“The constitutional crisis is far greater than we think,” said advocate Alan Nelson, who is representing the New Nation Movement, a “non-partisan” organisation founded in 2017. South Africa has many issues such as unemployment, gender-based violence and corruption. So what happens when you want to be a public representative that fights these issues in the National Assembly or provincial legislature without being affiliated to a political party?

Well, the New Nation Movement is hoping that can become reality — and before South Africa heads to elections on 8 May.

But Judge Siraj Desai told the court last week that he was concerned that the “major political parties” had been absent at a mediation meeting that had discussed a case that affected them. Only Cope leader Mosiuoa Lekota and a few “obscure parties” were present at the pre-trial meeting, which had been convened by the New Nation Movement.

Nelson told the court that all political parties had been invited and had “received the full papers”.

However, Judge Desai was adamant that a case like this was in the “direct and substantial interest” of every political party represented in the National Assembly. Therefore, they needed to be included.

As it stands, the Electoral Act, Act 73 of 1988 only permits citizens to be elected to the National Assembly and the provincial legislatures if they are already in a party.

The application to the Western Cape High Court follows a 2018 Constitutional Court judgment in which Chief Justice Mogoeng Mogoeng wrote that “the right to stand for public office is tied up to the ‘right to vote in elections for any legislative body’ that is constitutionally established. This meant that every adult citizen may in terms of the Constitution stand as an independent candidate to be elected to municipalities, provincial legislatures and National Assembly.”

Nelson argued before the court that registering a political party was “a huge exercise”, and that one person cannot call themselves a party. Therefore, the Electoral Act excluded independent candidates from exercising their constitutional right.

This, according to Nelson, was a “constitutional crisis” that needed to be addressed urgently.

Chantal Revell is the second applicant. Revell is a Princess of the Korona Royal Household, which is one of the five official Royal Priesthoods of the Khoi and San First Nations. In her founding affidavit, she argued that politicians often ignore the plight of the people of the Indigenous First Nation Advocacy South Africa, a non-profit organisation that advocates for the rights of Khoi and San people.

“Even though there are many women in Parliament, none of them speaks for the First Nation People,” said Revell.

Revell has lost confidence in the ability of politicians and political parties to cater to the needs of women and people of the First Nation. This is why she would like the opportunity to stand to be elected without joining a political party.

Proceedings were postponed last Thursday, with Desai ordering Nelson to approach political parties to find out if they wanted to be part of the proceedings. DM

The matter has been postponed to 27 March 2019.