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[2021] ZASCA 103
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Electoral Commission of South Africa v Democratic Alliance and Others (1068/2019) [2021] ZASCA 103; 2021 (5) SA 476 (SCA); [2021] 4 All SA 52 (SCA) (23 July 2021)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No:1068/2019
In
the matter between:
THE ELECTORAL
COMMISSION
OF
SOUTH
AFRICA
APPELLANT
and
THE
DEMOCRATIC ALLIANCE
FIRST
RESPONDENT
THE
GOOD PARTY
SECOND
RESPONDENT
THE
AFRICAN NATIONAL CONGRESS THIRD
RESPONDENT
Neutral
citation:
Electoral
Commission of South Africa v Democratic Alliance and Others
(1068
/2019)
[2021] ZASCA 103
(23 July 2021)
Coram:
MAYA P,
ZONDI
AND SCHIPPERS JJA AND GOOSEN AND SUTHERLAND AJJA
Heard:
11 September 2020
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
12h00 on 23 July 2021.
Summary:
Elections
–
Electoral
Act 73 of 1998 (EA) – prohibition on persons publishing false
information in s 89(2) to influence outcome of election
– Code
of Conduct in Schedule 2 to EA – item 9(1)
(b)
– prohibition on parties and candidates publishing false or
defamatory allegations – Electoral Commission Act 51 of
1996
(ECA) – powers of the Electoral Commission – s 5(1)
(o)
of ECA – limited to adjudication of disputes of administrative
nature – alleged contravention of Code – member
of
political party fired – not a dispute of administrative nature
– Electoral Commission has no jurisdiction to determine
a
complaint of a contravention of Code or to impose a remedy therefor.
ORDER
On
appeal from:
The Electoral Court of
South Africa, Johannesburg, Wepener J (Mbha JA, Lamont J and S
Pather (member) concurring):
The
appeal is dismissed.
JUDGMENT
Schippers
JA
(Maya P
,
Zondi JA and Sutherland and Goosen AJJA
concurring):
[1]
The central issue raised by this appeal,
which is with the leave of the Electoral Court, concerns the powers
of the appellant, the
Electoral Commission of South Africa (the
Commission). More specifically, it is whether the Commission is
empowered to make a finding
that a provision of the Code of Conduct
(the Code) contained in Schedule 2 to the Electoral Act 73 of 1998
(the
Electoral Act), has
been contravened and to impose a sanction
for the contravention.
[2]
The matter arises from a complaint lodged
with the Commission on 2 March 2019 by the second respondent, the
Good Party, that the
first respondent, the Democratic Alliance (DA),
had contravened
s 89(2)
of the
Electoral Act and
item 9(1)
(b)
of the Code in the run up to the national and provincial elections
held on 8 May 2019. The Good Party alleged that the DA had published
false information with the intention of influencing the outcome of an
election, and false and defamatory allegations concerning
its leader,
Ms Patricia De Lille.
[3]
The third respondent, the African National
Congress (ANC), is not a party to the appeal. It had been joined as a
party in an application
launched by the DA in the Electoral Court, to
review and set aside the Commission’s decision on the Good
Party’s complaint,
as well as its decision not to investigate a
complaint by the DA against the ANC, lodged on 24 March 2019. The
DA alleged
that the ANC had falsely stated that the DA had ‘made
a profit of R1 billion’ from water tariffs in the City of Cape
Town, which was a contravention of item 9(1)
(b)
of the Code and
s 94
of the
Electoral Act. The
Commission concluded
that the DA’s complaint ‘can only be decided by a court
of law as it will be best placed to make
a determination on the
alleged violation of the provisions of both the
Electoral Act and
the
Code’. In its answering affidavit in the review application the
Commission undertook to investigate the complaint against
the ANC,
which rendered the relief sought by the DA academic.
Facts
[4]
The basic facts are uncontroversial. It is
common ground that Ms De Lille is a former member of the DA and that
it had prepared
a document entitled, ‘[t]he guidelines of the
call-centre campaigners of the Democratic Alliance’ (the
guidelines),
used by its party agents, call-centre operators and
campaigners when canvassing for votes for the DA. The guidelines
contained
standard responses to questions raised by voters as to why
they should vote for the DA and the reason for Ms De Lille’s
exit
from the party.
[5]
The guidelines, in relevant part, read:
‘
[STANDARD
RESPONSES TO BE USED]
“
Why
should I vote for the DA”
. . .
“
Infighting
/ you fired PDL”
We
fired Patricia de Lille because she was involved in all sorts of
wrongdoing in the City of Cape Town. The DA doesn’t allow
corruption, and we’ll take action against anyone, even our own
members.’
