Arise Afrika Arise (AAAR) v Electoral Commission of South Africa (008/2023 EC) [2024] ZAEC 1 (16 January 2024)

IN THE ELECTORAL COURT OF SOUTH AFRICA

HELD AT BLOEMFONTEIN

Not Reportable

Case number: 008/2023 EC

In the matter between:

ARISE AFRIKA ARISE (AAAR) APPLICANT

and

ELECTORAL COMMISSION OF SOUTH AFRICA RESPONDENT

Neutral Citation: Arise Afrika Arise (AAAR) v Electoral Commission of South Africa (008/2023 EC) [2024] ZAEC 01 (16 January 2024)

Coram: ZONDI JA, MODIBA J and SHONGWE AJ and PROFESSOR NTLAMA-MAKHANYA (Additional member)

Heard: 08 November 2023

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email, publication on the Supreme Court of Appeal website and release to SAFLII. The date and time for hand-down is deemed to be 11h00 on 16 January 2024

Summary: Application for registration of political party in terms of s 15 of the Electoral Commission Act 51 of 1996 (the Act) – Electoral Commission rejected application on the grounds that the applicant’s name resembles that of another registered party in terms of s 16 and the signatures of registered voters submitted by the applicant do not meet the threshold set by regulation 3 of the Regulations of the Act – Chief Electoral Officer has no discretion to condone non-compliance with s 15 requirements.

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ORDER

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The application is dismissed with costs.

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JUDGMENT

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Zondi JA (Modiba J and Shongwe AJ and Professor Ntlama-Makhanya (Additional member) concurring):

[1] On 15 August 2023 the applicant brought an application to this Court seeking the following relief:

(a) to review and set aside the respondent’s decision of 2 August 2023 in terms of which the respondent, the Independent Electoral Commission (Commission), dismissed the applicant’s appeal against the decision of the Deputy Chief Electoral Officer to refuse to register the applicant as a political party in terms of s 15 of the Electoral Commission Act 51 of 1996 (the Act);

(b) to condone the delay in bringing the review application; and

(c) additional declaratory relief.

[2] Two issues arise for determination in this matter. The first is whether the delay should be overlooked, and the other is whether the respondent’s refusal to register the applicant is unlawful and irrational.

[3] The applicant, Arise Afrika Arise with an abbreviated name ‘AAAR’, brought this application in terms of s 20(1)(a) and (b) of the Act which gives this Court powers to review any decision of the respondent. The founding affidavit filed in support of the relief sought in the notice of motion was deposed to by Mr Ben Suping Mothupi who describes himself as the founder, leader and president of Arise Afrika Arise. The application is late. It should have been brought within 3 days after 2 August 2023 in terms of rule 6 of the Rules of this Court. Hence Arise Afrika Arise has filed an application for condonation of the late filing of the review application.

[4] Arise Afrika Arise alleges that the delay was caused, first, by a lack of clarity in the respondent’s reasons to dismiss its appeal. It states that the respondent did not explain why it contended that the signatures furnished were fraudulent. Hence on 4 August 2023, Arise Afrika Arise requested the respondent to furnish it with full reasons for the decision. In a letter dated 7 August 2023, the respondent informed Arise Afrika Arise that it had no further reasons to furnish because it provided detailed reasons in the appeal decision.

[5] Secondly, Arise Afrika Arise blames the delay on the administrative challenges it experienced in preparing this application. Arise Afrika Arise alleges that after receiving the respondent’s letter of 7 August 2023, it had to gather the necessary information and documents required for the preparation of the review application from its members who were not immediately available. As regards the merits, Arise Afrika Arise denies that its name resembles that of Arise South Africa or that the signatures on its deed of foundation were fraudulent. It accordingly submits that its review application has good prospects of success.

