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[2016] ZAGPJHC 238
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Democratic Alliance v Independent Communications Authority of South Africa and Others (03462/2015) [2016] ZAGPJHC 238 (9 September 2016)
OFFICE
OF THE CHIEF JUSTICE
REPUBLIC
OF SOUTHAFRICA
Case
No: 03462/2015
DATE:
9 SEPTEMBER 2016
In
the matter between:
DEMOCRATIC
ALLIANCE
...................................................................................................
Applicant
And
INDEPENDENT
COMMUNICATIONS
AUTHORITY
OF SOUTH
AFRICA
..............................................................................
1
st
Respondent
CHAIRPERSON
OF THE INDEPENDENT COMMUNICATIONS
AUTHORITY
OF SOUTH AFRICA
N.O
.....................................................................
2
nd
Respondent
COMPLAINTS
AN COMPLIANCE COMMITTEE OF THE INDEPENDENT
COMMUNICATIONS
AUTHORITY OF SOUTH AFRICA
.....................................
3
rd
Respondent
CHAIRPERSON
OF THE COMPLAINTS AND COMPLIANCE
COMMITTEE
OF THE INDEPENDENT COMMUNICATIONS
AUTHORITY
OF SOUTH AFRICA
N.O
......................................................................
4
th
Respondent
SOUTH
AFRICAN BROADCASTING
CORPORATION
..........................................
5
th
Respondent
SOUTH
AFRICAN POLICE
SERVICES
.....................................................................
6
th
Respondent
JUDGMENT
Coram
RE Monama, J
[1]
This is an application by the Democratic Alliance to review and set
aside, the relevant respondents’ decision which ordered
it to
excise a part of a political television advertisement aired during
April 2014. The Applicant seeks the costs as well.
[2]
The Democratic Alliance is a registered political party and the
official opposition in the Parliament of the Republic of South
Africa.
[3]
There are six the respondents. Only four respondents are opposing the
relief. The first respondent is Independent Communications
Authority
of South Africa (“The Independent Authority”). The
second, the third and the fourth respondents are the internal
structures or business units of the first respondent (they are
referred herein collectively as “the Respondents”).
[4]
The fourth respondent (the chairperson of the Complaints and
Compliance Committee “the CCC”) is opposing the relief
sought but did not file the heads.
[5]
The South African Broadcasting Corporation (“the SABC”)
is the fifth respondent and is the only public broadcaster
in the
Republic . It is not opposing the application.
[6]
The sixth respondent is the South African Police Services (the
SAPS”). This respondent is not opposing the application.
It is
however, the complainant who started these proceedings before the
Respondents.
[7]
In 2014 the Republic went to the polls. During April 2014 the
political campaigns from all and sundry were in full swing The
Democratic Alliance issued an advertisement to the South African
Broadcasting Corporation to be broadcast on their various platform.
The advertisement featured Mr Mmusi Maimane, then the premier
candidate for Gauteng Province. The script read as follows:-
“
So
they say they took South Africa forward. Life today is better than it
was 20 years ago. There have been some great leaders, leaders
that
have taken this country forward. You voted for them.
But
since2008, we have President Zuma’s ANC. An ANC that is
corrupt. An ANC for the connected few. It’s an ANC that’s
taking us backward. R200million is spent on upgrading the president’s
private house.
We’ve seen a
police force killing our people.
An ANC where 1.4 million more South Africans lost their jobs. Where
are the jobs President?
iANC,
Ayisafani [it’s not the same/ it has changed].
Together
we can bring hope. Together we can allow an environment that creates
jobs. Together, we can bring change for all South
Africans.”
[The
underlining supplied]
In
the advertisement Mr Maimane is delivering a monologue, overlaid with
video clips and pictures featuring the members of
SAPS. The
advertisement was flighted on three occasions during 8 and 9 April
2014.
[8]
On 10 April 2014 the Chief Executive Officer of the South African
Broadcasting
Corporation notified the applicant that the advertisement will be
stopped. The notification reads as follows:-
“
-
It is our view that reference in your television
advertisement
to
police
killing our people
is
cause for incitement to action against
police
services
[1]
………..We
are of the view that
SABC
will not permit personal attacks on any
party
member or leader by any other party, as is
being
done in your advertisement in respect of
President
Jacob Zuma. We do not have any concern
about
generic statements regarding matters such as corruption or lack
service of deliver
[2]
……”
[The
underlining supplied]
The
applicant objected and the parties held some negotiations to resolve
the dispute. A settlement was reached which allowed the
broadcast
subject to the deletion of any reference of personal attack
particularly that of President Jacob Zuma. The formal hearing
of
the objection was postponed
sine die.