[6]
In her letter of complaint dated 2 March
2019, Ms De Lille alleged that these statements were a contravention
of
s 89(2)
of the
Electoral Act, which
proscribes the
publication of false information with the intention of influencing
the outcome of an election, and that they were
also false and
defamatory and a breach of item 9(1)
(b)
of the Code. She said:
‘
1.
I was not fired by the DA. I resigned from the DA with effect from 31
October 2018.
The DA attempted to “fire” me but their
conduct, in so doing, was found to be unlawful and set aside by order
of the
Western Cape High Court.
2.
I have not been involved in any wrongdoing nor has any court or any
other appropriate
forum found me guilty of any wrongdoing.
3.
I am not corrupt, have not been involved in
any corrupt activities, and have never been accused of, or found
guilty of, any corrupt
activities.’
In
what follows, I refer to the words complained of and these
allegations as ‘the complaint’.
[7]
The
complaint was lodged, Ms De Lille said, because the DA’s
conduct interfered with the holding of free and fair elections,
and
undermined tolerance of democratic political activity, free political
campaigning and open public debate. It had also caused
immeasurable
damage to her reputation, and was intended to undermine her candidacy
and election prospects, and those of her party.
[8]
On 29 March 2019 the DA responded to the
complaint. Its response was essentially that the statements
complained of did not ‘threaten
the mechanics of the conduct of
the 2019 election’, and did not violate
s 89(2)
of the
Electoral Act or
item 9(1)
(b)
of the Code. The statement that Ms De Lille ‘was involved in
all sorts of wrongdoing’ was a comment based on notorious
facts
regarding Ms De Lille’s tenure as Mayor of the City of Cape
Town (the City).
[9]
The facts concerning Ms De Lille’s
tenure as Mayor, in summary, were these. The DA had repeatedly tried
to force Ms De Lille
out of the mayoral seat and the party. Indeed,
this is common ground. In late 2017 the DA brought disciplinary
proceedings against
her on charges of intimidation, criminality and
misconduct. On 24 January 2018 the DA caucus in the City passed a
motion of no
confidence in Ms De Lille. This led to a motion of no
confidence in the City Council. Ms De Lille survived the motion by
one vote.
[10]
On 8 April 2018 the DA amended its
constitution by adding a clause to allow it to remove a member if he
or she refused to resign
after a caucus motion of no confidence.
Subsequently, the DA invoked the new clause and demanded that Ms De
Lille provide reasons
why she should not be forced to resign. On 25
April 2018 the DA caucus again adopted a motion of no confidence in
Ms De Lille.
[11]
On
8 May 2018 the DA took a decision to expel Ms De Lille from the
party, which would have resulted in the loss of her position
as
Mayor. However, she successfully challenged that decision in the
Western Cape High Court.
[1]
In
the course of those proceedings the City Council voted on 31 May 2018
to strip Ms De Lille of her executive powers.
[12]
Another motion of no-confidence in Ms De
Lille as Mayor was tabled for resolution on 26 July 2018. A day
before the motion was going
to be debated, the DA and Ms De Lille
entered into a settlement agreement in terms of which Ms De Lille
agreed to resign as Mayor
by 31 October 2018, which she did. In
exchange for her resignation, the DA did not proceed with the pending
disciplinary charges
against her.
[13]
By letter dated 15 April 2019, the
Commission informed the parties of its decision on the complaint. It
stated that the question
as to whether
s 89(2)
of the
Electoral Act
had
been contravened was ‘a matter for the courts to decide’.
It decided that the DA had contravened item 9(1)
(b)
of the Code, solely on the basis that the statement that Ms De Lille
had been fired (the impugned statement), was false. The Commission
said:
‘
With
respect to the statement made by the DA that Ms De Lille was “fired”,
the Commission finds that the statement is
false. This finding is
based on the agreement concluded between the parties on 4 August 2018
and the resignation letter of Ms De
Lille, dated 3 August 2018.
Furthermore, the DA, in his own submissions, dated 20 March 2019
admitted that:
“Ms De Lille resigned as Mayor in exchange for the DA dropping
the disciplinary charges against her”.’
[14]
I
interpose to say that on the facts, this conclusion was incorrect.
The majority judgment in
DA
v ANC
(Cameron J, Froneman J and Khampepe J) held that because
s 89(2)
of
the
Electoral Act and
item 9(1)
(b)
of the Code limit the right to freedom of expression and impose
severe penalties on those who breach them, in case of doubt they
must
be interpreted restrictively. Any ambivalence in them or uncertainty
about their meaning, must be resolved ‘against
the risk of
being penalised’.