[6] The question is whether on these facts, the delay in bringing this application should be condoned. The Constitution Court has made it clear that the test to be applied in condonation applications is the interests of justice. In Glenister v President of the Republic of South Africa and Others,¹ the Constitutional Court described the test as follows:

‘The test for determining whether condonation should be granted is the interests of justice. Factors that are relevant to this determination include, but are not limited to, 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 or defect, the nature and cause of any other defect in respect of which condonation is sought, the importance of the issue to be decided in the intended appeal and the prospects of success.’

[7] The interests of justice test require due consideration of all relevant factors. In Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited and Others, National Director of Public Prosecutions and Another v Mulaudzi,² this Court set out the factors that should be taken into account when considering an application for condonation:

‘What calls for an explanation is not only the delay in the timeous prosecution of the appeal, but also the delay in seeking condonation. An appellant should, whenever he realises that he has not complied with a rule of this court, apply for condonation without delay. A full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility. Factors which usually weigh with this court in considering an application for condonation include the degree of non-compliance, the explanation therefor, the importance of the case, a respondent’s interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice.’

[8] Section 20(1)(a) of the Act does not stipulate the time within which the review applications should be brought. It merely requires that any such review must be conducted on an urgent basis and disposed of as expeditiously as possible. The time within which the review must be brought is stipulated in rule 6 of the Rules of this Court. As already stated, this rule requires the review application to be submitted to the Secretary of this Court within three days after the decision was made. Applied to the facts of this case, it means that the applicant should have brought the review application by no later than 7 August 2023. The application is therefore seven days late, which cannot be considered as excessive.

[9] What concerns me is the explanation for the delay. It is lacking in substance and is not satisfactory. There was nothing unclear about the respondent’s decision to reject the appeal. The respondent had provided, in the appeal decision, full reasons for dismissing Arise Afrika Arise’s appeal. As to the second reason for the delay, Arise Afrika Arise does not explain why it could not launch the review proceedings based on the material that it had at hand and why further information was necessary for it to bring the review application.

[10] Notwithstanding Arise Afrika Arise’s failure to give full explanation for the delay, I would, in the interests of justice, grant condonation. It would not be in the interests of justice to refuse condonation in circumstances where the delay, though not fully explained, is short and the right sought to be asserted is a political right to which every citizen of this country is entitled under the Constitution. This right encompasses the right to form a political party, to campaign for a political party or cause and to participate in the activities of a political party. The respondent has not been prejudiced by the delay. In any event, Arise Afrika Arise’s members would be more prejudiced than the respondent if condonation were to be refused.

[11] What weighs heavily in favour of granting condonation is that the delay was of short duration – it is about seven days – and the importance of the constitutional issues sought to be asserted. The citizens have the right to freedom of association and the right to form a political party and to right to campaign for a political party or cause.³ These fundamental rights must be protected, and the voters should not be punished because of the ineptitude of the leaders of their political parties.

[12] After all these preliminaries, the attention can now be directed to the merits of the review. A convenient starting point is to outline the legislative framework against which the matter must be considered. Sections 15 and 16 are located in Chapter 4 of the Act which deals with registration of parties. Section 15 provides as follows:

‘(1) The chief electoral officer shall, upon application by a party in the prescribed manner and form, accompanied by the items mentioned in subsection (3), register such party in accordance with this Chapter in respect of –

(a) the entire Republic;

(b) a particular province; or

(c) a particular district or metropolitan municipality,

Provided that a party registered for a –

(i) particular province may under such registration only participate in elections for that provincial legislature and for all the municipal councils in that province;

(ii) metropolitan municipality may under such registration only participate in elections for that metro council; or

(iii) district municipality may under such registration only participate in elections for that district council and for the local council falling within the area of that district municipality.

(2) The form shall, inter alia, make provision for the following:

(a) the name of the party;

(b) the distinguishing mark or symbol of the party in colour; and

(c) the abbreviation, if any, of the name of the party consisting of not more than eight letters.

