File photo: Itumeleng English/African News Agency (ANA)
File photo: Itumeleng English/African News Agency (ANA)

MPs raise qualms over ConCourt judgment on independent candidates contesting elections

By Mayibongwe Maqhina Time of article published Jun 26, 2020

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Cape Town - Strange, overreach and encroachment are some of the words used by MPs to describe the recent Constitutional Court judgment which ordered Parliament to amend the Electoral Act to allow independents to stand in the national and provincial elections.

This emerged on Thursday when the National Assembly programme committee was briefed by the parliamentary legal advisor about the recent judgment. 

The court gave Parliament 24 months to correct the defect in the Electoral Act.

Freedom Front Plus MP Corné Mulder said he found the judgment strange. "The Constitutional Court should have looked at their own judgment when they certified the constitution in 1996. The same Constitutional Court found that the constitution writers had decided that political parties should be a method in terms of which the will of the electorate should be expressed," Mulder said. He noted that Parliament has no choice but to follow the 24 month deadline ordered by the court.

ANC chief whip Pemmy Majodina echoed Mulder's sentiment that the judgment was strange. Majodina said the ball was in the court of the national legislature to amend the Electoral Act within 24 months. "That is unfair. This is a very cumbersome exercise we have to enter into as Parliament;" she said.

Majodina took issue with ballot paper to be used when independent candidates contested at a provincial and national level. What would be the prescript for one to be voted for, in the legislature or for him or her to join the national parliament? And what if this person dies, what happens on the list because there is no list of independent candidates?” Majodina asked.

She said the amendment would impact on up to six or seven legislations, and that the time granted was unfair. "While we respect the judiciary but at times judiciary overreaches." Majodina decried the national legislature being subjected to "hurry this thing and deliver proper results on time.It is an ambitious sort of a judgment," she said adding that the process would be quite involved."

Majodina's colleague Chana Pilane-Majake complained about encroachment of the judiciary in the work of Parliament.

Pilane-Majake said lately court decisions were instructing parliament even though there was no evidence of unjust laws being passed.

Deputy speaker Lechesa Tsenoli said the Constitutional Court has made a decision and that Parliament should organise itself appropriately to undertake a very complex set of processes to fulfil the requirement of the judgment.

“Any debates that we may have about issues relating to our relationship will be secondary,” Tsenoli said. He also said the national legislature should develop steps to fulfil the legislative recommendations.  "We should have begun yesterday," Tsenoli said, adding that by 2024 all ducks should be in row.

ACDP MP Steve Swart said the emphasis was on the time consuming nature of the process to be undertaken. "We will need to monitor that closely given that Parliament asked for 36 months but was given 24 months," Swart said. He also said his party supported the "strict timeline" and stated that they need to hold the executive accountable. "This is extensive policy development," Swart said.

IFP MP Narend Singh noted that there would be consequential amendments to the Political Party Funding Act. "If we allow independents now, how will they get funded because there is a funding model. All that has to come into play," Singh said.

DA chief whip Natasha Mazzone asked that legal opinion be sought for the programme committee by looking at analysis of the Political Party Funding Act together with the judgment. 

Tsenoli said presiding officers should look into the matter, working with the chief whips forum on the process to be followed.


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