CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 110/19

In the matter between:

SPEAKER OF THE NATIONAL ASSEMBLY First Applicant

CHAIRPERSON: NATIONAL COUNCIL OF PROVINCES Second Applicant

and

NEW NATION MOVEMENT NPC First Respondent

CHANTAL DAWN REVELL Second Respondent

GRO Third Respondent

INDIGENOUS FIRST NATION ADVOCACY SA PBO Fourth Respondent

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Fifth Respondent

MINISTER OF HOME AFFAIRS Sixth Respondent

ELECTORAL COMMISSION OF SOUTH AFRICA Seventh Respondent

and

COUNCIL FOR THE ADVANCEMENT OF

THE SOUTH AFRICAN CONSTITUTION First Amicus Curiae

ORGANISATION AGAINST TAX ABUSE Second Amicus Curiae

Neutral citation: Speaker of the National Assembly and Another v New Nation
Movement NPC and Others [2022] ZACC 24
Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ

Judgment: Unterhalter AJ (unanimous)

Order issued on: 10 June 2022

Reasons issued on: 29 June 2022

Summary: Suspended declaration of invalidity — urgent application for

extension of a suspension of invalidity — avoid last-minute
applications for extension

Interests of justice overarching factor — extension granted

REASONS FOR ORDER

UNTERHALTER AJ (Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,

Mlambo AJ, Theron J and Tshiqi J concurring):

Introduction

[1] This application follows upon this Court’s decision in

New Nation Movement II. 1 On 11 June 2020, this Court in New Nation Movement II
held that the Electoral Act 2 is unconstitutional to the extent that it requires that adult
citizens may be elected to the National Assembly and Provincial Legislatures only

1
New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11; 2020 (6) SA 257
(CC); 2020 (8) BCLR 950 (CC). I refer to the case as New Nation Movement II in light of the earlier judgment
in New Nation Movement NPC v President of the Republic of South Africa [2019] ZACC 27; 2019 JOL 45026
(CC); 2019 (9) BCLR 1104 (CC) where the parties were requested to address this Court only on the question of
urgency in respect of an urgent application for direct leave to appeal to this Court. There, again, the central
question was whether it is constitutionally permissible to prohibit eligible South Africans from standing for
election to the National Assembly and Provincial Legislatures other than through party lists. That case is
New Nation Movement I.
2
73 of 1998.

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 UNTERHALTER AJ

through their membership of political parties. 3 The order granted in New Nation
Movement II shall henceforth be referred to as “the order”.

[2] The declaration of constitutional invalidity was suspended for a period of

24 months to afford Parliament the opportunity to correct the defect. The period of
suspension expired on 10 June 2022.

[3] On Friday, 10 June 2022, this Court made the following order:

1. Condonation is granted for the late filing of the first and second
respondents’ answering affidavits.
2. Condonation for the late filing of the first and second respondents’
counter-applications is refused, and those counter-applications will not
be entertained by this Court.
3. The declaration of invalidity in paragraph 5 of the order of this Court in
New Nation Movement NPC and Others v President of The Republic of
South Africa and Others (CCT 110/19) [2020] ZACC 11; 2020 (6) SA
257 (CC); 2020 (8) BCLR 950 (CC) is further suspended from
10 June 2022 to 10 December 2022.
4. No order as to costs is made.
5. Reasons for this order shall be given at a later date.

3
The full order in New Nation Movement II above n 1 reads:
“1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the High Court of South Africa, Western Cape Division, Cape Town is
set aside.
4. It is declared that the Electoral Act 73 of 1998 is unconstitutional to the extent that it
requires that adult citizens may be elected to the National Assembly and
Provincial Legislatures only through their membership of political parties.
5. The declaration of unconstitutionality referred to in paragraph 4 is prospective with
effect from the date of this order, but its operation is suspended for 24 months to
afford Parliament an opportunity to remedy the defect giving rise to the
unconstitutionality.
6. The Minister of Home Affairs must pay the applicants’ costs in the High Court and
this Court, such costs to include the costs of two counsel.”

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[4] Paragraph 5 of the order stated that reasons would be given at a later date.
These are the reasons.

Application for extension

[5] On 26 April 2022, approximately seven weeks before the expiry of the
suspension period, the applicants, the Speaker of the National Assembly and the
Chairperson: National Council of Provinces (Parliament), approached this Court
seeking an extension of the suspension period for another six months until
10 December 2022. In the alternative, Parliament sought an interim extension whilst
this Court considered and determined whether the extension should be granted. The
application was brought in the ordinary course.

[6] The application was opposed by the first and second respondents, New Nation
Movement NPC (New Nation) and Ms Chantal Dawn Revell. The sixth and seventh
respondents, the Minister of Home Affairs (Minister) and the Electoral Commission of
South Africa (Commission) support the application, provided that the extension period
sought does not exceed six months. Additionally, the Commission and the first
amicus curiae, the Council for the Advancement of the South African Constitution,
filed notices to abide.

