MADLANGA J
The Electoral Commission submitted that the system dealt with by
section 157(2)(a) is expressly one which “provides for the election of members from
lists of party candidates drawn up in a party’s order of preference”. (Emphasis added
by the Electoral Commission.) This submission is correct. And part of it is a direct
quote from section 157(2)(a).
The Electoral Commission argues further that
section 157(2)(a) is destructive of the applicants’ reliance on sections 18 and 19. These
two sections, continues the submission, are silent on whether there is a right to run for
office as an independent candidate. According to the Electoral Commission, that leaves
the Court with two competing interpretations, namely—
(a)
despite the silence, sections 18 and 19 require an electoral system that
affords independent candidates an opportunity to run for public office;
and
(b)
the sections do not deal with that issue at all: “[t]hey leave the issue of the
electoral system and whether it includes independent candidates to the
operational provisions of the Constitution”.
The Electoral Commission then submits that the applicants’ contention that
sections 18 and 19(3)(b) afford independent candidates an opportunity to run for public
office creates a fundamental, irreconcilable contradiction with section 157(2)(a). On
the respondents’ interpretation that contradiction is avoided. For that reason alone,
contends the Electoral Commission, the applicants’ interpretation must be rejected. The
Speaker – despite having filed a notice to abide – filed written submissions in response
to the supplementary directions.105 She made submissions that were to similar effect.
She urged us to interpret sections 19(3)(b) and 157(2)(a) harmoniously, which is
achievable through the respondents’ interpretation.
CASAC submitted that the Constitution permits – but does not require –
Parliament to provide for the election of independent candidates. The applicants’
contention to the contrary cannot be reconciled with section 157(2)(a), which allows an
105
As I indicated earlier, she also filed an affidavit in which she raised some arguments.
41
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