The broadcast was resumed during the
evening of 16 April 2014.
[9]
On 17 April 2014 the South African Police Services lodged a complaint
with SABC. They requested the advertisement to be stopped
pending
their formal complaint. Their request was rejected.On 20 April 2014
they lodged the complaint through their lawyers. They
contended
that:-
‘
-Our
client submit that the content of the advertisement, insofar as it
relates to SAPS, is
likely
to promote unlawful, illegal or criminal acts as contemplated in
Regulation 6(9)(b) and provoke violence as contemplated in Section
9(1)(a) of the Electrical Code.”
[3]
and
“
-Our
client submits that the advertisements breaches the Regulations
it
likely to provoke violence against members of SAPS
.
Our client therefore request the CCC to make a finding that the
advertisement breaches the Regulations and recommend that Icasa
direct the SABC to stop broadcasting the advert.”
[4]
[The
underlining supplied]
An
urgent hearing was held on both 24 and 25 April 2014. During the
hearing Independent Authority received the written and oral
submissions. On 25 April 2016 issued an order without full reasons.
It found that the advertisement breached the Regulations. On
or
during 18 August 2014 the applicant received the comprehensive
judgment. In between these dates the general elections were held.
[10]
The issue to be determined is whether that portion of the
advertisement which the police complained about was
likely
to provoke violence against them and in breach of the election
regulations or codes. Lastly, whether the issues has become moot
because the general elections has come and gone.
[11]
The legal framework is encapsulated in Regulations on Party Election
Broadcasts, Political Advertisements, the Equitable Treatment
of
Political Parties by Broadcasting Licensees and Related Matters, 2014
(“ the Code.”) The Code provides that:
“
-
A
party that submits a political advertisement to a broadcasting
service licensee for a broadcast must ensure that the advertisement
does not:-
(a)
contravene the provisions of the Electoral
Code, the Electoral Act, the Constitution, the Act (Electronic
Communications Act 36
of 2003) and the Broadcasting Act; or
(b)
contain any material that is calculated, or
that in the ordinary course is likely, to provoke or incite any
unlawful, illegal or
criminal act, or that may be perceived as
condoning or leading support to any such act.”
The
Code informed the political parties about the framework. It gave
guidelines under which a political election broadcast and political
party advertisements shall be conducted.
[12]
As stated above the parties have raised and dealt with the question
of mootness in their heads of arguments. There are two
principles
which govern the issue .
[5]
These are:-
·
whether there is live or an existing
dispute, and
·
in
the absence of live dispute, the next inquiry is whether the
interests of justice demand that the matter be decide.
[6]
In
deciding this issue of the court must approach the issue broadly.
[7]
Before I deal with the issue it apposite to summarise the
fundamentals or core duties and roles of the relevant parties. These
are the roles of the Democratic Alliance (“the DA ”.),
Respondents, the South African Broadcasting Corporation and
the South
African Police Services.
[13]
As stated above the Applicant is a registered political party. Its
core business is to engage in political discourse in the
Republic.
The right is part of our democratic dispensation. The Independent
Authority is established in terms of law.
[8]
Its areas of jurisdiction are extensive
[9]
and include the management of Broadcasting Act,
[10]
and the Electronic Communications Act.
[11]
It has extensive and critical areas of our lives to control. It
was for these reasons that it has to be independent
as the name
correctly suggests. It has to be insulated from political or economic
capture. It must perform its mandate without
fear and favour. It must
give its pronouncements irrespective of the parties involved or
whether such pronouncements will be applauded
or not. It is another
institution which supports our democracy in the field of freedom of
expression, political participation and
censorship. It is a chapter
nine institutions. The institution has control over the SABC which is
the sole public broadcaster.
The Independent Authority must therefore
act fairly without fear and favour. It must be seen to have acted as
such.
[14]
The said Act regulates the public broadcaster, the South African
Broadcasting Corporation. The SABC has huge and extensive
powers.
These powers must be exercised fairly. The objectives of the
Broadcasting Act are to establish and develop broadcasting
policy in
the public interest and for the purpose of contributing to democracy,
of safeguarding, enriching and strengthening political
discourse.