[7] This matter was determined without oral argument. On 11 May 2022, the
parties were directed by this Court to file submissions in which they were to address:
(a) the urgency of the application; (b) steps taken by the Minister to give effect to
this Court’s order; (c) the reasons why the Minister had failed to file an application for
extension of the period of suspension; (d) any prejudice that may be suffered in
granting the extension sought; and (e) the prospects of the Electoral Amendment Bill 4
(Bill) passing into law during the extended period of suspension. Written submissions

4
[B1-2022].

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were received from Parliament, New Nation, Ms Revell, the Minister and the
Commission.

[8] In terms of the directions, the applicants were to file their written submissions
by 18 May 2022 and the respondents were to file their submissions by 25 May 2022.
On 25 May 2022, approximately 14 days after expiry of the notice period, 5
New Nation and Ms Revell filed notices to oppose. New Nation and Ms Revell
complied with this Court’s directive to file written submissions by 25 May 2022;
however they filed counter-applications to the extension application on 3 June 2022,
less than five court days before the expiry of the suspension period.

[9] The issue to be determined is whether the application for an extension should
be granted, having regard to the principles relating to applications of this nature and
the terms of the order in New Nation Movement II.

Counter-applications

First respondent

[10] As already indicated, on 3 June 2022, New Nation filed a counter-application

against the extension application. This application was accompanied by a
condonation application.

[11] New Nation submits that the reasons for its late filing of the
counter-application and answering affidavit in the extension application (principal
application) are that its directors reside in different provinces and its legal team was
not immediately available for consultation. Additionally, the counter-application had
5
Parliament’s notice of motion stipulated that any party wishing to oppose the relief sought, must file a notice
of opposition within five days of receipt of the application and file an answering affidavit within 15 days of
filing the notice to oppose. This accords with rule 11(1)(b) of this Court’s rules which states that—
“[an] application shall be brought on notice of motion . . . and shall set forth a day, not less
than five days after service thereof on the respondent, on or before which such respondent is
required to notify the applicant in writing whether he or she intends to oppose such
application.” (Emphasis added.)

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 UNTERHALTER AJ

to be prepared having considered the written submissions filed by the applicants and
the other respondents in the principal application. For these reasons, New Nation
submits, this Court should grant condonation for the late filing of the
counter-application and its answering affidavit in the principal application.

[12] In summary, New Nation seeks the following relief from this Court:

(a) A declaration that Parliament and the Minister failed to comply with the
order of 11 June 2020.
(b) If this Court grants the extension sought, the parties and amici be
directed to file further affidavits and written submissions on an
appropriate reading-in order to be made in respect of the Electoral Act to
cure the constitutional invalidity. This order will be suspended and shall
only take effect if Parliament fails to amend the Electoral Act by the
extended suspension period.
(c) Additionally, if this Court grants the extension, Parliament and
the Minister must be directed to file monthly reports on affidavit setting
out, amongst others, how they plan to ensure that the Bill is passed by
10 December 2022. If there is any material change to Parliament’s
estimate that the Bill will be passed by 10 December 2022, Parliament
and the Minister are directed to immediately report this to this Court and
all the parties.

[13] New Nation submits that Parliament has not shown why it is necessary to
extend the suspension period. It contends that Parliament has given a vague account
of its failure to comply with the order and abdicated its responsibilities to the
Department of Home Affairs (Department). Furthermore, Parliament cannot blame
the Minister because this Court directed Parliament, not the Minister, to cure the
Electoral Act’s unconstitutionality.

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[14] New Nation contends that Parliament and the Executive are beneficiaries of the
“old system” and they are now charged with removing an electoral system that
benefitted them. New Nation implies that this might also explain the delay and why
this Court’s intervention is required.

Second respondent

[15] Ms Revell in large measure seeks the same relief from this Court as that sought
by New Nation. However, she also seeks additional relief, set out below.

[16] Regarding condonation, Ms Revell says that she required additional time to file
the counter-application and answering affidavit.

[17] Ms Revell submits that the Minister, when dealing with the Bill, departed from
standard practices for passing legislation and, instead, at the eleventh hour, decided to
brief a team of advocates to produce a draft bill. She says that the advocate heading
this team was previously appointed to oppose her application to stand for election as
an independent candidate. Accordingly, the appointment of this particular advocate is
of concern to her.

