JUDGMENT
MADLANGA J (Cameron J, Jafta J, Khampepe J, Mathopo AJ, Mhlantla J, Theron J
and Victor AJ concurring):
Introduction
This is an application lodged on an urgent basis on 18 April 2019. The applicants
were seeking leave to appeal directly to this Court against a judgment of the High Court
of South Africa, Western Cape Division, Cape Town. This Court heard argument only
on the question of urgency on 2 May 2019. On that day it concluded that the matter
lacked urgency and postponed it for hearing in the ordinary course on 15 August 2019.1
What is now before us is the application for leave to appeal. It concerns the
question whether, to the extent that it allows individuals to be elected to the
National Assembly and Provincial Legislatures only through membership of political
parties, the Electoral Act2 is constitutional. Put differently, does this channelling to
membership of political parties infringe certain rights enjoyed under the Bill of Rights
by individuals or, more specifically, would-be independent candidates? More on those
rights shortly. In addition to this broad challenge, the applicants seek the invalidation
of section 57A of, and Schedule 1A to, the Electoral Act. Section 57A provides that
Schedule 1A applies in general to National Assembly and Provincial Legislature
elections. Schedule 1A provides for a party proportional representation system which
is achieved through party lists.
1
New Nation Movement NPC v President of the Republic of South Africa [2019] ZACC 27; 2019 (9) BCLR 1104
(CC).
2
73 of 1998.
3