[2]
In
the New Shorter Oxford English Dictionary,
[3]
the word ‘fired’ is defined as including, ‘Expel (a
person) forcibly; dismiss, discharge’. Ms De Lille
obviously
was not an employee. So, a person to whom the impugned statement was
published could never conclude that she had been
discharged or
dismissed in that sense. But what is clear, as a statement of fact,
is that Ms De Lille was forcibly expelled from
her position as Mayor
and member of the DA. Stated differently, she had no real choice but
to resign. If she had not, the DA would
have proceeded with the
disciplinary charges of intimidation, criminality and misconduct
against her. Ms De Lille was forcibly
expelled from or fired by the
DA.
[15]
The Commission found that the statements
that Ms De Lille ‘was involved in all sorts of wrongdoing in
the City of Cape Town’,
and that ‘the DA doesn’t
allow corruption’, constituted opinion or comment. These
allegations had to be verified
and could not be said to be false. The
DA had in fact charged Ms De Lille with corruption and wrongdoing,
but the internal disciplinary
proceedings brought against her were
terminated because the charges had been withdrawn by the DA in
exchange for her resignation.
[16]
The Commission issued the following
directions:
‘
REMEDIES
(a)
In light of the above-mentioned findings, the Commission has invoked
item 7(c) of
the Electoral Code of Conduct which provides that:
“
Every
registered party and every registered candidate must give effect to
any lawful direction, instruction or order of the Commission
or a
member, employee, office of the Commission or the chief electoral
officer.”
Accordingly, the
Commission directs the DA:
(b)
to cease and desist from making any further false statements in
relation to Ms De
Lille being “fired” from the DA.’
(c)
to issue a public apology for the false statement published in
respect of Ms De Lille
being “fired” within three (3)
days of the receipt of this letter.’
[17]
On 18 April 2019 the DA launched an
application in the Electoral Court to review and set aside the
Commission’s decision that
it had violated item 9(1)
(b)
of the Code, and its decision to grant the Good Party a remedy. The
DA contended that the Commission’s decision was unlawful
because the impugned statement was ‘both fair comment and
factually true’. The term ‘fired’ meant that
the DA
‘got rid of’, ‘pushed out’, ‘removed’
or ‘dismissed’ Ms De Lille. It was
a general term used to
indicate that the DA had forced her to resign as Mayor.
[18]
The DA alleged that the impugned statement
was a comment based on the facts relating to Ms De Lille’s
tenure as Mayor of the
City of Cape Town, outlined above. The DA said
that she had resigned ‘in response to enormous pressure to do
so from the
DA and under threat of disciplinary sanction’.
[19]
Concerning the powers of the Commission,
the founding affidavit states that
s 95(1)
of the
Electoral Act and
item 7
(f)
of the Code, read together, authorises the Commission to conduct an
investigation to establish whether
s 89(2)
or item 9(1)
(b)
of the Code has been violated and to make a finding in that regard.
Section 95(1)
empowers the chief electoral officer to institute civil
proceedings before a court, including the Electoral Court, to enforce
a
provision of the Act or the Code. Item 7
(f)
of the Code requires every registered party and every candidate ‘to
co-operate in any investigation of the Commission’.
[20]
The
founding affidavit further states that the Commission ‘may not,
however, make a binding recommendation based on such a
finding
without approaching the Electoral Court’, for the following
reasons. It has no such power under the
Electoral Act or
the Code.
When the Act grants the Commission the power to make a binding order
without recourse to the Electoral Court, it does
so expressly. In
terms of the statutory framework, the power to enforce the Act or the
Code lies with the courts. The Commission
does not have the power to
hand down binding rulings, since such a power would undermine public
perceptions of its independence.
The Rules Regulating Electoral
Disputes and Complaints about Infringements of the Electoral Code of
Conduct and Determination of
Courts having Jurisdiction (the
Rules),
[4]
contain detailed
provisions to ensure compliance with the
audi
alteram partem
principle. And the scope of the Commission’s power to issue
binding directives must be interpreted restrictively.
[21]
The Commission opposed the application but
did not seek a costs order. The basis of its opposition was that the
impugned statement
was one of fact. It denied that the statement had
to be understood ‘broadly and metaphorically’ as alleged
by the DA.
It claimed that the DA did not lay a proper basis for the
conclusion that the statement was true. The Commission contended that
it had the power to impose the relevant sanction, and that the
separation of investigative and remedial powers between the
Commission
and the courts respectively, as submitted by the DA, was
inconsistent with the scheme of the electoral legislation and
regulations,
designed to ensure the speedy resolution of complaints.
