File picture: Antoine de Ras.
The upcoming elections are under threat by a raging legal battle that the Constitutional Court has agreed to hear five days before voting.

Non-profit organisation the New Nation Movement (NNM) wants the court to rule that independent candidates should be allowed to run in the elections.

It contends that the constitution did not preclude independent candidates from standing for election to the National Assembly and provincial legislatures.

NNM director Bulelani Mkhohliswa cited President Cyril Ramaphosa, Parliament and the Electoral Commission of South Africa (IEC) as the respondents in papers filed at the court.

The court bid is an appeal application intended to cancel the Western Cape High Court judgment that went against the organisation last month.

Judge Siraj Desai dismissed its insistence that the constitution allowed independent candidates.

“Nowhere in the wording of the section does it expressly state that standing for office must include standing as an independent candidate as opposed to a member of a political party,” said Judge Desai.

The relief sought could derail the elections, said the judge. “Any relief granted would, I think, cause substantial distress and uncertainty in relation to the upcoming elections.”

In the papers, Mkhohliswa said that they were aware of the threat but maintained that the application was necessary to render the May 8 elections free and fair.

“I wish to stress from the outset that all of the appellants are mindful of the importance of the coming elections and that none of them have any wish to disrupt them,” he added.

“On the contrary, it is their (appellants') sincere desire to ensure that these elections take place in a manner that is free and fair, and which complies with the constitution.”

He said the people who wanted to run as independents believed the IEC could make a plan to include them in the ballot box on May 8.

“There are a number who wish to exercise their right to stand as independent candidates in the forthcoming elections,” said Mkhohliswa.

“These include (Chantal Dawn Revell) and at least 20 other South African citizens that the appellants are aware of.

“These independent candidates accept that there may be logistical constraints for this to happen before the elections take place.

“A possible solution could be for a second ballot sheet containing their details to be printed in time for the elections”

Mkhohliswa said they had exhausted various steps to “ensure that the elections are constitutionally compliant”.

This included launching an urgent application in the Western Cape High Court, where the judgment was delivered seven months later, and trying to negotiate with the IEC.

“The appellants believe that our country is now, on the eve of the elections, faced with a constitutional crisis should the elections go ahead before the issues raised herein are resolved,” said Mkhohliswa.

The respondents were yet to file opposing papers on Friday. 

Ramaphosa’s spokesperson Khusela Diko did not respond to questions sent to her on Sunday.

The Concourt hearing takes place on Friday. Judgment could be handed down before the elections.

@BonganiNkosi87