(3) The application shall be accompanied by –

(a) that party’s deed of foundation which has been adopted at a meeting of, and has been signed by the prescribed number of persons who are qualified voters;

(b) the prescribed amount, if any; and

(d) that party’s constitution.

(4) The party’s deed of foundation shall contain the prescribed particulars.

(4A) A party applying for registration in terms of subsection (1) must publish the prescribed notice of the application in –

(a) the Gazette, in the case of an application referred to in subsection (1)(a);

(b) the relevant provincial Gazette, in the case of an application referred to in subsection (1)(b); or

(c) the relevant provincial Gazette or a newspaper circulating in the municipal area concerned, in the case of an application referred to in section (1)(c).

(4B) Any person may object to an application contemplated in subsection (1) in the prescribed manner and form within 14 days after the publication of the prescribed notice of the application.

(5) After a party has been registered the chief electoral officer shall issue that party with a registration certificate in the prescribed form and publish the prescribed particulars of such registration in the Gazette.

(6) Every registered party not represented in a legislative body shall annually renew its registration in the prescribed manner and at the prescribed time.

(7) A party that is registered for a particular local municipality on the date on which the Electoral Laws Amendment Act, 2021, comes into operation, must be deemed to be registered in respect of the district municipality within whose jurisdictional area that local municipality is situated.’

[13] It is significant to note that in terms of s 15, the Chief Electoral Officer is obliged to register a party whose application complies with all the requirements set out in that section. This is apparent from the language of s 15. Section 15(1) uses the term ‘shall’ which in the context of this section means ‘must’. The term ‘shall’ should be construed as peremptory rather than directory. One of the requirements stipulated in s 15(3) is that ‘the application must be accompanied by the party’s deed of foundation which has been adopted at a meeting of and has been signed by the prescribed number of persons who are qualified voters’. The requisite number is 1000 qualified voters. The Chief Electoral Officer must reject an application which does not meet this threshold. He or she does not have authority to condone non-compliance. The section does not afford him or her discretion.⁴

[14] The circumstances in which a registration application may be refused are specifically set out in s 16(1). In terms of this section, the Chief Electoral Officer may not register a party if ‘a proposed, abbreviated name…in the application resembles the name, abbreviated name…of any other registered party to such an extent that it may deceive or confuse voters’.⁵ The use of the term ‘may’ indicates that the Chief Electoral Officer has a discretion. The term ‘may’ as used in this section was not intended to empower the Chief Electoral Officer to refuse the application on the grounds other than those specified in the section; the intention was merely to give the Chief Electoral Officer a discretion and not make it obligatory to refuse the application. Obviously, he or she must exercise that discretion judiciously by considering all the factors that are relevant to the decision.⁶ The second observation to make is that the Chief Electoral Officer exercises his or her powers independently of the existence of any objection to the name proposed. The existence of an objection is not a jurisdictional requirement for the exercise of his or her discretion. There is no suggestion by Arise Afrika Arise that, in rejecting its application, the Chief Electoral Officer grossly misdirected himself. It follows that the application should fail.

[15] Section 16(2)(a) and (b) provides for the right of appeal to the Commission:

‘(a) An applicant who is aggrieved by a decision of the chief electoral officer not to register that party may, within 30 days after the party has been notified of the decision, appeal against the decision to the Commission in the prescribed manner.

(b) Any person who objected to an application in terms of section 15(4B) and who is aggrieved by a decision of the chief electoral officer to register that party may, within 30 days after publication of the notice referred to in section 15(5), appeal against the decision to the Commission in the prescribed manner.’

[16] The powers of the Commission on appeal are set out in s16(4) as follows:

‘In considering such an appeal against the refusal to register a party in terms of subsection (1) (a) the Commission-

(a) shall take into account the fact that the party which is associated with the name, abbreviated name, distinguishing mark or symbol, as the case may be, for the longest period, should prima facie be entitled thereto;

(b) may, for the purposes of paragraph (a)—

(i) afford the parties concerned an opportunity to offer such proof, including oral evidence or sworn or affirmed statements by any person which, in the opinion of the Commission, could be of assistance in the expeditious determination of the matter; and

(ii) administer an oath or affirmation to any person appearing to testify orally before it. [Sub-s. (4) amended by s. 29 of Act No. 34 of 2003.]’

