, there was no guarantee that the applicants would adher e to the deadline this
time, despite the Speaker’s assurances to this Court on how much time is required to
finalise the process. Their previous assurances have proven to be wholly unreliable.
She argued that the application should fail and the counter -application succeed in the
light of Parliament’s failure to comply with the New Nation Movement II judgment
and the second order.
Sixth respondent’s submissions
[17] The Commission found the extension application competent as long as the
extension did not go beyond 28 February 2023. It objected only to a longer extension
on the basis that it would be prejudicial to it, taking into account the adjustments and
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preparations it has to make, which are inclusive of redesigning its systems to
accommodate the new electoral system, in order to run free and fair elections in 2024.
Analysis
Urgency
[18] In terms of rule 12 of the Rules of this Court, an urgent application must be by
way of a notice of motion supported by an affidavit, “setting forth explicitly the
circumstances that justify a departure from the ordinary procedures”. Circumstances
which render the application urgent must be explicitly set out in the supporting
affidavit to enable the Court to exercise its discretion and authorise a departure from
the ordinary procedures.
[19] In determining whether this matter is urgent, this Court considers, among
others, the adequacy of the reasons provided for the failure to comply with the
extended suspension period, the consequences if the relief sought is or is not granted,
and the prospects of curing the constitutional defects within the new deadline or, more
generally, the prospects of complying with the deadline.5
[20] As stated, in the present case the suspension period of the order was set to
expire on 10 December 2022. It does appear from the applicants’ undisputed
explanation for the delay that Parliament had not remained supine and that, were it not
for the belated amendments to the Bill occasioned during the NCOP leg of the
relevant process, which demand public consul tation, it would have met the deadline.
In the Commission’s assessment, an ex tension to 28 February 2023 would still afford
it sufficient time to finalise the necessary processes. This explanation does not seem
unreasonable. The Commission is a critical role player in these proceedings. It saw a
benefit in allowing the extension, albeit expressing a strong, well -motivated view
against a prolonged delay beyond 28 February 2023.
5 Electoral Commission of South Africa v Speaker of the National Assembly [2018] ZACC 46 ; 2019 (3)
BCLR 289 (CC) at para 69.
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[21] To my mind, these were compelling reasons for an expedited resolution of the
matter. And so was the ominous threat that, if an extension was not granted and the
deadline lapsed , the declaration of invalidity would come into effect . There would
then be no binding electoral system for the National Assembly and
Provincial Legislatures and this Court would not have the authority to suspend the
declaration of invalidity . So, despite the last minute launch of the application, in the
public interest and to avoid Parliament’s otherwise inexorable failure to meet the
deadline of the second order, this Court had to decide the matter on an urgent basis.
Power of this Court to grant an extension
[22] Section 172(1)(b) of the Constitution affords courts a wide discretionary power
to grant a just and equitable remedy. The predominant consideration in the exercise of
this power is the interests of justice. In Electoral Commission of South Africa,
this Court stated that “extensions should be granted with great caution and ‘not be
granted simply as a matter of course or at the last minute’”. 6 The power to extend the
period of suspension of a declaration of invalidity is to be exercised sparingly. 7 A
proper case justifying the need for an extension must be made out because the effect
of suspending the operation of a declaration of invalidity is to p reserve law which has
been found unconstitutional and void, usually, as was the case here, to afford
Parliament opportunity to remedy the defect.
The further extension sought
[23] As I have said, it did appear from the applicants’ undisputed explanation for the
delay caused by amendments requiring public participation and, importantly,
supported by the Commission, that the extension sought by the applicants was
reasonable and justified. This view should not be mistaken for tolerance of
6 Id.
7 Acting Speaker of the National Assembly v Teddy Bear Clinic for Abused Children [2015] ZACC 16 ; 2015
(10) BCLR 1129 (CC) at para 12.
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Parliament’s tardiness o r failure to meet its deadlines. This Court was merely
cognisant of the nature of the matter, which clearly transcends the interests of the
parties, and implicates the interests of the general public and our democracy. These
factors, in my view, warrante d the grant of the extension as a just and equitable
remedy and it was in the interests of justice to make an order towards that end.
For the Applicants:
For the First Respondent:
For the Second Respondent:
For the Sixth Respondent:
For the First Amicus Curiae:
For the Second Amicus Curiae:
S Budlender SC and M de Beer
instructed by State Attorney,
Johannesburg
T Ngcukaitobi SC and K Premhid
instructed by Maphalla Mokate
Conradie Incorporated
C Brown instructed by Marais Muller
Hendricks Incorporated
A Bham SC and J Bleazard instructed
by Moeti Kanyane Incorporated
S Magardie instructed by the Legal
Resources Centre
I Goodman and E Webber instructed by
Norton Rose Fulbright South Africa
Incorporated