This monumental task is articulated as follows:-
“
-
In countries with high levels of illiteracy like South Africa, the
role of
broadcasting is all the more
important in providing information so that
people
can participate in the process of development and nation-building.
In relation to the development it ranges from the
provision of human
rights, housing, public
health and agricultural guidance to literacy and
formal
education, economic and financial analysis. In nation-building, the
role of broadcasting is to nurture a common sense
of citizenship, reconciliation
and
tolerance while reflecting the rich cultural, language, religious and
regional diversity of South African
population. Broadcasting is one of the few
opportunities
for historically separated sectors of South African society to see
and know each other and learn to navigate the differences.”
[12]
Finally,
t
he powers of the South African Police
Services on the other hand, are to prevent, combat and investigate
crime, to maintain public
order, to protect and secure the
inhabitants of the Republic and to uphold and enforce the rule of
law.
[15]
The alleged offending portion has been stated already in paragraphs 8
and 9 above. This application raises several complex
legal issues,
human rights, censorship, democratic principles and political or
public policy considerations. It raises the right
of freedom of
expression, the political discourse rights, censorship and the issue
of mootness. It is therefore proper to have
reflected on the roles of
the different parties particularly the SABC, the SAPS , the
Independent Authority and the Democratic
Alliance.
[16]
The various courts in this country have developed jurisprudence as to
how to interpret the
rights
provisions contained in the Constitution which may be broadcasted
over the SABC platforms
. T
he
test to interpret the
political
broadcast materials is settled. The case law and the
pronouncements of the Supreme Court of Appeal , and the
Constitutional Court were placed before the tribunal. These courts
have laid down the guidelines. First, it is now trite
the
statutes dealing with these rights must be interpreted purposively
and consistently with the provisions of the Constitution.
[13]
This supreme law guarantees every citizen those rights. Thus where
two or more compatible interpretations are available the
interpretation
that advances the spirit of the Bill of
rights
provisions
should
be adopted.
[14]
Where
necessary, the courts are obliged to consider the provisions of
international law .
[15]
The
test is not to rely on speculation and conjecture but substantial
evidence about the real danger.
[16]
[17]
The court now turns to the evaluation of the evidence as contained in
the affidavits and annexure thereto. The court is required
to take
the entire conspectus
[17]
of
all evidence presented into account. It is incorrect to cherry-pick
one obvious aspect of evidence and latch on it without putting
it in
a proper context of entire evidence.
[18]
The Applicant contends that the decision of Respondent is flawed and
stands to be reviewed and set aside. It relies on both
the legal and
factual errors. In respect of material legal errors it is contended
that:-
·
it is wrong that during election time the
freedom of expression must restrained;
·
it used wrong standard of proof; and
·
it failed to adopt a more contextual and
reasonable interpretation.
The
alleged material factual errors relate to the use of irrelevant
facts. Applicant contends further that there were no factual
evidence placed before the Respondents to support their allegations
that the advertisement was
likely
provoke violence as alleged.
[19]
The Respondents’ submissions is that they were justified
because the advertisement objectively viewed , in its context,
encouraged the public to view the police as enemies. They also rely
on Section 205 of the Constitution as well as Section 49 of
Act 51 of
1977.
[18]
[
20]
Section 205 of the Constitution deals with the police issues. It
provides
that:-
“ –
(1)
The national police service must be structured to function in the
national, provincial and, where appropriate, local
spheres
of government.
(2)
National legislation must establish the powers and
functions
of the police service and must enable the
the
police service to discharge its responsibilities
effectively,
taking into account the requirements of
the
provinces.
(3)
The objects of the police service are to prevent, combat
and
investigate crime, to maintain public order, to protect
and
secure the inhabitants of the Republic and their
property,
and to uphold and enforce the law.”