The Electoral Court’s
findings
[22]
The Commission relied on s 190 of the
Constitution, s 5(1)
(o)
of the Electoral Commission Act 51 of 1996 (the ECA) and item 9(1)
(b)
of the Code as the source of its power for the decision that the DA
had contravened the Code and the sanction imposed. The Electoral
Court held that s 190 of the Constitution, which deals with the
establishment and obligations of the Commission, ‘does not
create the power the Commission sought to use’. The court said
that the power to adjudicate disputes arising from ‘the
organisation, administration or conducting of elections and which are
of an administrative nature’ envisaged in s 5(1)
(o)
of the ECA, means that the Commission
‘may adjudicate disputes regarding the mechanics of an
election’. The Commission
had no power to adjudicate an issue
which was not administrative in nature. Neither the empowering
statute nor the Code provide
for any remedies that the Commission may
enforce. This was a further indication that the Commission had no
power to grant the remedies
that it did.
[23]
The
court said that the impugned statement was one made by a political
party against an individual and was within the realm of free
speech.
It referred to the majority judgment in
DA
v ANC
,
[5]
in which it was held that the primary purpose of s 89(2)
(c)
of the
Electoral Act is
‘to protect the mechanics of the
conduct of an election’; that the prohibition on disseminating
false information concerns
‘election-related information’;
and that the kind of false statements prohibited include those that
‘intrude
directly against the practical arrangements and
successful operation of an election.’ The court held that it
did not matter
whether the impugned statement was false, since item
9(1)
(b)
was ‘not applicable as the statement does not impact on the
mechanics or conduct of an election’.
[24]
The court stated that where the
Electoral
Act empowered
the Commission to decide an issue, it did so in
specific terms. There is no express power conferred on the Commission
to enforce
item 9(1)
(b)
.
This led to the conclusion that the Commission did not have such
power. Consequently, the court concluded that decisions of the
Commission were invalid and had to be set aside.
[25]
The Electoral Court issued the following
order:
‘
1.
The decision of the Commission that the statement made by the DA that
Ms De Lille was
“fired” was false, is reviewed and set
aside.
2.
The decision of the Commission that the applicant acted in violation
of item
9(1)
(b)
of the Electoral Code of Conduct is reviewed
and set aside.
3.
The remedies imposed by the Commission consequent upon its aforesaid
decisions
are reviewed and set aside.
4.
There is no order as to costs.’
The powers of the
Commission
[26]
The source of the Code and the obligation
of political parties to comply with it is the
Electoral Act. What
then does the
Electoral Act say
about breaches of the Code? The
answer is that there are three provisions dealing specifically with
contraventions of the Code.
The most serious is s 97 of the Act,
which renders a breach a criminal offence, subject to the substantial
penalties set out in
s 98. Then there are the administrative
penalties provided under s 96 of the
Electoral Act. These
can be
imposed by various courts, designated for that purpose by the
Electoral Court under the mechanism for determining complaints
of
contraventions in terms of
s 20(4)
of the ECA, read with the Rules
made by the Court. Finally, the Commission is empowered to try and
conciliate a complaint of a
breach of the Code under
s 103A
of the
Electoral Act.
[27
]
Only the last of these vests specific
powers in the Commission, and those are not powers of determining
complaints and granting
remedies. The chief electoral officer is
entitled in terms of
s 95
of the
Electoral Act to
institute civil
proceedings before a court, including the Electoral Court, to enforce
a provision of the Act. Although not expressly
provided, it would
also be open to the Commission to lay criminal charges arising out of
contraventions of the Code. But none of
these provisions empowered
the Commission to act as it did in this case.
[28]
Counsel
for the Commission submitted that s 190(1) and (2) of the
Constitution, in terms of which the Commission is enjoined to
manage
elections and is granted additional powers prescribed by national
legislation,
[6]
it had both the
power to determine a complaint concerning a breach of the Code and to
take remedial action in that regard. Alternatively,
and at worst for
the Commission, so it was submitted, it has the power to determine
whether a complaint regarding a breach of the
Code is well-founded.
[29]
Counsel
for the DA contended that on receiving a complaint, the Commission
may investigate whether a party or candidate has contravened
item
9(1)
(b)
of the Code. After an investigation, it is empowered to make a
finding as to whether the Code has been contravened and to decide
what further steps, if any, should be taken under the
Electoral Act.