[18] Ms Revell further avers that this team of advocates were instructed to draft a
bill based on the report of the Ministerial Advisory Committee (MAC). However, the
Bill they produced does not create a constituency based system and is not an accurate
reflection of the minimalistic option proposed by the minority in the MAC. Ms Revell
claims that the Bill was produced within a period of only five weeks, despite the
complex nature of the legislation. Thus, she submits, it is fair to draw the inference
that the Bill was drafted in a rushed manner by a team that should not have been
appointed to draft the Bill in the first place.

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[19] Ms Revell contends further that, from the Cabinet minutes dated
24 November 2021, it is clear that the Executive did not take a decision regarding
which specific opinion (the majority or minority position) in the MAC report it
preferred. The entire report was simply sent to Parliament for it to decide. This, she
concludes, illustrates that there was insufficient time for members of Cabinet to apply
their minds to the report.

[20] Ms Revell submits that the Bill is not constitutionally compliant because it may
result in independent candidates requiring almost double the number of votes in order
to secure a seat in Parliament compared to the votes that will be required by
candidates from political parties. This constitutes a violation of the right to dignity.
Furthermore, Ms Revell says the Bill leaves it to the Commission to determine
pre-conditions, such as a monetary deposit and supporting signatories. This will
disadvantage candidates with limited funds and it is mostly women and poor people
who will be impacted by such pre-conditions. These issues are raised by Ms Revell
not for this Court to make a determination, but in the hope that solutions can be found
so that the Bill is not found to be unconstitutional at a later stage.

[21] Additionally, Ms Revell says that the public participation process followed to
date is fundamentally flawed. She submits that the public has not been given an
opportunity to comment on the work done by the MAC, to express their views on the
desirability of the Lekota Bill (this Bill envisages a constituency-based system) or to
engage with Parliament in respect of other possible aspects of electoral reform.
Ms Revell seeks a declaration that the public participation process was inadequate,
flawed and not constitutionally compliant.

[22] Finally, Ms Revell submits that this Court should call upon the parties to
engage in urgent mediation to determine whether the parties can reach consensus on
the best way forward. She opines that since the introduction of the new rule 41A of

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the Uniform Rules of Court, 6 mediation has become more prevalent in resolving
conflict.

Condonation: The first and second respondents

[23] The standard for considering an application for condonation is the interests of
justice. Whether it is in the interests of justice to grant condonation depends on the
facts and circumstances of each case. Factors that are relevant to this enquiry include
the nature of the relief sought, the extent and cause of the delay, the effect of the delay
on the administration of justice and other litigants, the reasonableness of the
explanation for the delay and the prospects of success. 7

[24] In this matter, the issue to be decided is whether the period of suspension
should be extended to allow Parliament additional time to amend the Electoral Act
and cure its constitutional invalidity. The importance of this issue cannot be over
emphasised. It relates to an amendment of the Electoral Act to allow independent
candidates to stand for elections.

[25] The first and second respondents, New Nation and Ms Revell, did not provide
any reasons why they filed notices to oppose approximately a month after the
extension application was filed in this Court. Additionally, being well aware of the
looming deadline of 10 June 2022, New Nation and Ms Revell only filed their
counter-applications on 3 June 2022. The reason for this was that sufficient time was
required to consider the extension application and, in the case of New Nation, the
location of its directors and the availability of its legal team. These reasons fall short
of the requirement that a reasonable explanation must be given for the delay. 8

6
This rule regulates mediation as a dispute resolution mechanism.
7
Van Wyk v Unitas Hospital [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) at paras 20 and
22, and Brummer v Gorfil Brothers Investments (Pty) Ltd [2000] ZACC 3; 2000 (2) SA 837 (CC); 2000 (5)
BCLR 465 (CC) at para 3.
8
Van Wyk id at para 22.

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[26] There are further considerations that are relevant to the grant of condonation.
New Nation and Ms Revell were the applicants in New Nation Movement II and
therefore have a clear interest in the extension application. The basis of their
opposition to the extension application may be of assistance to this Court in deciding
the application. The grant of condonation would not prejudice Parliament, the
Minister or the Commission. Instead, it would permit this Court to consider an
opposing position on a matter of considerable public importance. Accordingly,
this Court grants condonation for the late filing of the notices to oppose and answering
affidavits.

[27] However, the counter-applications of New Nation and Ms Revell stand on a

different footing. They have failed to provide a reasonable explanation for the late
filing of the counter-applications. The delayed launch of the counter-applications
would not have allowed Parliament, the Minister and the Commission a fair
opportunity to respond, given the deadline of 10 June 2022. For the most part, the
remedial relief sought in the counter-applications may, in any event, be considered by
this Court in its determination of the principal application and the just and equitable
relief that is warranted. Ms Revell’s concern to prevent what she apprehends may
cause the legislation, when passed, to be unconstitutional will no doubt have been
noted by Parliament. But that apprehension does not found a basis for us to entertain
her counter-application at the eleventh hour. In the circumstances, condonation for
the late filing of the counter-applications is refused, and those applications will not be
entertained.

