Electoral Act is undemocratic, ConCourt hears
The application was led by New Nation Movement and the Indigenous First Nation Advocacy South Africa as they argued that the Electoral Act was unconstitutional for barring people from standing for public office without joining political parties.
Advocate Tembeka Ngcukaitobi said the Electoral Act infringed the rights enshrined in section 19 of the Constitution, which allows people to vote and stand for public office limits citizens in exercising their rights, compelling them to do so only through being a member of a political party.
“The Electoral Act makes absolutely no provision for every citizen to exercise their political choices in a mode other than a political party and that restriction is neither justified nor reasonable in a democratic and open society,” Ngcukaitobi said.
He said it was also against international law to oblige citizens to be members of parties in order to participate in the political life of the nation.
Ngcukaitobi painstakingly pointed out that by allowing individual citizens to contest elections independently, it would encourage accountability because public representatives who belong to political parties tend to be accountable to their respective organisations rather than to citizens.
“This has already been said by this court in the secret ballot case in the context of whether or not party representatives are bound to vote according to conscience or according to party dictates. The court spoke lavishly about the implications of a party system for accountability,” Ngcukaitobi said.
The applicants argued that as they envisaged putting their Khoisan traditional leader up for public office, it forced her to join or form a party which would make her partisan and was wrong for traditional leaders.
Advocate Steven Budlender, for the IEC, said those who did not want to be political had to recuse themselves from political offices.
“You cannot be elected to political office and not push a political agenda. I could understand the position that says she does not run for Parliament or the position that she will not join the ANC or the DA, but you can’t have a position that says I am non-political and I want to run for Parliament. That is inconsistent. She must make her decision,” Budlender said.
Budlender further stated that the party system did not limit the rights of citizens.
“There can be an infinite number of political parties, 48 in the last election. The right to vote is the right to choose between those political parties and if you find one you like you vote for it and if you cannot find the one you like you spoil your ballot or form you own party,” he said.
Budlender said the purpose of Section 19 was to say that every citizen in this country may run for office, but subject to the system put in place by Parliament,” he said.
Judgment has been reserved.