The
source of this power, it was argued, was the Commission’s
functions in
s 5
of the ECA to ensure that elections are free and
fair,
[7]
and to promote
conditions conducive to free and fair elections,
[8]
s 95(1)
of the
Electoral Act and
item 7
(f)
of the Code.
[30]
The
reliance on s 190(1) and (2) of the Constitution was misplaced for
the simple reason that the Commission said it made its finding
that
the DA had contravened the Code, ‘in the exercise of its
administrative adjudicative powers’ purportedly in s
5(1)
(o)
of the ECA. When taking the remedial action, the Commission
ostensibly acted in terms of item 7
(c)
of the Code. A decision deliberately and consciously taken under the
wrong statutory provision cannot be validated by the existence
of
another statutory provision authorising that action,
[9]
be it the Constitution or other legislation. For the same reason, the
Commission’s reliance in its answering affidavit on
ss 99
,
100
,
103
and
103A
of the
Electoral Act in
support of its assertion that
national legislation conferred on the Commission additional powers to
‘compile, issue and enforce
the Code’, was misconceived.
In any event, none of those provisions ground the power to make a
finding that the Code has
been contravened or to take remedial action
under it.
[31]
Secondly,
the Commission is precluded from relying directly on the Constitution
by the principle of subsidiarity: where legislation
has been enacted
to give effect to a constitutional right, a litigant must either rely
upon that legislation or challenge its constitutionality.
It cannot
bypass legislation and rely directly upon the right.
[10]
The
Electoral Act and
the ECA give effect to the right to free and
fair elections enshrined in s 19(2) of the Constitution, to which the
Commission’s
functions under s 190(1) of the Constitution are
inextricably linked.
[11]
[32]
Whether the Commission has the power to
make a finding that the Code has been contravened must be sourced in
the ECA or the
Electoral Act. The
powers and functions of the
Commission are set out in
s 5
of the ECA. For present purposes only
s
5(1)
(o)
of
the ECA – the only provision in the electoral legislation which
authorises the Commission to adjudicate disputes –
is relevant.
The question is whether the complaint falls within the ambit of
disputes that ‘arise from the organisation,
administration or
conducting of elections and which are of an administrative nature’.
[33]
A
complaint that a political party has breached item 9(1)
(b)
of the Code by publishing false or defamatory allegations about the
candidate of another party, plainly is not a dispute of an
administrative nature within the meaning of
s 5(1)
(o)
of the ECA. The complaint does not pertain to the management of
affairs,
[12]
nor the
arrangements and work needed to control the operation of an
organisation.
[13]
It has
nothing to do with the management, organisation or administration of
an election. Neither does it relate to the electoral
or regulatory
framework necessary for the process of conducting elections. The
Electoral Court was thus correct to hold that the
conduct complained
of was not a dispute of an administrative nature.
[34]
In my view,
s 5(1)
(o)
is a powerful indicator that Parliament did not intend to confer on
the Commission the power to adjudicate disputes concerning
a
contravention of the Code. If that was the intention, such power
would have been expressly granted in the ECA. Instead, the
Commission’s power to adjudicate disputes is strictly
circumscribed. This interpretation is buttressed by the provisions of
item 103A of the Code. It expressly authorises the Commission to
resolve a complaint by conciliation, not adjudication. Item 103A
provides:
‘
Conciliation
in disputes and complaints
– The
Commission may attempt to resolve through conciliation any electoral
dispute or complaint about an infringement of
the Code brought to its
notice by anyone involved in the dispute or complaint.’
[35]
Given the Commission’s basic duty to
manage elections and to ensure that they are free and fair, and the
fact that the Commission
is generally the first port of call for a
complaint, the purpose of item 103A is not surprising. It is a
sensible and workable
provision. This case illustrates the point. The
answering affidavit states:
‘
[T]he
Commission also believes (on the basis of its experience from 1994 to
date) that the principle of attempting to address a
party’s
concerns in party liaison committees and by encouraging conciliation
in the exercise of its powers under
s 103
and
103A
read with
s
5(1)(a)
-(c) is, in the South African context, appropriate . . .
‘
Consequently,
the Commission has only referred one matter in terms of the breach of
section 89
and the Code, to the Electoral Court – that was in
the course of the 2016 local government and municipal elections . . .
.’
[36]
It follows that
s 7
(f)
of the Code, which obliges parties and candidates ‘to
co-operate in any investigation by the Commission’, does not
vest the Commission with the power to make a finding that the Code
has been breached. Item 7 contains general provisions concerning
the
role of the Commission in the conduct of free and fair elections. It
enjoins parties and candidates, inter alia, to recognise
the
Commission’s authority; to assure voters of its impartiality;
to maintain effective lines of communication with the Commission
and
other registered parties; and to facilitate access by members,
employees and officers of the Commission, and the chief electoral
officer to public meetings, rallies and other public political events
of parties or candidates.