The
above section has no bearing on the issue ad it is considered to be
irrelevant. Section 49 of Act 51 of 1997 deals with use
of force to
effect or in effecting arrest. The section provides
inter
alia
that :-
“
-(2)
if any arrestor attempts to arrest a suspect and the suspect resists
the attempt, or flees, or resists the attempt and flees,
when it is
clear that an attempt to arrest him or her is being made, and the
suspect cannot be arrested without the use of force,
the arrestor
may, in order to affect the arrest, use such force as may be
reasonably necessary and proportional in the circumstances
to
overcome the resistance or to prevent the suspect from fleeing, but ,
in addition to the requirement that the force must be
reasonably
necessary and proportional in the circumstances, the arrestor may use
deadly force only if-
(a)
the suspect poses a threat of serious
violence to the arrestor or any other person; or
(b)
the suspect is suspected on reasonable
grounds of having committed a crime involving the infliction or
threatened infliction
of serious bodily harm and there are no
other reasonable means of affecting the arrest, whether at that time
or later.”
The
respondents concluded its submissions that their decision was
justified.
[21]
These two submissions are devoid of any merits and dangerous at best.
There is nothing in this advertisement that can remotely
be
construed as an invitation to obstruct the police in the execution of
their work. The respondent must be reminded that
there is a
rule of law in this country. This Coution is directed to the South
African Police Services.
[22]
It is common cause that the events regarding the assault on the
police happened prior to the broadcast. The police activities
[19]
in Bekkersdal during October 2013, in Marikana , in Free State and
Daveyton occurred well before the advertisement
. There were
outcry about the police conduct and alleged brutality. However, no
violence occurred against them. Their argument
Became
just a speculation and baseless. Therefore, the
Respondents’ decision is wrong and illogical.
What is
shocking is that the committee misdirected itself notwithstanding the
wealth of jurisprudence presented in this regard
and more so they
disregard cogent argument. The broadcast was aimed at the
political adversary, the African National Congress.
The applicant
wanted to inform the public about the two African Congress. One
before 1998 and one thereafter. The latter
is allegedly for the few
and politically well connected
[23]
Sections 16 and 19 of the Constitution deal with the freedom of
expression and political rights. These rights are at the cornerstone
of our democracy.
Section
16(1) of the Constitution provides that:
“
-
Everyone
has the right to freedom of expression, which includes:-
(a)
freedom to receive and impart information
or ideas.”
Section
19 of the Constitution provides and protects political rights. In
Section 19(1) there is a right to campaign for a political
party and
course while Section 19(2) provides for free and fair elections.
There is a close connection between freedom of expression,
political
rights and the maintenance of democracy.
[20]
The conduct of SAPS and the Respondents deprived the people of the
Republic to hear the Applicant.
[24]
As stated above, there is a plethora of judgment are several
judgments which emphasise the crucial role of the freedom of
expression and the right to campaign freely.
[21]
They held that these rights must be curtailed only in extreme
situation where the language justify it and backed by real evidence.
The Independent Authority is expected to guard these rights
jealously. The respondents have failed the country. They went
out of their ways to find in favour of the executive. The third
respondent emphasized the limitation clause in the Constitution
to
find for the SAPS. They do no deal with the importance of the freedom
of speech. The fact that there must be free political
discourse. The
silence is a course of concern. I am not aware whether the members of
the third respondent take an oath before the
adjudicate issue.
The Act is silent on this issue of oath
[22]
.
The matters they were called to decide upon are curial. Unless their
impartiality is guaranteed by oaths their decisions will
always be
suspects. This committee issues order which must be obeyed. The
Respondent used wrong test in that they held the
test as follows:
“
-In
our view the test is as spelt out in the above regulation which
require CCC to consider whether the material of the portion
of the
advert that relates to police is likely to provoke or incite any
unlawful, or illegal of criminal act, or that it may be
perceived as
condoning or lending support to such act.
The
election period tends to bring a lot of volatility and therefore the
language that is used during the period should be guarded
and be
conducive to an environment that is peaceful, lawful and free for the
political parties and public to exercise their right
s.
The police should not be seen as a threat to the community as
suggested by the advert.”
[23]
[
the
underlining provided]
There
was no legal and sound grounds to curtail such a vital right. As
stated above that right is fundamental. The Respondents
twisted
concessions which the applicant made. The reference to a concession
by the Applicant is taken out of context. The Applicant
conceded and
correctly so in my view that the members of the police services work
under difficult conditions.
[24]
The Respondents used such concession to curtail the applicant’s
freedom of speech and right to campaign freely, such attitude
is
unacceptable. The Respondents failed to act fearlessly to protect the
fundamental political right.
[25]
The Applicant’s contention is that the Respondent used
speculation and conjecture in their interpretation of the statement
that is:-
“
-likely
to provoke violence against the members of the SAPS.”
