Electoral Court of South Africa

Application to compel Electoral Commission (EC) to recognise nomination of candidate submitted by person other than one who is the registered contact of the party with EC – EC declines to do so  – does not involve itself in internal party disputes – review of EC’s decision to withdraw nomination of candidate submitted to it by a non-registered contact person of the party – no case made for the relief sought – application dismissed.

Electoral Act 73 of 1998 – chapter 4 (ss 55-56) – regulate any and all objects to the outcome of an election – objections material to final results of election – application for declaratory relief in relation to the validity and the lawfulness of the 2024 National and Provincial Elections (NPE) – application for order declaring the said elections not to have been 'free and fair' – application for order declaring s 24A of the Electoral Act unconstitutional – s 24A requires a voter to vote only in the voting district where she/he is registered – applicant alleges irregularities – therefore, NPE were not ‘free and fair’ – results of the 2024 NPE, as declared by the Commission on 2 June 2024, should be reviewed and set aside – factually found that applicant did not make out case for the relief sought – application lacks credible evidence – respondents’ legal points in limine also upheld – application dismissed with no order as to costs

Application for leave to appeal – dismissal of the applicant’s objection by the Electoral Commission for lack of compliance with s 55 of the Electoral Act 73 of 1998 read with Rule 31 of the Elections Regulations – application for leave to appeal against dismissal of objection -  late explanation for delay not satisfactory – failure to join interested parties – appeal has no reasonable prospects of success –the application for condonation for the late filing of the application for leave to appeal is dismissed

Application by applicant for declaratory relief to compel Electoral Commission – to recognise and register him as lawful leader of a registered party – application pending before another court – held application frivolous and vexatious   – non-joinder and non-service on intervening party points in limine upheld – intervening party has a direct and substantial interest in the subject-matter of the litigation – application dismissed with punitive costs.

Request for investigation in terms of s 20(7) of Electoral Commission Act 51 of 1996 read with rule 8 of Electoral Court Rules – complainant demands particular responses and nature of investigation – not supported by preliminary investigation procedure – prima facie evidence not established to support further investigation – request declined. Procedure – discretion of court – not for complainant to demand allocation of scarce court resources – other avenues available

Application to compel Electoral Commission to keep open process of allocation of seats in the Free State Legislature - allocation of seat to applicant in the Free State Legislature  – delay in confirmation of the independent candidate's eligibility to contest provincial election unconstitutional – review of Electoral Commission’s processes to guarantee timely confirmation of independent candidates' eligibility to contest election – Independent Communications Authority of South Africa to investigate independent candidates slots to receive fair and equitable access to media platforms – relief sought moot and not competent – application dismissed

Application for leave to appeal – procedural lapse of court not fatal and not leading to ground for appeal – no likelihood that another court may find differently – application dismissed

Uniform Rule 41 – Withdrawal after set-down – Judicial discretion in awarding punitive costs – Exceptional circumstances justifying punitive costs order – Costs awarded on attorney-client scale against withdrawing party

Section 20(2A) of the Electoral Commission Act 51 of 1996 – application by a member of a political party for declaratory and interdictory relief – opposing factions of a party embroiled in a dispute about the membership, leadership, constitution, and founding instruments of a registered party – Court’s jurisdiction engaged – applicant seeks orders setting aside structures and appointments of the first decision-maker to be replaced by systems introduced by a new body in terms of the registered party’s constitution

Electoral irregularities – undue influence and abuse of power to influence the conduct and outcome of elections – Item 9(2)(e) of the Electoral Code of Conduct prohibits abuse of ‘a position of power, privilege or influence’ to influence the conduct or outcome of an election – s 87(1)(g) of the Electoral Act which provides that no person may use public funds for the purpose of a political campaign – whether Presidential address on the eve of 2024 elections violates these statutory prescripts

Jurisdiction of Electoral Court – Electoral Commission Act – Electoral Disputes Rules – Electoral Court not just a Court of Review and Appeal – Electoral Court may sit as a court of first instance – s 96(1) of the Electoral Act suggests that the statutory purpose was to create a specialist court that would deal with all electoral matters, Application dismissed with no order as to costs.

Electoral Act 73 of 1998 – Whether the respondents statements are violative of sections 87(1)(a)-(c); 87(2) and 93(2) of the Electoral Act 73 of 1998 – Whether contempt of court has been established on the part of the respondents – Jurisdiction of the Electoral Court to consider complaints about violation of Electoral Act and the Electoral Code of Conduct  - Consideration of appropriate penalty

Application for review in terms of Rule 6 of Electoral Court Rules – out of time – based on issues raised in previous application - already determined court does not have jurisdiction to determine - incompetent.

Urgent application - brought three months after election timetable published – no basis for urgency.

Procedure - application based on issues in previous applications – attempt to describe relief sought differently does not change nature of relief.

Constitutional Law - Elections – elections for which Electoral Commission responsible in terms of section 190 of the Constitution constitutionally, conceptually and factually distinct from election of office bearers within legislatures in terms of Schedule 3 of Constitution.