Submissions in this Court

Applicants’ submissions

Steps taken by Parliament

[28] Parliament submits that the legislative process involves both the Legislature
and the Executive and that the order did not specify a date for the Executive to
introduce the Bill in Parliament, to ensure that Parliament had sufficient time to

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deliberate on the Bill, and to facilitate adequate public participation. Parliament

contends that on the day that judgment was handed down in New Nation Movement II,
it scheduled a meeting for 25 June 2020, inviting all relevant role players, including
the Minister and the Commission, to develop a programme of action to give effect to
the order. During this time, the Portfolio Committee of Home Affairs was instructed
by the Minister that the Bill had to be introduced expeditiously, and it was agreed that
the Bill would need to be introduced by 10 March 2021 to ensure compliance with the
order.

[29] According to Parliament, it has not been lethargic in giving effect to the order.
The measures it has taken include numerous meetings held by the
Portfolio Committee between 2020 and 2021, a comparative study that was conducted
in respect of different electoral systems, and a determination of additional legislation
that would also require amendment as a result of an amendment to the Electoral Act.

[30] Parliament submits that when the Minister failed to introduce the Bill
according to the agreed timetable, letters were sent to the Minister in January 2021,
August 2021, September 2021 and November 2021 requesting an urgent indication as
to when the Bill would be introduced. The Minister failed to respond.

[31] On 10 November 2021, Parliament sent a letter to the Department of Home

Affairs enquiring whether the Department would be making an application for an
extension of the suspension period, as it was well placed to advise this Court
regarding the measures taken to give effect to the order. No response was
forthcoming. On 21 November 2021, it was decided that Parliament had no option but
to await the Executive’s introduction of the Bill.

[32] Parliament recounts that it was only when the Bill was introduced by
the Minister before the National Assembly that it was in a position to assume control
over the passage of the Bill, whilst ensuring adequate public participation. When

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the Minister did not file an application to extend the suspension period, on
23 February 2022, it instructed the state attorney to file an application. Due to internal
processes, the application could only be filed on 26 April 2022.

Response to this Court’s directives

[33] In response to this Court’s directives, 9 Parliament submits that, while this
matter is indeed urgent, as a result of this Court’s decision in AParty, 10 where
the Court held that it is undesirable for issues of importance and complexity to be
determined in haste, it brought the application in the ordinary course.

[34] Parliament contends that if the extension is not granted immediately, it would
be unable to obtain redress in due course because it would then not have complied
with the order. Thus, it is in the interests of justice to grant the relief sought, more
especially since any urgency arising from this matter was not created by Parliament,
and this Court may of its own accord decide to deal with an application on the basis of
urgency.

[35] In respect of the prejudice that may be suffered in granting the extension
sought, Parliament submits that because the next elections will take place in 2024, no
prejudice will be suffered by voters, those who intend to stand for elections or the
Commission. On the other hand, so Parliament contends, if the extension is not
granted, Parliament will not be able to comply with the order notwithstanding that it is
not responsible for the delays. In this respect, Parliament also stresses the importance
of complying with court orders as held by this Court in Nyathi. 11

9
See [7].
10
AParty v Minister of Home Affairs; Moloko v Minister of Home Affairs [2009] ZACC 4; 2009 (3) SA
649 (CC); 2009 (6) BCLR 611 (CC) at paras 78-9.
11
Nyathi v MEC for Department of Health, Gauteng [2008] ZACC 8; 2008 (5) SA 94 (CC); 2008 (9) BCLR
865 (CC) at para 118.

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[36] As regards the prospects of passing the Bill during the extended period of
suspension, Parliament filed a supplementary affidavit setting out timelines to ensure
that the Bill will be passed within the extended period of suspension. In terms of
these timelines, on 14 June 2022, the Portfolio Committee was scheduled to consider
and adopt the report on the Bill, which will be tabled in the National Assembly.
Thereafter, the debate and second reading of the Bill in the National Assembly must
be scheduled. If the Bill is adopted by the National Assembly, it will be sent to the
National Council of Provinces where it will follow a similar process. It is estimated
that the National Council of Provinces will require approximately eight weeks to pass
the Bill. The Select Committee on Justice and Security will facilitate public
participation in the Bill and thereafter it will table its report before the
National Council of Provinces.

[37] Parliament estimates that the Bill will be sent to the President by
September 2022. Parliament submits that if the President raises any concerns
regarding the constitutionality of the Bill, there will still be sufficient time to refer the
Bill back to Parliament for the concerns to be considered.

First respondent’s submissions

[38] New Nation opposes the relief sought.