[37]
It is within this context that the
obligation in item 7
(c)
of the Code ‘to give effect to any lawful direction,
instruction or order of the Commission, or a member, employee or
officer
of the Commission, or the chief electoral officer’,
must be understood. And the injunction in item 7
(f)
to co-operate in an investigation by the Commission is hardly
surprising – a power of investigation is necessary for the
resolution of disputes by conciliation in terms of item 103A of the
Code.
[38]
The
principle of legality, an aspect of the rule of law, requires that a
body exercising a public power must act within the powers
lawfully
conferred on it.
[14]
The
exercise of public power must not be arbitrary or irrational.
[15]
The Constitutional Court has described the principle of legality as
the ‘bedrock of our constitutional dispensation’.
[16]
The Commission violated this principle when it decided that the DA
had breached the Code, and imposed a sanction therefor.
[39]
The
scheme of Chapter 7 of the
Electoral Act, in
my view, places it
beyond question that the Commission has no power to decide that there
has been a contravention of the provisions
of
Part 1
of Chapter 7, or
item 9 of the Code, or to impose any sanction for such contravention.
That power may only be exercised by courts
having jurisdiction in
terms of s 20(4) of the ECA.
[17]
[40]
The Electoral Court, in terms of
s 20(4)
of
the ECA, has determined that a magistrate’s court or high court
in whose area of jurisdiction any electoral dispute or
complaint
about an infringement of the Code has arisen, has jurisdiction to
hear such complaint. That determination was made in
the Rules.
[41]
Sections 87
to
93
of the
Electoral Act list
various forms of prohibited conduct during the holding of elections.
Section 99
provides that every registered party and candidate must
subscribe to the Code before the party may be allowed to contest an
election,
or the candidate placed on a list of candidates. In terms
of
s 94
, ‘No person or registered party bound by the Code may
contravene or fail to comply with a provision of that Code’.
All these provisions are clearly vital to the conduct of free and
fair elections.
[42]
In
terms of
s 95(1)
, the chief electoral officer, the head of the
administration of the Commission,
[18]
‘may institute civil proceedings before a court, including the
Electoral Court, to enforce a provision of this Act or the
Code’.
Section 95(1) does no more than authorise the Commission itself to
approach a court to compel compliance with the
Act or Code. It does
not, as stated in the founding affidavit, authorise the Commission
‘to approach a court having jurisdiction
for an “appropriate
penalty or sanction”, including one of the orders itemised in
section 96(2)
of the
Electoral Act’ after
it has found a
contravention of the Code.
[43]
Consistent
with
s 95(1)
of the
Electoral Act, s
96(2) confers on
courts
having
jurisdiction the power to impose any appropriate penalty or sanction
on a person or party for a contravention of
Part 1
of Chapter 7 of
the Act, including the sanctions listed in s 96(2).
[19]
These sanctions, which include prohibiting a person or party from
using any public media, holding public events or canvassing or
electoral advertising, reducing the number of votes obtained by the
person or party, or disqualifying the person’s or party’s
candidature entirely, have been described in the majority judgment in
DA
v ANC
as
‘very tough’.
[20]
And they may be imposed in addition to any criminal penalty provided
for in Part 3 of Chapter 7.
[21]
[44]
Part 3 lists the offences and penalties in
relation to the prohibited conduct. Section 97 states that any person
who contravenes
a provision of Part 1 – which includes s 94 –
is guilty of an offence. Section 98 provides that any person
convicted
of any offence, inter alia, in terms of s 89(2) or s 94, is
liable to a fine or imprisonment for a period up to 10 years.
[45]
The
plain wording, context and purpose of the provisions of Chapter 7 of
the
Electoral Act,
[22
]
and in
particular
ss 97
and
98
, in my opinion, illustrate the manifest
absurdity of an interpretation that the Commission is empowered to
make a finding that
the Code has been contravened, and to grant a
remedy for such contravention.
Rule 2(4)
of the Rules provides that
the offences referred to in
Part 1
of Chapter 7 ‘are dealt with
in accordance with the legislation applicable to criminal matters’.
It would mean that
the Commission effectively has the power to
determine that a person is guilty of an offence. Such an
interpretation would also
cut across the carefully crafted procedure
to enforce Chapter 7 of the
Electoral Act and
the Code. An
interpretation that renders a statutory provision or indeed an entire
statutory scheme, pointless, must be avoided.