[25]
They
used restrictive interpretation. This is wrong approach which went
against the precendent, and they suppressed the applicant’s
freedom of expression and political discourse. The court finds the
conduct of the SAPS in the lodging of the complaint strange.
They
invited themselves whereas the people target was the African
National Congress. Their decision not to get involved in
the review
process is surprising and likely to fuel speculation. It must be
remembered that a portion of the advert that mentioned
the President
was postponed
sine die.
The last point of material error of
law is the failure by the respondent to contextualise and adopt a
reasonable interpretation.
The proper approach in the interpretation
of Regulation 6(9)(b) of the Code is contextual and objective. The
court has already
cautioned against selective approach. The selective
approach is frowned upon by the recent decision where it was held
that:-
“
-It
is important to look, as an ordinary reader would, at the statements
complained of in the context of the extracts as a whole.
The
respondents relied on certain parts of the extract and attempt to
show that these particular parts excised from the extract
and
standing alone were defamatory. This end of selective approach is not
acceptable.”
[26]
The
prohibition is understandable because the meaning must obtain form
the entire text.
[26]
The court has already alluded to the benefit of regard to
international in the interpretation of the bill of rights provisions.
The above approach finds support in the decisions of the European
Court of Human Rights where it was held:
“
-
In the court’s view, a legal system which applies restrictions
on human rights in order to satisfy the dictates of public
feeling
[South African Police Services] – real or imaginary –
cannot be regarded as meeting the social needs recognised
in a
democratic society, since the society must remain reasonable in its
judgment. To hold otherwise would mean that freedom of
speech and
opinion is subjected to heckler’s veto,”
[27]
The
police abused their powerful position with little or no regards, to
the democratic right of the Democratic Party. This abuse
has had
severe adverse consequences. They abuse the financial resource of the
Republic. They were abetted and supported by the
Respondents who
disregarded the most powerful submissions and the precedent. Their
bona fide are questionable. It is the same Respondents
who delayed in
their judgment and now allege mootness. The Respondent ought to act
fairly and fearlessly. Our democracy depends
on their neutrality.
[27]
The court has already stated that the relevant case law was placed
before the tribunal. The tribunal in its wisdom chose to
ignore the
pronouncements including those of the highest court in land.The
function of the Constitutional Court is to guide
and direct
jurisprudence particularly insofar as it affects human and allied
rights. It recently held in Kham v Electoral Commission
of South
Africa that:
“
-The
constitutional requirement is that elections must be free and fair…
The expression highlights both the freedom to participate
in the
electoral process and the ability of the political parties and
candidates, bot aligned and noon-aligned, to compete with
one another
on relatively equal terms, so far as that can be achieved by the IEC.
As to the former, from the perspective of a political
party or an
individual candidate seeking election in a municipal party or an
individual candidate seeking election in a municipal
ward, it demands
the freedom of canvass: to advertise: and to engage in the activities
normal for a person seeking election,”
[28]
This
judgment is binding on all the courts of the land. It is a precedent
and guideline. It cannot be ignored. The word “
likely
”
has been held to be more than speculation and that interpretation is
binding . The Respondents have totally misunderstood
and misapplied
the legal frame work governing the interpretation of freedom of
speech in terms of Regulation 6(9)(b). Their interpretation
is
illogical and unfair. Their interpretation favoured the South African
Police Services unfairly. I found no plausible explanation
as to why
the SAPS who are the complaints failed to assist the court by giving
their heads of arguments. The only inferences to
be drawn from their
entire conduct were to advantage a political party and to resist the
political discourse. Their argument that
the applicant drew them into
the political “skirmishes” is disingenuous. They invited
themselves into the arena. They
cannot be blamed alone. The
Independent Authority should have considered the evidence fairly and
they failed to do so.
[28]
Both parties have dealt with the mootness in their heads of argument.
The Applicant conceded that the issue is moot but submitted
the issue
is important and it must be decided. The respondent did not make any
oral submission on the issue. However, it dealt
with the issue in
their heads of argument.
[29]
The issue can be disposed of promptly. In assessing the issue, regard
must be had to the entire issue and conduct of the respondents.
Notwithstanding, their eagerness to deal with the matter as urgent it
took them almost three months to deliver the reasons for
their
decision. Such delay is unacceptable because it prejudiced the
applicants. The issue was important to the applicant and to
their
political rights. They created the alleged mootness. It will be
incorrect to punish the applicant. Justice must be done and
also seen
to be done. The issue of the two African National Congress raised in
the broadcast of 2014 was recently repeated during
the recent
municipal elections.