[17] Back to the narrative. On or about 23 May 2023, Arise Afrika Arise applied for registration as a political party in terms of s 15 of the Act. The application was considered by the Deputy Chief Electoral Officer: Electoral Operations. On 22 June 2022, he rejected the application on two grounds, first, that the signatures of the registered voters on the deed of foundation showed patterns of discrepancies which, in his view, indicated that the signatures were made by a person or persons other than the voter in contravention of regulation 3(1)(a)(i) of the Regulations for the Registration of Political Parties, 2004, promulgated under the Act. This regulation requires that the deed of foundation of a party seeking national registration – such as Arise Afrika Arise – must be signed by 1000 registered voters. Secondly, the Deputy Chief Electoral Officer found, in terms of s 16, that the name ‘Arise Afrika Arise’ was almost similar to that of an existing party namely Arise South Africa and that it was likely to confuse or deceive the voters.

[18] Aggrieved by the rejection decision, Arise Afrika Arise lodged an appeal with the respondent. It contended that the Deputy Chief Electoral Officer erred in finding that its name resembles that of another registered party and that it was likely to confuse or deceive the voters. Notably, in its grounds of appeal, Arise Afrika Arise did not challenge the respondent’s finding that the signatures of registered voters on the deed of foundation were fraudulent and that the names of some of the registered voters on the deed of foundation were duplicated. In the circumstances, that finding still stands.

[19] Arise Afrika Arise contended that the decision to reject its registration application on the basis that its proposed name was similar to that of Arise South Africa was unfair and inconsistent with the respondent’s previous actions in registering the other political parties with similar names. Arise Afrika Arise accused the respondent of being inconsistent in the manner in which it applied the regulations regulating the registration of political parties. It alleged that the respondent had caused parties such as Aboriginal Khoisan – A.K.S, which it said shares a striking similarity with the name Aboriginal Kingdom Alliance – AKA; African Born Freedom Fighters – ABFF, which is similar to that of Economic Freedom Fighters – EFF and African Economic Freedom – AEF to be registered. Arise Afrika Arise averred that the respondent’s decision to refuse its registration demonstrated glaring acts of corruption, mala fides, and abuse of power.

[20] On 2 August 2023, the respondent dismissed Arise Afrika Arise’s appeal and confirmed the Deputy Chief Electoral Officer’s decision (appeal decision). It reasoned that the registration of the name ‘Arise Afrika Arise’ was likely to deceive or confuse voters in circumstances where there is ‘an increasing phenomenon of registered parties’. It correctly found that as Arise Afrika Arise had not challenged the finding that its application for registration failed to comply with regulation 3, which also formed the basis of the Deputy Chief Electoral Officer’s decision, there was no basis to interfere with the decision.

[21] As stated in para 1 above, Arise Afrika Arise, still not satisfied with the respondent’s appeal decision, brought this application on 15 August 2023 seeking the review and setting aside of the respondent’s decision. Arise Afrika Arise anchors its review on the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The review is based on the following grounds:

(a) the decision to reject its registration on both grounds advanced by the respondent is irrational and lacks any basis in law as there are no similarities between its name and that of Arise South Africa and there is no evidence of voter confusion;

(b) the decision was made without affording Arise Afrika Arise an opportunity to be heard, nor was it provided any explanation for the decision;

(c) the respondent failed to adhere to its own guidelines and procedures relating to raising of objections and no party had objected to its name;

(d) the respondent’s decision to reject its registration violated its constitutional rights; and

(e) Arise Afrika Arise was unfairly treated.