[23]
[46]
Contrary to the Commission’s
assertion that absent the power to ‘order a party to do
anything’ consequent upon
a breach of the Code, the Commission
is rendered ‘toothless’, the legislative scheme not only
enables the Commission
to compel compliance with the Code, but also
creates an expedited and effective procedure for the adjudication of
complaints.
[47]
As
stated, in terms of the Rules, magistrates’ courts, high courts
and the Electoral Court have jurisdiction to hear electoral
disputes
and complaints about infringements of the Code.
[24]
A party may approach a court directly in respect of any electoral
dispute or complaint about the infringement of the Code.
[25]
Proceedings are instituted by way of application.
[26]
Answering affidavits must be delivered three days after an
application is lodged.
[27]
Replying affidavits are due two days later.
[28]
The matter is then set down on an urgent basis.
[29]
The presiding officer may curtail these already short time periods
even further if the matter is particularly urgent.
[30]
[48]
To sum up. The Commission has no power
under s 190 of the Constitution or s 5(1)
(o)
of the ECA, to make a finding that the
Code has been contravened. Item 7
(c)
of the Code does not confer on the Commission any power to impose a
sanction for a breach of the Code. At best, the Commission
is
empowered, in terms of
s 103A
of the
Electoral Act, to
resolve a
complaint about an infringement of the Code through conciliation.
[49]
Item 94 of the Code states that no person
or registered party may contravene the Code or fail to comply with
its provisions.
Section 97
of the
Electoral Act makes
this an offence
subject to a fine or imprisonment for a period not exceeding 10
years. Therefore, only a criminal court has the
power to decide
whether a provision of the Code has been contravened and to impose a
sanction for such contravention. The Commission
has no power to do
so.
A decision on the
proper construction of item 9(1)
(b)
is inappropriate
[50]
There is one final issue: the Electoral
Court’s interpretation of item 9(1)
(b)
of the Code, more specifically that it was inapplicable because the
impugned statement did not impact on the mechanics or conduct
of an
election, in accordance with the holding in
DA
v ANC
. Item 9(1)
(b)
,
which applies only to registered parties and candidates, reads:
‘
Prohibited
conduct
– (1) No registered party
or candidate may–
(b)
publish false or defamatory allegations in
connection with an election in respect of–
(i) a
party, its candidates, representatives or members; or
(ii)
the candidate or that candidate’s representatives;’
[51]
The Commission criticised the Electoral
Court’s finding on the ground that
DA
v ANC
was no basis for it, and
requested this Court to decide the proper interpretation of item
9(1)
(b)
of
the Code, since it is of considerable importance to the Commission,
political parties and the general public. It was also submitted
that
certainty and finality on the proper construction of item 9(1)
(b)
is essential, given the inevitability of future elections.
[52]
The request must be declined. This Court
has found that the Commission was not empowered to decide that the DA
had contravened item
9(1)
(b)
of the Code and to grant the Good Party a remedy. A decision on the
proper construction of item 9(1)
(b)
,
in my opinion, would be tantamount to furnishing an advisory opinion
to litigants on an issue no longer in dispute between them.
It would
not be definitive of the powers of the Commission, nor the rights of
political parties and candidates under the Code.
An advisory opinion
adjudicates nothing and is not binding. More than a century ago Innes
CJ said:
‘
Courts
of Law exist for the settlement of concrete controversies and actual
infringements of rights, not to pronounce upon abstract
questions, or
to advise upon differing contentions, however important.’
[31]
[53]
What is not an abstract question in my
view, however, is whether it has been decided that the prohibition on
false information in
s 89(2)
of the
Electoral Act or
item
9(1)
(b)
of
the Code, is confined to ‘the mechanics or conduct of an
election’, as found by the Electoral Court. In
DA
v ANC
the complaint was that an SMS
sent out by the DA which stated, ‘The Nkandla report shows how
Zuma stole your money to build
his R246m home’, was a
contravention of
s 89(2)
and item 9(1)
(b)
.
[54]
The majority in
DA
v ANC
described the main issue thus:
‘
The
primary task is to ascertain what kinds of “information”
and “allegations” are hit by the prohibition
in section
89(2) of the Act and item 9(1)
(b)
of the Code. Are they only factual statements, or do they include
expressions of opinion?’