Costs – multiplicity of applications with no regard paid to comments of court or responses by Commission in previous application – justifying departure from practice not to order costs.

Application in terms of s 55(5) of Electoral Act, 73 of 1998 - to declare unconstitutional allocation formula in Schedule 1A of the Electoral Act, 73 of 1998 – jurisdiction – not relief falling within s 55 or otherwise within this court’s jurisdiction – application dismissed.

Administrative law – legality review – points in limine – whether the Electoral Court’s jurisdiction in terms of s 20 (1) of the Electoral Commission Act 51 of 1996 is properly engaged – whether the applicant has locus standi to bring the application – whether the applicant delayed bringing the application and if so, whether the delay may be condoned or overlooked in the interests of justice. Merits – whether Ms Duduzile Zuma-Sambudla forged the applicant’s signature in a letter marked JK6, advising the Electoral Commission (the Commission) to change the particulars of Umkhonto Wesizwe Party (MKP) to replace Mr Khumalo with Mr Zuma as its leader – whether, when it acted on the request, the Commission breached regulation 9 of the Regulations for the Registration of Political Parties, 2004 as amended – whether the award of punitive costs is warranted.

Held: Jurisdiction – this court’s review jurisdiction in terms of s 20 (1) is engaged. The Commission’s determination that the written notification to update MKP records to reflect Mr Zuma as its leader as set out in JK6 complies with regulation 6 constitutes a reviewable decision as contemplated in s 20(1)(a). The decision relates to an electoral matter because political parties are a primary mechanism through which South African citizens participates in an election.     

Held: Locus standi – as an expelled member of MKP, Mr Khumalo lacks locus standi to seek relief concerning the leadership of MKP.

Held: Urgency – the applicant failed to bring the application within the 3 days required in terms of s 20(1)(b) of the Commission Act, read with Rule 6 of the Electoral Court Rules. The delay is unreasonable. because it is not fully explained. A proper case for the delay to be condoned or overlooked in the interests of justice is not made.

Held: Merits – based on the Plascon-Evans rule, Mr Khumalo wrote JK6 advising the Commission to change its records to reflect Mr Zuma as the leader of MKP. The Commission complied with regulation 9 when it acted on this request.    

Held: Costs –the award of punitive costs is warranted because the applicant perjured himself, the application is frivolous, lack merits and constitutes an abuse of the court’s process. 

Application to compel Electoral Commission by two previously opposing factions of political party for declaratory and interdictory relief – to recognise current party leadership as lawful structure of a registered party.

Review in terms of s 20 of the Electoral Commission Act 51 of 1996 read with rule 6 of the Electoral Court Rules – application is late – not accompanied by affidavit to explain lateness – application dismissed

Application to condone the non-compliance and failure to meet the deadline in the Election Timetable for the Election of the National Assembly and the Election of Provincial Legislatures. Non-compliance with s 27 of the Electoral Act, 73 of 1998. Nothing unlawful about the IEC’s insistence on compliance with the deadline in the Timetable. Non-compliance by applicant to meet the deadline of paying the deposit on time to the IEC attributed to the party’s own fault and not that of the IEC

The Electoral Act – sections 31A, 31B (as ‘read in’ by the Constitutional Court in One Movement SA) and 31C – regulation 2A of the Regulations concerning the Submission of List of Candidates, 2004 – nomination of independent candidate – contesting elections in more than one region for the National Assembly – required to submit for each region a list of at least 1000 voter supporters in each of the contested regions – imposed by the Act and the regulations – non-compliance and failure to submit these lists disqualify an independent candidate ex lege to contest elections – factual disputes as to whether the applicant complied – to be decided in terms of Plascon Evans principle – Section 31C – gives the Chief Electoral Officer circumscribed powers to rectify limited failures of compliance with s 31B – namely in respect s 31B (3) (c), (d), (e), (f) or s 31B (4) – the section 31C only applies to those independent candidates who had submitted lists in compliance with s 31B(3)(a)(i) and (ii), read with regulation 2A of the Regulations concerning the Submission of List of Candidates, 2004 

The Electoral Act – section 27(1) and s 27(2)(cB) – unrepresented registered political party required to submit supporters’ lists ‘in the prescribed manner’ and to meet quotas imposed by the Act and the regulations – when contesting election for seats in Provincial Legislatures – non-compliance and failure to submit these lists disqualify a party ex lege to contest elections – factual disputes as to whether the applicant complied – to be decided in terms of Plascon Evans principle.

Application to set aside proclamation of National and Provincial Election for 2024 and related relief – jurisdiction – alleged failure of President to comply with constitutional obligation within exclusive jurisdiction of the Constitutional Court– application dismissed.

Section 20(2A) of the Electoral Commission Act 51 of 1996 – application by members of political party for declaratory and interdictory relief – ‘dispute [between opposing factions] relating to membership, leadership, Constitution or founding instruments of a registered party’ – Court’s jurisdiction engaged.

