Judge Dumisani Zondi, who has been recommended by the Judicial Service Commission to chair the Electoral Court, has warned of consequences if legislation is not amended to include independent candidates ahead of the 2024 general elections. This as legislation to support their contestation has not been developed.
In 2020, the Constitutional Court found that the Electoral Act was unconstitutional as it made it impossible for candidates to stand for political office without being members of political parties.
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Zondi was one of two candidates including Judge Baratang Mocumie who were interviewed for the position.
The judge who could be at the helm of the Electoral Court will have the mammoth task of ensuring compliance with the prescripts of the constitution ahead of the 2024 national elections.
Judge Zondi was recommended by the Judicial Service Commission for the position of Chairperson of the specialised court.
Zondi is currently a judge in the Supreme Court of Appeal. He has acted in the Constitutional Court where he gave a judgment in a case, which declared Section 18 of the Criminal Procedure Act unconstitutional for prescribing a 20-year limit on the prosecution of sexual offences like rape.
This removed a key barrier for victims who were sexually abused as children but who now sought justice as adults.
And should President Cyril Ramaphosa confirm the recommendation by the JSC, Zondi could be barraged with litigation as 2024 fast approaches without legislation to accommodate independent candidates.
“There is no legislation at this stage, and I don’t know what is going to happen because now, according to the high court, there must be legislation. Because I mean, the electoral act, as it stands, does not create a space independent candidates. So, even if you go ahead in 2024 and hold elections, those independent candidates will be able to challenge the results in terms of the Concourt judgment (to say) you were supposed to have amended the legislation so as to include us. So, whatever we will be doing in 2024 without getting legislation in place will be an exercise in futility.”
In 2020, the Constitutional Court gave a landmark ruling stating that the Electoral Amendment Act is unlawful as it does not allow independent candidates to contest in its current form.
However, the Constitutional Court prescribes that an election must be held within five years and 90 days after the last one.
Parliament, however, has not made significant strides in aligning itself with the ConCourt judgment.
Researcher at Judges Matter, Mbekezeli Benjamin says, “In terms of the constitution, the election must be held five years and 90 days after the last election. The last election was on the 8th of May 2019, so the last day in which the next election can be held is the 6th August 2024. That means an election has to be held on that day or any time before and what parliament now has a responsibility to do is to pass the legislation to ensure independent candidates because the Constitutional Court has said an election without independent candidates will not be constitutional.”
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Benjamin says there is pressure on parliament to finalise the legislation.
“So, what we are currently facing is parliament is under pressure to finalise the legislation, but also the IEC must make provision because what will happen if an election is held without provision for independent candidates? Then that election is likely to be unconstitutional and it is not possible for an election to be held on any other day beyond that 6th of August 2024.”
This Constitutional conundrum was posed to Zondi by EFF Leader, Julius Malema. A similar crisis arose prior to the 2021 local government elections. The Independent Electoral Commission, supported by the ANC and the DA, applied to have the municipal elections postponed, fearing that they would not be free and fair under the COVID-19 global health pandemic.
The Constitutional Court dismissed the application, ordering Cogta Minister, Dr Nkosazana Dlamini-Zuma to declare a date between October 27 and November 1st. This, in line with Section 159 looking at Municipal Councils.
With time fast running out, Zondi highlights the reprieve independent candidates can seek.
“Those who feel that whatever process that will be embarked upon will affect them negatively, they will have to bring an application in good time before 2024 and say this is what the Constitutional Court said and this hasn’t been done, direct parliament to do what you asked it to do two years ago. The option of postponing elections doesn’t exist because of the nature of the legislation. You see, Section 159 is clear. Unless, of course, parliament amends these 90 days. Will it be able to get the constitution amended well before 2024?”
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Malema, a Member of Parliament, paints a bleak picture of the prospects of independent candidates.
“So, with the Constitutional Court decision that you must have independents and in the absence of such amendments as we speak now and five years comes and 90 days and legislation is still the same as is now, it will be wrong to assume, sitting here, that there’s going to be independent candidates. It is not only about independent candidates, but there’s also a question of whether you should have constituency-based candidates or individual candidates who register on their own, and such consultations are still going on. You have got the IEC that needs a maximum of two years to prepare for election. That is what they say in terms of their timetable. All of that if you look at it, it hasn’t happened.”
As matters stand, the matter is likely to head to the Constitutional Court again as the prospects for an election that is compliant with the 2020 ConCourt ruling seem dim.
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