[39] Relying on this Court’s decision in Ex parte Minister of Social Development,12

New Nation contends that Parliament has embarked upon a “blame game” to excuse
its failure to comply with the order. In Ex parte Minister of Social Development,
this Court held that government has an obligation to avoid last-minute applications to
extend a period of suspension. 13 New Nation takes the position that when the parties
were in this Court in New Nation Movement II, Parliament and the Minister should

12
Ex parte Minister of Social Development [2006] ZACC 3; 2006 (4) SA 309 (CC); 2006 (5) BCLR 604 (CC).
13
Id at para 52.

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have indicated the amount of time required to correct the constitutional invalidity.
However, both Parliament and the Minister failed to do so.

[40] New Nation submits that in terms of section 73 of the Constitution, any
member or committee of the National Assembly may introduce a bill. 14 Therefore,
there is no constitutional reason why Parliament had to wait for the Executive to
introduce an amendment to the Electoral Act. Further, this Court’s power to extend a
period of suspension must be exercised sparingly, as was held in Teddy Bear Clinic. 15
New Nation contends that Parliament’s eleventh-hour application creates doubt as to
the successful completion of the amendment process in time for the elections in 2024.
New Nation reminds this Court of Electoral Commission, 16 where this Court had to
decide a last-minute application shortly before the local government elections. It
contends that in the current circumstances, this Court will be faced with the likelihood
that the next elections will proceed on the “old system” and exclude independent
candidates despite the order of constitutional invalidity.

[41] New Nation seeks the following relief from this Court:

(a) A declaration that Parliament and the Minister failed in the execution of
their constitutional duty to give effect to the right of
independent candidates to stand in the national election.
(b) If this Court grants the extension sought, it should either order a
reading-in that would take effect if Parliament failed to meet an
extended deadline or issue a supervisory order to keep “a monitoring
eye” over the legislative process.

14
Section 73(2) states “[o]nly a Cabinet member or a Deputy Minister, or a member or committee of the
National Assembly, may introduce a Bill in the Assembly.” (Emphasis added.)
15
Acting Speaker of the National Assembly v Teddy Bear Clinic for Abused Children [2015] ZACC 16; 2015
(10) BCLR 1129 (CC) at para 12.
16
Electoral Commission v Minister of Cooperative Governance and Traditional Affairs [2021] ZACC 29; 2021
JDR 2101 (CC); 2022 (5) BCLR 571 (CC).

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[42] In respect of the reading-in remedy, New Nation submits that this Court should
direct the parties to file affidavits regarding the appropriate reading-in order in the
event that the Bill is not enacted before the expiration of the extended suspension
period. Additionally, so New Nation submits, this Court should direct the parties to
file written submissions and set down the application for a hearing to determine the
appropriate reading-in order.

[43] In respect of the supervisory remedy, New Nation submits that if this Court
grants an extension of the suspension period, it should direct Parliament and
the Minister to file monthly reports stipulating how they will ensure that the Bill is
passed by 30 September 2022, the steps taken during each month and the measures to
be taken the following month, as well as the relevant timelines. Additionally, if there
is any material change to Parliament’s estimate that the Bill will be passed by
30 September 2022, Parliament and the Minister must be required to report on
affidavit immediately to this Court explaining the reasons for and the consequences of
the change.

Second respondent’s submissions

[44] Ms Revell filed submissions regarding the urgency of the application and any
prejudice that may be suffered if the extension sought was granted.

[45] Regarding urgency, Ms Revell submits that the application is urgent because all
necessary steps must be taken timeously to complete the process before the next
election. Ms Revell also submits that Parliament and the Minister created the urgency
themselves. Therefore, it would be inappropriate to grant the relief sought.

[46] Regarding any prejudice that may be suffered in granting the extension,
Ms Revell submits that her right to stand at the next election will, in all probability, be
prejudiced. She submits that the extension would result in a flawed process being
perpetuated and would be a waste of time. This might also mean that the next election
will be postponed. Ms Revell makes plain that she intends to seek relief that

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Parliament be directed to take steps to ensure public involvement in the deliberative

stage of legislative amendments.

[47] Ms Revell opines that she is not confident of the Bill passing within six months
and submits that a reasonable amount of time is required to ensure that a
constitutionally compliant process is followed.

Sixth respondent’s submissions

[48] Regarding the steps taken by the Minister to give effect to the order,
the Minister avers that on 11 February 2021, an MAC was established to identify the
extent of the legislative and policy reform required to give effect to the order. On
9 June 2021, the MAC presented a report on electoral systems reform to the Minister.
Once the Minister had considered the report, legislative drafters were appointed to
prepare the Bill. As a result of procurement delays, the external counsel appointed to
draft the Bill were only briefed on the MAC’s report on 9 October 2021. On
19 November 2021, a draft Bill was sent to Cabinet and on 29 December 2021,
the Minister introduced the Bill in terms of the Joint Rules of Parliament. Thereafter,
according to the Minister, the Bill became a matter to be dealt with by Parliament.