[22] Arise Afrika Arise submitted that the respondent’s refusal to register it as a political party is arbitrary, unreasonable and unlawful and amounts to a failure to exercise its powers in accordance with the principles of administrative justice. It denies that the name Arise Afrika Arise (AAAR) is substantially similar to that of Arise South Africa (ASA). In support of the denial, Mr Mothupi, the deponent to the founding affidavit, pointed to the fact that there was a clear distinction between the names Arise Afrika Arise and Arise South Africa in terms of linguistic elements and distinct identifiers. He maintained that Arise Afrika Arise is focused on uplifting Africa, whereas Arise South Africa’s focus is on the upliftment of South Africa specifically. He argued that voters are intelligent and have the capacity to differentiate between political parties based on their unique names, ideologies, and policy platforms. He argued that the respondent failed to provide evidence that the voters would be confused. Mr Mothupi accordingly submitted that there was no basis for the respondent to reject Arise Afrika Arise’s application in circumstances especially where neither Arise South Africa nor any other political party had objected to its application.

[23] In argument before us, counsel for the respondent submitted that Arise Afrika Arise had not made out a case for the relief it seeks and urged this Court to dismiss the application. He argued that it was not open to Arise Afrika Arise to challenge, in these proceedings, the respondent’s finding that it failed to comply with regulation 3 when such finding was not challenged on appeal for the respondent to consider. In the alternative, it was submitted by counsel that the signatures of the registered voters on the deed of foundation submitted by the applicant are plainly different from the voters’ actual signatures that they provided the respondent when they registered to vote. He pointed to the similarities of the signatures and the names of some of the voters appearing twice in the list but having different signatures and the voters coming from over 150 municipalities but yet they all signed a pre-printed list. In addition, it was submitted on behalf of the respondent, that the respondent was correct to conclude that the name ‘Arise Afrika Arise’ is too similar to Arise South Africa that it may cause confusion or deceive voters.

[24] At the hearing it became clear that Arise Afrika Arise should not have brought this application. This much was conceded by Arise Afrika Arise’s representative. I have two fundamental problems with Arise Afrika Arise. First, Arise Afrika Arise sought to attack the decision by impermissibly advancing a new ground which was not raised in an appeal before the respondent. Secondly, it had no response to the finding that the signatures of registered voters on the deed of foundation were fraudulent. When Mr Mothupi realized the magnitude of shortcomings in Arise Afrika Arise’s application, he capitulated and sought leave to withdraw it conceding that the decision to bring the application was ill-advised. The respondent strongly objected to the request, contending that Arise Afrika Arise should have withdrawn its application before the hearing as it was clear from the outset that its claims were unfounded. This Court upheld the respondent’s objection, more so since Arise Afrika Arise has made allegations of fraud against the respondent. The respondent is entitled to a finding whether or not these allegations have any foundation.

[25] The question is whether the decision of the respondent was irrational and/or unreasonable or unlawful. Reasonableness and rationality as grounds of review are dealt with in a number of overlapping instances in PAJA. Specifically, s 6(2)(e)(iv) of PAJA provides that administrative action is reviewable if the action was taken ‘arbitrarily or capriciously’. Similarly, s 6(2)(f)(ii) provides that administrative action is reviewable where the action is not rationally connected to the purpose for which it is taken, the purpose of the empowering provision, the information before the administrator or the reasons given for it by the administrator. In addition, s 6(2)(h) provides that administrative action is reviewable where the decision ‘is so unreasonable that no reasonable person could have so exercised he power or performed the function’.

