The application before the Western Cape High Court was brought by the New Nation Movement NPC. It wants the court to declare the Electoral Act unconstitutional.
Advocate Alan Nelson SC, the applicant’s lawyer, said the matter was sufficiently urgent.
“My instruction is, if the order can’t be made then an urgent application will be made to postpone the elections. This matter contends the mechanism used to choose government.
“We submit that independent candidates be allowed to exercise their right to stand in the elections as individuals without being part of a political party,” he said.
Nelson said the Electoral Act’s omission to regulate the position of independent candidates to stand for elections was unconstitutional.
Judge Siraj Desai expressed his concern over the impact his order may make. He also raised the short time he had to make an order.
“Will any decision I make have an impact on the current elections? This is not that simple. Making an order will require a great deal of thought and research, purely because of its impact,” he said.
Nelson said this was a watershed case in the development of democracy and could bring about peace in the country.
He said that if Judge Desai ruled in the applicant’s favour then the matter would be fast-tracked to the Constitutional Court.
If he ruled against the notion then the applicant would make an urgent application to have the May 8 elections postponed.
“We don’t want the urgent application post elections. If the application is heard after the elections and the ruling is in favour of the applicants, then the elections would be found invalid,” he said.
He added that they sought to have a joint system where proportional representation (party system) could work with independent candidates.
“There was a time in our country where we needed proportional representation, but absolute proportional representation is not all that is needed now.
“Independent candidates are needed as well,” he said.
In responding papers, the Independent Electoral Commission of South Africa said the relief sought would cause disruption and uncertainty over the upcoming elections.
Judgment will be delivered on April 17.