[49] The Minister states that prior to 29 December 2021, it was not possible to
determine whether an extension of the suspension period would be required and after
29 December 2021 it was for Parliament to seek an extension.

[50] The Minister supports Parliament’s application to extend the suspension period
and submits that no prejudice will arise because it will still be possible for the Bill to
be finalised in time for elections in 2024.

Seventh respondent’s submissions

[51] The Commission made submissions regarding the urgency of the application
and any prejudice that may be suffered in granting the extension sought.

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[52] The Commission submits that it will require approximately 18 months from
receipt of constituency boundaries to the election date in which to prepare. The
earliest possible election date is 22 May 2024, and the last constitutionally permissible
date is 14 August 2024.

[53] On urgency, the Commission submits that, considering that the suspension
period is due to expire, the application ought to be considered on an expedited basis.
The Commission further submits that this Court’s decision will impact the
Commission’s planning and time frames to give effect to the amendment.
The Commission indicates that it requires 86 days to plan the election timetable and
planning can only commence after the date of proclamation. The Commission
submits that, because this matter is of great public interest, in light of the
constitutional considerations arising as a result of the proposed amendments, this
application is manifestly urgent. The Commission relies on this Court’s decision in
Electoral Commission of South Africa 17 where this Court held that an application for
an extension “does not involve grand jurisprudence, but a practical and just exercise of
this Court’s powers in managing the Commission’s duties”. 18

[54] Regarding prejudice that may be suffered in granting the extension, the
Commission makes submissions in respect of: (a) the enactment of the Bill in its
current form; and (b) the enactment of the Bill in the event that new sub-provincial
constituencies are introduced in the final enactment.

[55] Should the Bill be enacted in its current form, a six-month extension to
10 December 2022 will not cause prejudice to the Commission and, in particular, the
public.

17
Electoral Commission of South Africa v Speaker of the National Assembly [2018] ZACC 46; 2019 (3) BCLR
289 (CC).
18
Id at para 5.

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[56] The Commission submits that if the Bill is amended to include new
sub-provincial constituencies, it would be impossible for it to implement the
provisions of the newly enacted Electoral Act in time for the 2024 elections, and
additional time would be required. The Commission indicates that in 2020, it
informed the Portfolio Committee that an electoral system with sub-provincial
constituencies needed to have been finalised in October 2021. In respect of the 2024
national and provincial elections, if the new Electoral Act includes sub-provincial
constituencies, the additional six-month extension sought would prejudice the
Commission in respect of the time frames required to give effect to the constitutional
imperative of free and fair elections.

[57] The Commission makes plain that preparations to configure the electoral
infrastructure and administration to accord with the new electoral system would
require time frames well beyond the constitutionally prescribed election date.
Additionally, the public must be educated on the new electoral system.

[58] The Commission makes no submissions on the prospects of passing the Bill
during the extended period of suspension, as it has no influence over the legislative
programme that Parliament is constitutionally obligated to implement.

Analysis

Urgency

[59] The suspension period was set to expire on 10 June 2022. After this date,
Parliament would have been in contravention of the order. Though this urgency has in
large measure been created by the dilatory conduct of the Minister and Parliament in
bringing the extension application, conduct that is to be deprecated, this Court must
nevertheless assume the burden of determining the matter on an urgent basis to avoid
Parliament’s otherwise inevitable passage into contravention. Parliament and
the Minister should not have placed this Court and the other interested parties in this

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position. But this does not detract from the accomplished fact that this matter is
urgent and must be dealt with as such.

The application for extension

[60] This Court can grant an extension pursuant to its powers to grant a just and
equitable remedy in terms of section 172(1)(b) of the Constitution. The overarching
19
consideration in exercising this power is the interests of justice. However,
this Court has stated that “extensions should be granted with great caution and ‘not be
granted simply as a matter of course or at the last minute’”. 20 There are certain factors
that must be considered in determining whether to grant an extension. They include—

(a) the sufficiency of the explanation provided for failing to comply with
the original period of suspension;
(b) the potential prejudice that is likely to follow if an extension is or is not
granted; and
(c) the prospects of curing the constitutional defects within the new
deadline or, more generally, the prospects of complying with the
deadline. 21

The power to extend the period of suspension of a declaration of invalidity should be

exercised sparingly. 22

The explanation for failing to comply with the original period of

suspension

[61] It is trite that court orders must be complied with. As this Court has previously
stated, “[i]t is imperative to the rule of law and the functioning of our constitutional

19
Minister of Justice and Correctional Services v Ramuhovhi [2019] ZACC 44; 2020 (3) BCLR 300 (CC)
(Ramuhovhi) at para 9.
20
Electoral Commission of South Africa above n 17 at para 69.
21
Teddy Bear Clinic above n 15 at para 12.
22
Ramuhovhi above n 19 at para 9.

