Speaker of the National Assembly and Another v New Nation Movement NPC and Others

This application followed the Constitutional Court's decision in New Nation Movement II (11 June 2020), where the Court declared the Electoral Act 73 of 1998 unconstitutional to the extent that it required adult citizens to be elected to the National Assembly and Provincial Legislatures only through membership of political parties. The declaration of invalidity was suspended for 24 months to allow Parliament to remedy the defect, with the suspension period expiring on 10 June 2022. On 26 April 2022, approximately seven weeks before expiry, the Speaker of the National Assembly and Chairperson of the National Council of Provinces applied for a six-month extension of the suspension period until 10 December 2022. The applicants explained that the Minister of Home Affairs was responsible for introducing remedial legislation but had delayed doing so. An Electoral Amendment Bill was eventually introduced on 29 December 2021. Parliament argued it had taken various steps including meetings, comparative studies, and repeatedly writing to the Minister requesting urgent action, but had been unable to complete the legislative process in time due to the Minister's delays. The application was opposed by New Nation Movement NPC and Ms Chantal Dawn Revell, who filed late notices to oppose and counter-applications seeking declarations of non-compliance, supervisory orders, and directions for a reading-in remedy. The Minister of Home Affairs and Electoral Commission supported the extension application.

• Whether condonation should be granted for late filing of notices to oppose and counter-applications
• Whether the extension of a suspended declaration of invalidity should be granted
• Whether the explanation for failing to comply with the original suspension period was sufficient
• What prejudice would result from granting or refusing the extension
• What were the prospects of Parliament curing the constitutional defect within the extended period
• Whether a reading-in remedy should be ordered as a contingency
• Whether supervisory orders requiring monthly reports should be issued
• Whether a declaration of non-compliance should be made against Parliament and the Minister

1. Condonation granted for late filing of first and second respondents' answering affidavits. 2. Condonation for late filing of first and second respondents' counter-applications refused, and those counter-applications not entertained. 3. The declaration of invalidity in New Nation Movement II suspended from 10 June 2022 to 10 December 2022. 4. No order as to costs. Order issued on 10 June 2022; reasons issued on 29 June 2022.

The binding legal principles established are: 1. Applications for extension of suspended declarations of invalidity must be assessed primarily on the interests of justice, considering: (a) the sufficiency of explanation for non-compliance; (b) potential prejudice from granting or refusing the extension; and (c) prospects of curing the defect within the new deadline. 2. While past failures in compliance are relevant, they are not determinative - the focus must be on what can yet be done to achieve compliance and vindicate constitutional rights. 3. Where a Court order is directed to Parliament to cure constitutional invalidity, Parliament cannot escape its obligation by waiting passively for the Executive to introduce remedial legislation, as section 73(2) of the Constitution empowers Parliament itself to introduce bills. 4. Both the Legislature and Executive share responsibility for implementing Court orders requiring legislative amendment, and neither can shift accountability to the other through a 'blame game'. 5. Extensions of suspended declarations should be granted with great caution and sparingly, not simply as a matter of course or at the last minute, to discourage dilatory conduct by government. 6. Reading-in remedies are not appropriate where the legislative choices are policy-laden, require extensive public participation, and may necessitate amendments to multiple pieces of legislation. 7. Supervisory orders requiring regular reporting should not become routine but should be reserved for cases where there are grounds to doubt compliance or where past conduct demonstrates disregard for Court orders.

The Court made several important non-binding observations: 1. Parliament would do well to note the concerns raised about public participation and should ensure the process is constitutionally compliant going forward. 2. If Parliament fails to meet the extended deadline after giving assurances to the Court, it may expect 'warranted scepticism' regarding any further assurances, and the predictions of the respondents about prejudice will have 'considerable purchase'. 3. The Court noted Parliament's awareness of the Electoral Commission's position that if new sub-provincial constituencies are introduced, the October 2021 deadline would have been necessary for timely implementation. The Court proceeds on the basis that Parliament has given its assurances knowing this position, implicitly cautioning Parliament about the consequences of introducing such constituencies at this late stage. 4. The Court observed that supervisory orders 'add to the significant burdens this Court already carries' and should not become routine, suggesting institutional concerns about over-judicialisation of the legislative process. 5. While not deciding the point, the Court indicated that in some cases a reading-in might be warranted 'to provide Parliament with the incentive to act promptly and to provide for a remedial outcome if Parliament does not do so', suggesting this remedy remains available in appropriate circumstances. 6. The Court emphasized that court orders must be complied with and that 'it is imperative to the rule of law and the functioning of our constitutional democracy that court orders are respected', reaffirming the foundational principle of compliance with judicial orders.

This case is significant in South African law as it addresses the Constitutional Court's approach to applications for extension of suspended declarations of invalidity. The judgment emphasizes that: 1. Extensions should be granted sparingly and not as a matter of course or at the last minute (following Electoral Commission of South Africa and Teddy Bear Clinic). 2. Government institutions have an obligation to avoid last-minute applications for extensions (following Ex parte Minister of Social Development). 3. The interests of justice is the overarching consideration in deciding extension applications, requiring a balance between past failures and future prospects of compliance. 4. Both the Executive and Legislature bear responsibility for implementing Court orders, and one cannot escape accountability by blaming the other. 5. Parliament has independent power under section 73(2) of the Constitution to introduce bills and should not passively wait for the Executive to do so when Court deadlines loom. 6. Reading-in remedies and supervisory orders, while available, should not be routinely ordered but reserved for appropriate cases. The case demonstrates the Court's pragmatic approach to ensuring compliance with its orders while recognizing the practical complexities of the legislative process and the need to secure the constitutional right of independent candidates to stand for election.