Losers Senate chance
According to the minister, it goes without saying that the delayed prosecution of the appeal was occasioned by the supervening Senate elections in 2018 that came in between the noting of the appeal and its enrolment for hearing, which the latter event never came to be.
It was her submission that the supervening event created reasonable indecisiveness on all parties concerned. “It had the inescapable legal effect of rendering the appeal between the parties academic, serving no practical purpose. 7he court would have certainly declined to hear the appeal under those circumstances. 7his is evident from the current decisions of this court on moot or academic cases,” stated the minister.
7he minister submitted that 0asilela stood to suffer no prejudice in the reinstatement of the appeal four years later, because after the High Court full bench judgment, he again declared his candidature for the 2018 Senate elections and was not nominated at all.
She argued that the hearing of the appeal would be in the interest of 0asilela too.
“If this court dismisses the appeal, he would be free to contest both parliamentary and Senate elections in succession and enjoy the benefit of the judgment a quo. (ven if the appeal were to succeed, respondent (0asilela) would certainly know the procedure and decide to stand for election to either the House of Assembly or Senate, not both,” contended the minister.
Shakantu said there appeared to be good prospects of the appeal succeeding and she firmly believed that the /earned -ustices of the High Court erred in declaring Section 5(3) of the Senate (lections Act unconstitutional as considered against Sections 20 and 84 of the Constitution.
She argued that the High Court decision was legally untenable firstly because Section 20 of the Constitution had a self-defining clause 20(3), unlike Section 2 of the (mployment Act of 1 80 which is a mere list of prohibited grounds of discrimination.
Proclaims
“7he former defines what discrimination is, while the latter does not. 7he former clearly proclaims itself an e[haustive list by definition and the latter is not e[haustive. 8ltimately, the former is not permissive of the class rule of statutory construction yet the latter is. 7herefore, the law in the Satellite Investments (Pty) /td case cuter in the judgment a quo is inapplicable and was wrongly applied to respondent¶s case,” argued the minister.
Secondly, the minister said what was seen in Section 5(3) of the Senate (lections Act was a case of differentiation rather than a case of discrimination.
“7he circumstances in the Act are different from those of the Constitution. 7he Act does not discriminate between similarly circumstanced Senate candidates, but differentiates between those who have already lost the elections race for the Assembly and those who enter the race for the first time in respect of Senate,” Shakantu argued.
/astly, the minister said there was clearly nothing in Section 5(3) of the Act that was offensive to Section 84 of the Constitution.
She stated that the clear objective of Section 84 was to outlaw the imposition of the people¶s representatives in government the people must elect their own representatives.
“7his Section 5(3) of the Act does not impose any candidate upon the Senate elections. 7he electors retain their freedom of choice among those who qualify in terms of the section. 7here is no freedom to choose the unqualified,” the minister submitted.
Prima facie, Shakantu argued, the case of the Senate (lection Act and the Constitution was wrongly decided by the High Courts.
“7he decision a quo cries out for reconsideration on appeal. It is undesirable that this ape[ court makes its esteemed contribution to the jurisprudence at play in this case, rather than technically avoid it as lapsed,” added the minister.
%ased in these submissions, the minster implores the Supreme Court to reinstate the appeal and enroll it for determination at the earliest convenience, with the national elections being of national interest.