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 UNTERHALTER AJ

democracy that court orders are respected”. 23 It has now become clear that Parliament
will not be able to comply with the order.

[62] There is much to be said for the characterisation offered by New Nation and
Ms Revell in their submissions that Parliament and the Minister are engaged upon an
exercise to blame each other and thereby shift accountability. The Minister provides
no explanation for what transpired from June 2020 to February 2021 when the MAC
was appointed. As a result, the Minister did not in fact take all reasonable measures to
give effect to the order. Parliament awaited the Minister’s introduction of the Bill.
When it was so long delayed, Parliament should have taken steps to introduce a bill,
without reliance on the Minister. This it failed to do. However, I do note the steps
taken by Parliament to comply with the order. 24 Although the order was directed to
Parliament to cure the unconstitutionality of the Electoral Act, one cannot ignore the
belated proposals by the Minister which evidently added to the delay. However,
Parliament should have done more. Having recognised the delay caused by
the Minister, Parliament could have, and indeed should have, introduced the Bill itself.
Naturally, it follows that it was also incumbent on Parliament to file an extension
application in a timeous fashion.

[63] I do not, however, agree with New Nation and Ms Revell that Parliament’s
reasons are vague. In fact, the detailed timelines and actions taken by Parliament from
June 2020 to November 2021 evidences that it sought to give effect to this Court’s
order. However, Parliament still attempts to escape accountability by alleging that it
did not introduce the Bill because it was waiting for the Minister to do so.
Compliance with this Court’s order rests with Parliament. If the Minister is dilatory,
Parliament will not be excused from its duty to meet the deadlines imposed by a court
order.

23
Id at para 12.
24
See [29].

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 UNTERHALTER AJ

[64] However, the inadequacy of Parliament’s explanation for failing to introduce

the Bill and to file the extension application in a timeous fashion are not the only
factors to consider so as to decide whether to grant the extension sought. The
overarching consideration in exercising this power is the interests of justice.
Therefore, the extension application ought to be decided, not simply on the basis of
past failures, but what might yet be done to bring about compliance and secure the
opportunity for independent candidates to offer themselves for office at the next
general election.

Potential prejudice

[65] Parliament, the Minister and the Commission have indicated that no prejudice
will arise if the six-month extension is granted, because there will still be sufficient
time to finalise the Bill in time for the elections in 2024. On the other hand, if the
extension is refused, Parliament will not be able to comply with the order.

[66] The Commission qualifies its submissions regarding the potential prejudice that
may arise. The Commission has indicated that, provided that the Bill is adopted in its
current form, it will not suffer any prejudice. However, if the Bill introduces new
sub-provincial constituencies, then the legislative process ought to have been finalised
in October 2021, so as to have allowed the Commission sufficient time to prepare for
the 2024 elections. Neither Parliament nor the Minister has indicated whether the Bill
will make provision for sub-provincial constituencies.

[67] New Nation submits that it is not confident that the Bill will be passed into law
within the additional six months. Ms Revell submits that her right to stand as an
independent candidate will, in all probability, be prejudiced. Additionally, she
submits that the public participation process has been constitutionally wanting and an
extension would result in a flawed process being followed.

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 UNTERHALTER AJ

[68] Parliament would do well to note the concerns that have been raised.
Parliament has confirmed that a six-month extension will suffice to pass the remedial
legislation into law. It gives that assurance, alive to the requirements of proper public
participation and that, on no account, may the next election take place without
independent candidates being able to offer themselves for elected office. We may
take this assurance as the basis for the extension that Parliament now seeks. But
should it fail in its efforts, within the further time afforded to it, then the more sombre
prognostications of New Nation and Ms Revell will have considerable purchase.
Parliament may then expect warranted scepticism as to its further assurances.
The Commission, as the entity responsible for planning the 2024 elections, considers,
save for one caveat, that the extension will permit of compliance. We place some
store by the Commission’s evaluation. The more dire predictions of Ms Revell are, at
this point, speculative.

[69] I note however the Commission’s estimation that if the Bill introduces new
sub-provincial constituencies, then the legislative process ought to have been finalised
in October 2021. The Commission communicated this to the Portfolio Committee last
year. Therefore, Parliament is well aware of this fact. It is not for this Court to dictate
to Parliament how it will legislate to demarcate constituencies. We proceed on the
basis that Parliament has given the assurances it has to this Court, well knowing the
position of the Commission.