Lawfully elected Councillors unlawfully ousted from political party and from Municipal Council by some respondents – undisputed that the actions of the respondents in ousting applicants from the party and their PR seats on the Municipal Council were irregular and non-compliant with the constitutional prescripts of the organisation – unlawful expulsions reviewed and set aside – applicants reinstated.

Application to compel Electoral Commission to amend records and replace proportional representation candidate – not appropriate to create own timelines and deemed decision for convenience – disjunction between Electoral Commission requirements and Municipal Systems Act, 117 of 1998 – proper case must be made out that requirements fulfilled or that requirements impossible to fulfil – no case made out – application dismissed.

Section 27(2) of the Electoral Act – Election Timetable for the Election – non-compliance by applicants with requirements to submit the required number of voter signatures to contest regional and provincial elections by the deadline set in the electoral timetable – non-compliance and failure to meet deadlines in timetable factually to be blamed on the applicants and not on the Electoral Commission – therefore, nothing irrational about the Electoral Commission’s insistence on compliance with the deadlines in the timetable

Section 27(2) of the Electoral Act – Election Timetable for the Election – non-compliance by applicants with requirements to contest the National Assembly election by the deadline set in the electoral timetable – non-compliance and failure to meet deadlines in timetable factually to be blamed on the applicants and not on the IEC – therefore, nothing irrational about the IEC’s insistence on compliance with the deadlines in the timetable – Application dismissed with no order as to costs

The Electoral Act – section 27(1), s 27(2)(cB) and item 3(2) of Schedule 1A – unrepresented registered political parties required to submit lists of candidates – when contesting election for compensatory seats in National Assembly, then a candidates’ list for one region required – also required to submit supporters’ lists and to meet quotas imposed by the Act and the regulations – non-compliance and failure to submit these lists disqualify a party ex lege to contest elections – factual disputes as to whether the applicants complied – to be decided in terms of Plascon Evans principle – Section 28 – gives the Chief Electoral Officer circumscribed powers to rectify limited failures of compliance with s 27(2) – namely in respect s 27(2)(a), (b), (cA), (d) or s 27 (4) – the section 28 only applies to those parties which had submitted lists in compliance with s 27(1) and s 27(2)(cB), read with item 3(2) of the Schedule 1A – Applications dismissed with no order as to costs

Interpretation – section 33 of Electoral Act 73 of 1998 – whether the word ‘consulate’ appearing in the section and regulation 10(3) of the Election Regulations, 2004 published under GN R12 in GG 25894 of 7 January 2004 excludes a consulate headed by honorary consul – principles of statutory interpretation restated

Application to compel Electoral Commission to recognize one faction of party over another – effect of application for leave to appeal – requirement to join and serve application on all interested parties – application dismissed

Appeal against the Electoral Commission’s decision upholding the objection lodged in terms of s 30 of the Electoral Act 73 of 1998 – whether the Electoral Commission has the power to determine eligibility for National Assembly membership - whether a sentence imposed on a candidate rendered such candidate ineligible to be a member of National Assembly in terms of s 47(1)(e) of the Constitution – effect of remission on the sentence imposed - whether reasonable apprehension of bias established - effect of act remission on sentence.

Section 20 of the Electoral Act – Election Timetable for the Election of the National Assembly and the Election of Provincial Legislatures – non-compliance by applicants with timetable relating to s 27 requirements – submission of lists of candidates by political parties and nomination of independent candidates – non-compliance and failure to meet deadlines in timetable factually to be blamed on the applicants and not on the IEC’s online system – therefore, nothing unlawful about the IEC’s insistence on compliance with the deadlines in the timetable – the IEC must not be placed in a situation where it has to make ad hoc decisions about political parties and candidates who have not complied with the Act –

Applications dismissed with no order as to costs.

S 15(1) of the Electoral Commission Act 51 of 1996 (the Electoral Commission Act) – application for the registration of a political party – Chief Electoral Officer (CEO) shall, upon application by a party in the prescribed manner and form, register such party – interpretation of the section – textual and contextual purposive interpretation required – application for registration may be ‘supplemented’ after rejection of initial application for registration – no need to start application afresh after rejection by the CEO – registration of third respondent lawful and compliant with s 15(1) of the Electoral Commission Act – political party registered ‘upon application’.

Section 20(2A) of the Electoral Commission Act 51 of 1996 –
application by members of political party for declaratory and interdictory relief – ‘dispute [between opposing factions] relating to membership, leadership, Constitution or founding instruments of a registered party’ – Court’s jurisdiction engaged.

Interpretation of Constitution of political party – applicants seek orders setting aside structures and appointments of first decision-maker – to be replaced by systems introduced by new bodies in terms of Constitution.

Point in limine – non-joinder of political party – upheld – party has a direct and substantial interest in the subject-matter of the litigation.

Merits – a textual and a contextual purposive interpretation of party’s Constitution – first highest decision-making body elected and installed by the founders of party – agreement on two-year term of office and structure of governance – enforceable as between members – application dismissed with no order as to costs

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