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NNM: Reaction to Judge Desai's ruling on the matter of Independent Candidates standing for public office

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NNM: Reaction to Judge Desai's ruling on the matter of Independent Candidates standing for public office

NNM: Reaction to Judge Desai's ruling on the matter of Independent Candidates standing for public office

18th April 2019

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/ MEDIA STATEMENT / The content on this page is not written by Polity.org.za, but is supplied by third parties. This content does not constitute news reporting by Polity.org.za.

Judge Desai handed down his judgment on the New Nation Movement on the 17th April 2019. The New Nation Movement is disappointed with the judgment on this case and would like make note of the following:

·         We were deeply disappointed that Judge Desai, after postponing hearing this matter on the 7th March to the 27th March he took a further three weeks to give a ruling on this case; which in our view is poor and didn’t require the amount of time he took.
·         We believe this was deliberate in ensuring there is not enough time for New Nation Movement to appeal this matter with the Constitutional Court
·         We are also disappointed that the Judge does not accurately share the history of this matter and portrays the New Nation Movement and other applicants as if they came rushing to the courts last minute, seeking relief that, he “thinks would cause substantial distress and uncertainty in relation to the upcoming election”
·         This is gross misrepresentation, as the New Nation Movement made the urgent application in court on the 17th September 2019 as a last resort. The decision came after a number of attempts to engage with Respondents (i.e President, Minister of Home Affairs and Speaker of Parliament and the IEC) by NNM and others had failed over a period of time.
·         This case would have been heard in October/ November 2018 if the court treated this as an urgent matter. This would have allowed sufficient time for the 2019 Elections to be prepared with outcomes of this case in mind.  The actions of the Judge in this matter, leaves us with reason to believe he was intentional in delaying hearing this case.

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·         We are also disturbed how the Judge Desai made comments that sought to undermine the Second Applicant, Chantal Dawn Revell, Princess of the Korana Royal Household. This approach is often used to silence the voices of the marginalized, the vulnerable and the poor as people who have no right to speak out against injustice.
 
Background
·         The 1994 Elections and 1999 were held under the electoral system prescribed by the 1993 Interim Constitution transitional model. This electoral system needed new legislation post 1994 to bring provisions of the electoral act in line with the final constitution that was only adopted in 1996.
·         In 2002 An Electoral Task team led by Dr. Van Zyl Slabbert was commissioned to review this and make recommendation, the view of the majority of the members of the task team was that “ it would be worthwhile to make legislative provisions for an electoral system that can evolve towards a larger multiparty system with a compensatory national list”. It was further recommended that the 2004 Election be carried out on the current system with view to begin implementation of some of the recommendations post 2004 elections.
·         One of the reasons this system was adopted as opposed to the constituency based systems was because many leaders who had either being exiled or imprisoned were not known in their constituencies, and as a result would not have stood a chance of winning elections at that time. However, we believe that since then the country’s democracy has matured and the information age has brought the nation closer together than where we were in 1994.
·         Today --- 15 years since 2004 elections, there has been no movement to implement some of the recommendations made or review with the aim to bring a reform.
·         In November 2017 former President Kgalema Motlanthe released Report of the High Level Panel on the assessment of Key Legislation and the Acceleration of Fundamental Change. The following was their recommendation from the report on the assessment of the Electoral Act.
The Panel recommends that Parliament should amend the Electoral Act to provide for an electoral system that makes Members of Parliament accountable to defined constituencies on a proportional representation and constituency system for national elections.
 
·         The levels of corruption and state capture cannot be divorced from the current Party Political Systems. We have heard enough stories of ministers who are MPs, SOE executives and Public Officials were removed from their positions because they refused to take instructions from political bosses.

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One of the reasons for dismissing our application raised by Judge Desai is that he believes that the current electoral system cannot be called unconstitutional because the system is a decision of Parliament and “once Parliament has made the choice, that choice is not unconstitutional”.

·         While this is technically correct, we have to point out that our Parliament is currently dysfunctional and as a result has not been effective in its role of oversight.  The constitutional court has ruled that Parliament failed to hold the Executive accountable in the Nkanhla case. Other examples of how dysfunctional Parliament were exhibited when Parliament failed to remove former President Zuma, after eight motions of no confidence.
·         The failed motions of no confidence against the President exposed just how our members of Parliament despite taking an oath of office to serve the nation, remain loyal to their political parties and not the nation as well as the pressure that is placed by political parties on the MPs to tow party lines.
·         The Zondo Commission inquiry into State Capture currently underway is exposing the depth of corruption under that has gone unchallenged by Parliament, it is clear if Parliament was effective in exercising oversight some of the corruption would have been exposed earlier.
·          We also saw how ruling party MPs who were vocal about corruption have been treated by political bosses involved in corruption. Example. Makhosi Khoza, Vrytjie Mentor.
·         COPE President Mosiua Lekota, proposed a private members bills in Parliament after hearing about this case. His hope was for Parliament to make necessary legislative amendments to respond to the voices of those feeling marginalized by the current political system.
·         We therefore are of the opinion that Political Parties in Parliament are deliberate in ignoring and delaying the issues of Electoral Reform because the current system rewards patronage. This is despite the fact that Electoral Reform was flagged in 2017 by the Motlanthe report. Member of Parliament made a mockery of this issue when it was raised again by Mr. Lekota in parliament.

This reason we believe would be close to saying that when parliament excluded those who wanted to stand for public office on base of their race in 1989, they should have accepted this fact as it was a decision of parliament, in line with a constitution.

Another reason his dismissal of our case is because he says our application was based entirely on the statement in the My Vote Counts case, which he says is Obiter Dictum and therefore not binding. He compares the My Vote Counts case with the Ramakatsa and Others v ANC where another Obiter statement was made which in his opinion is “opposite” to what was said in the case of My Vote Counts.

o   We are of the opinion that the context of Ramakatsa is totally different from the application we brought before the Judge.  The Constitutional Court statement on Ramakatsa case was made to highlight the fact that members of political parties must not be excluded from participating in political party activities.
o   We are however comforted by the fact that Ramakatsa and Others v ANC were successful in their appeal at the Constitutional.

Next Steps

·         Our legal team will file an urgent application to appeal the judgment the Constitutional Court, by close of business today.
·         Our hope is that the ConCourt will give direction on how the rights of individuals who want to stand for Public outside political can be realized, without further delays because justice delayed is justice denied.
·         We are of the view that by ignoring the merits of our case,  and proceeding to prepare for elections with this case pending the President and IEC Commissioner are running the risk that elections may be set aside on the basis that they were not free and fair.
·         It would therefore be in the best interest of the nation to consider postponing the elections by three months to allow the case to be heard and if relief is granted a process to be implemented for Independent Candidates to stand for public office.
·         While Judge Desai feels that the relief that we are seeking will “cause substantial distress and uncertainty in relation to the upcoming elections”, we want to point out that the current distress that the people of South Africa are experiencing as result of the current party political system that has heighted corruption, maladministration and poor delivery of basic services (seen in constant protest across the nation) --- cannot be given another five years to continue. It is enough!
 
 

Issued by New Nation Movement

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