[26] The respondent was exercising public powers when it made the impugned decision. It derives its powers from ss 15 and 16 of the Act. These sections give the respondent powers to consider and grant or refuse registration applications under certain circumstances. It is trite that all exercises of public power are subject to the rule of law and more specifically the doctrine of legality.⁷ In Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others,⁸ the Constitutional Court confirmed that every sphere is constrained by the principle that no exercise of power or performance of a function may be beyond that extended in law. In President of the Republic of South Africa and Others v South African Rugby Football Union and Others,⁹ the Constitutional Court expanded upon this explanation, giving content to the doctrine of legality. In Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others,¹⁰ the Constitutional Court held that the doctrine of legality means that the exercise of public power cannot be arbitrary.

[27] I cannot find fault with the respondent’s conclusion that the name Arise Afrika Arise so resembles that of Arise South Africa to such an extent that it may deceive or confuse voters as contemplated in s 16(1)(b) of the Act. The purpose of this section was considered by this Court in Cape Party v Electoral Commission and Another ¹¹ in an appeal brought by the Cape Party against the decision of the Electoral Commission upholding the decision of the Chief Electoral Officer to dismiss Cape Party’s objection to the application for the registration of ‘COPE’ as the abbreviated name of the Congress of the People. Cape Party contended that the abbreviated name ‘COPE’ resembles its name in contravention of s 16(1)(b) of the Act.

[28] This Court held that the section was enacted for the protection of the voting public and not so much, if at all, for the protection of the parties.¹² It is apparent from the language of the section that primarily, the section was intended to protect the voters – both partisan voters and undecided voters – from being deceived or confused by the use by one party of the name, abbreviated name, distinguishing mark or symbol which resembles that of another registered party. What is prohibited is the use of the offending name in relation to activities concerning the elections, be it the use on the ballot paper or campaigning material. The prohibition does not extend to the use unrelated to election activities.

[29] On a comparison of the two names, it can properly be said that there is a reasonable likelihood of confusion if both are to be used together on the ballot paper. The emphasis in both names is on the two words ‘Arise’ and ‘Afrika’. An undecided voter may cast his or her vote for Arise Afrika Arise when in fact his or her intention is to vote for Arise South Africa or may put his or her mark next to Arise South Africa when his or her intention is to cast his or her vote for Arise Afrika Arise. The respondent was therefore entitled to refuse to register it.

[30] Arise Afrika Arise has no answer to the Deputy Chief Electoral Officer and the respondent’s finding that the signatures of the registered voters on its deed of foundation were fraudulent. Section 15(3)(a) requires an application to include ‘that party’s deed of foundation which has been adopted at a meeting of and has been signed by the prescribed number of persons who are qualified voters’. Regulation 3 requires that the deed of foundation must be signed by 1000 registered voters. The signatures provided by Arise Afrika Arise were not signatures of registered voters. For instance, several voters were repeated twice, but with two different signatures. It is clear from the evidence that Arise Afrika Arise could not have met the threshold of 1000 qualified voters. The respondent was therefore justified in rejecting the application which does not comply with the Act.

[31] As regards costs, it is correct that in general cost orders are not imposed upon a losing party in electoral matters unless such party’s conduct has been vexatious, frivolous or abusive of the court processes. In this matter, Arise Afrika Arise abused the court processes. It failed to comply with the requirements of the Act in relation to registration and when the respondent rejected its application it resorted to personal attacks on the respondent and accused it of fraud and corruption. Findings of fraud are not easily made. Allegations of fraud must be proved. Arise Afrika Arise bore the onerous onus to prove fraud on the part of the respondent.

[32] This is particularly so because there is a presumption that the respondent, as a state organ, would have complied with all procedural requirements and other formalities before rejecting Arise Afrika Arise application.¹³ It failed to show that its application for registration ought to have been accepted as it met all the requirements of the Act, and that the respondent rejected it because of some ulterior motives. Arise Afrika Arise must therefore pay costs of the application.

Order

[33] I therefore make the following order:

The application is dismissed with costs.

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D H ZONDI

CHAIRPERSON OF THE ELECTORAL COURT

Appearances

For the applicant: B S Mothupi (in person)

For the respondent: M Tsele

Moeti Kanyane Attorneys, Centurion