The prospects of curing the constitutional defects within the new

deadline

[70] It is necessary first to assess the extent of Parliament’s compliance with the
New Nation Movement II order before determining whether there are prospects of
reaching compliance, if an extension is granted. 25

25
See Electoral Commission of South Africa above n 17 at para 72.

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 UNTERHALTER AJ

[71] I have already indicated the steps taken by Parliament in the legislative process.
Furthermore, Parliament avers that there was an extensive public participation
process, including deliberations and advice from bodies such as Parliament’s Legal
Services, the Portfolio Committee and the Department of Home Affairs. Parliament
also provided a list of the actions to be taken, and their deadlines. These actions
appear to be achievable within the extended period sought, based on Parliament’s
assurances. I am thus satisfied that, on the evidence before us, Parliament has met its
burden to show that it will be able to finalise the Bill’s legislative process by
10 December 2022.

[72] In the circumstances, it is in the interests of justice that an extension of the

period of suspension be granted.

Relief sought by the first and second respondents

[73] I now turn to deal with the relief sought by New Nation and Ms Revell, not on
the basis of their counter-applications, which we decline to entertain, but rather
because that relief falls within our remedial powers and was raised in their
submissions.

[74] This Court found in Teddy Bear Clinic I 26 that potential remedies, including
severance and reading-in, might have unintended consequences. There may be cases
in which a reading-in is warranted so as to provide Parliament with the incentive to act
promptly and to provide for a remedial outcome if Parliament does not do so. I am
unpersuaded that this is such a case. Parliament and the Commission consider the
extension adequate to permit Parliament to carry out its legislative duty. What a
reading-in should contain would require extensive submissions from the parties; it
would entail careful deliberation by this Court; and all in a time period entirely
inadequate for the purpose.

26
See Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development [2013]
ZACC 35; 2014 (2) SA 168 (CC); 2013 (12) BCLR 1429 (CC) at para 108. This was reiterated by this Court in
Teddy Bear Clinic above n 15 at para 18.

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 UNTERHALTER AJ

[75] New Nation and Ms Revell contend that if this Court agrees with them
regarding the reading-in remedy, it should direct the parties to file written submissions
and set the application down for a hearing as to an appropriate reading-in order. This
relief is not warranted in this case at this point of the Parliamentary process.

[76] Parliament’s description of the research and actions undertaken to amend the
Electoral Act indicate just how policy-laden the legislative choices that Parliament
must make are. It is a process that requires not just the parties that are before us to
provide submissions, but also to allow other interested parties and the public to have
their say. Furthermore, the amendments to the Electoral Act may also require
amendments to other legislation. In these circumstances, a reading-in is not, at
present, a warranted remedy.

[77] New Nation and Ms Revell also seek supervisory relief from this Court. If
this Court grants the extension, they seek an order directing Parliament to file monthly
reports on the legislative process.

[78] This Court’s power to grant mandatory relief includes the power, where it is
appropriate, to exercise supervisory jurisdiction to ensure that its orders are
implemented. 27 Supervisory orders of this kind should not become a routine part of
this Court’s exercise of its remedial powers. Such orders may in particular cases be
necessary. But they add to the significant burdens this Court already carries. In this
case, Parliament has indicated, in detail, the steps it has taken to give effect to the
order and those steps it plans to take. Although Parliament is not free of blame, it has
not acted in disregard of the order. It needed to do more, and there is more to be done.
But there is reason to think it will do so. A supervisory order is not, on balance,
warranted in these circumstances.

27
Minister of Health v Treatment Action Campaign [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR
103 (CC) at para 104.

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 UNTERHALTER AJ

[79] I also do not see the need to declare that Parliament and the Minister have
failed to comply with the order granted in New Nation Movement II. Parliament has
not been able to comply within the time permitted by our order. To declare that to be
so would serve no purpose. The application to extend the period of suspension is to
save Parliament from breaching our order after 10 June 2020. And since that
extension should, in my view, be granted, there is no failure of compliance for us yet
to declare.

Costs

[80] Ms Revell asks this Court to order Parliament, alternatively the Minister to pay
the costs of the principal application and her counter-application. Ms Revell has
brought matters of importance to the attention of this Court, but in light of the
assessment we make of the principal application and the fate of her
counter-application, it is appropriate that no order is made as to costs.

Order

[81] In the result, the order set out in paragraph 3 was then made on Friday,
10 June 2022.

25
For the Applicants: N Maenetje SC and M Vassen
instructed by Walkers Attorneys

For the First Respondent: T Ngcukaitobi SC, J Mitchell and

K Premhid instructed by Maphalla
Mokate Conradie Incorporated

For the Second Respondent: A Nelson SC and C Brown instructed

by Marais Muller Hendricks
Incorporated

For the Sixth Respondent: State Attorney, Cape Town

For the Seventh Respondent: L Gcabashe SC and R Molefe

instructed by Moeti Kanyane
Incorporated