[30]
The conduct of the respondents deserves to be sanctioned. The only
sanction this court can imposed is in the form of costs
[31]
In the circumstances the Complaints and Complaints Committee decision
is found to be irrational, unreasonable. The Committee
and its
chairman relied on irrelevant consideration. It applied wrong
standard. In essence it censored the advertisement and by
the same
token infringed the applicant’s freedom of expression and
curtailed illegally its political rights. Accordingly
I make the
following order:
1.
The decision of the Complaints and
Compliance of 25 April 2014 declaring the advertisement of the
Applicant to be in breach of the
Regulation and or Code is hereby
reviewed and set aside.
2.
The First, the Second, the Third and Fourth
Respondents are ordered to pay the costs of this application
including the costs incurred
during the hearing before the CCC
jointly and severally, the one paying the others to be absolved.
3
The costs referred in order 2 above shall include the costs of two
counsel.
RE
MONAMA
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
Appearances.
For
the Applicant: Adv S Budlender, and
Adv
N Ferreira.
Instructed
by: Minde Shapiro Smith Inc
Bellville,
Cape Town, and
Christodoulou
and Mavrikis Inc
Illovo,
Johannesburg.
For
the Respondents : Adv. CM Erasmus SC, and
Adv.
M Naidoo.
Instructed
by: Makhubela Attorneys,
Brooklyn,
Pretoria, and
Selebogo
Inc, Johannesburg.
Date
of hearing: 1 August, 2016.
Date
of judgment: 9 September 2016.
[1]
See Para1 of Annexure FA3 on page 59 of the record.
[2]
See
Para4 of Annexure FA3 on page 60 of the record.
[3]
See Para3.3 of Annexure FA3 on page 69 of the record.
[4]
See para1.4 of Annexure FA3 on page 68 of the record.
[5]
Director
General Department of Home Affairs v Mukhamadiva 2014(3) BCLR 306 CC
at Paragraph 33 – 37.
[6]
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000(2) SA 1 CC at Paragraph 21.
[7]
Independent
Electoral Commission v Langenberg Municipality 2001(3) SA 925(CC).
[8]
Act
13 of 2000 which came into operation on 11 May 2000.
[9]
See Section 4 of Act 13 of 2000.
[10]
Act
4 of 1999.
[11]
Act
36 of 2005
[12]
Report on the protection and viability of public broadcasting
services: cross media control of broadcasting services and local
television content and South Africa music- Independent Broadcasting
Authority (1995) at 40.
[13]
Cool Ideas 1186 CC v Hubbard and Another 2014(4) SA 474 (CC) at para
28.
[14]
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009(1) SA 337
(CC) at 356 C - F 46 and Investigative Directorate: Serious
Economic
Offences and Others v Hyundai Motor Distributors (Pty)
Ltd And Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC) at paras 21-26
[15]
Sections 39 and 233 of the Constitution in interpreting the bill of
rights provision and legislation respectively.
[16]
Midi
Television t/a Etv v Director of Public Prosecutions 2007(5)SA 540
SCA at 548 A-D.
[17]
See S v Trainor 2003(1) SACR 35 SCA 35 at41 A-C
[18]
The Criminal Procedure Act.
[19]
See
all the areas mentioned by the respondent on pages 70 – 71 of
the record.
[20]
Democratic
Alliance v African National Congress 2015(2)SA 233 CC.
[21]
Kham
v Electoral Commission of South Africa
(2015) ZACC 37
of 30 November
2015.
[22]
See section 4 of Act 13 of 2000.
[23]
See
Paragraphs 4 and 5 of the record on page 179.
[24]
Paragraph
47 on page 208 of the record.
[25]
See
pages 68 -69 of the record.
[26]
Council
for Medical Scheme and Another v Selfmed Medical Scheme and Another
(2011)ZASCA 207 (25 November 2011).
[27]
Vajnai
v Hungary App. No. 33629/06 (EctHR 8, July 2008) at paragraph 57.
See also paragraph 53 of same citation and Fratanolo
v Hungary App
No. 29459/10 (EctHR 3 November 2011).
[28]
[2015]
ZACC 37
(30 November 2015).