[32]
[55]
The judgment contains obiter remarks about
the opportunity during election times to refute statements, not
directed at the conduct
of elections, but its outcome by influencing
voters’ views about opposing parties. The majority stated that
it was arguable
that this kind of ‘information’ did not
fall within the prohibition in s 89(2), but was of the kind that
could
immediately be refuted in public debate, at political rallies,
or in the print or electronic media. Then the majority concluded:
‘
But
we need not go that far. For the moment all we need to say is that
section 89(2)’s prohibition does not apply to opinion
or
comment, but only to statements of fact. On its own terms, the
section does not prohibit comments. It prohibits only “false
information”. “Information” means only factual
statements, not comments.’
[33]
[56]
Consequently,
the majority judgment in
DA
v ANC
does
not hold that the prohibition on false information in
s 89(2)
of
the
Electoral Act or
item 9(1)
(b)
of
the Code, has no application beyond statements regarding ‘the
mechanics of the conduct of an election’.
[34]
The majority specifically declined to decide this issue.
[57]
But
the case also illustrates the complexities in the construction of
provisions such as
s 89(2)
of the
Electoral Act and
item 9(1)
(b)
of
the Code, implicating as they do, fundamental rights such as freedom
of expression and the limits on that right, and the right
to vote and
stand for public office.
[35]
This, in a country where political life ‘has seldom been
polite, orderly and restrained’, but ‘loud, rowdy and
fractious’.
[36]
Five
justices of the Constitutional Court held that
s 89(2)
and item
9(1)
(b)
are
not aimed at comments or opinions, and that it was unnecessary to
decide whether the statement complained of was false.
[37]
Two justices concluded that that in order for the statement to be
false it had to ‘describe a readily falsifiable state of
affairs which poses a real danger of misleading voters and
undermining the right to a free and fair election’.
[38]
It was ‘an election punchline’ and it did not contain
false information.
[39]
These
conclusions were arrived at in the context of a real dispute. It is
even more perilous to decide issues of interpretation
in the
abstract.
[58]
The
DA asked for an order granting it the costs of the appeal because the
Commission had acted unlawfully and the party was compelled
to come
to court to correct the illegality. However, it has been demonstrated
that the DA’s interpretation of the relevant
statutory
provisions is unsustainable. In
Competition
Commission v Pioneer Hi-Bred
,
[40]
the Constitutional Court said that when a state actor is litigating
in the course of fulfilling its statutory duties, it should
not be
inhibited in the bona fide fulfilment of its mandate by the threat of
an adverse costs award. This is such a case. Moreover,
it is
undesirable that matters involving the conduct of elections should be
decided without the benefit of the views of the Commission.
[41]
For these reasons, there should be no order as to costs.
[59]
In the result the appeal is dismissed.
A SCHIPPERS
JUDGE
OF APPEAL
APPEARANCES
For appellant: S
Budlender SC and N Luthuli
Harris Nupen Molebatsi
Inc
Johannesburg
c/o
Webbers Attorneys, Bloemfontein
For first respondent: M
Bishop and P Olivier
Minde Shapiro & Smith
Inc, Cape Town
Symington De Kok
Attorneys
Bloemfontein
[1]
The
case is reported as
De
Lille v Democratic Alliance
[2018] 3 All SA 684 (WCC).
[2]
Id
paras
127-129 and 193.
[3]
W
R Trumble and A Stephenson
The
New Shorter Oxford English Dictionary
5 ed (2002) vol 1 at 963.
[4]
The
‘Rules Regulating Electoral Disputes and Complaints about
Infringements of the Electoral Code of Conduct in Schedule
2 of the
Electoral Act, 1998 (Act No. 73 0F 1998) and Determination of Courts
Having Jurisdiction, published under GN 2915,
GG
19572,
4 December 1998.’
[5]
Democratic
Alliance v African National Congress and Another
[2015]
ZACC 1
;
2015 (2) SA 232
(CC) para 138.
[6]
Section
190 of the Constitution provides:
‘
(1)
The Electoral Commission must–
(a)
manage elections of national,
provincial and municipal legislative bodies in accordance with
national legislation;
(b)
ensure that those elections are free
and fair; and
(c)
declare the results of those elections
within a period that must be prescribed by national legislation and
that is as short as
reasonably possible.
(2) The Electoral
Commission has the additional powers and functions prescribed by
national legislation.’
[7]
Section
5(1)
(b)
of the
Electoral Commission Act (the
ECA).
[8]
Section
5(1)
(c)
of the ECA.
[9]
Minister
of Education v Harris
2001
(4) SA 1297
(CC) paras 16-18;
Howick
District Landowners’ Association v Umgeni Municipality
and
Others
[2006] ZASCA 153
;
2007 (1) SA 206
(SCA) paras 21-22.
[10]
My
Vote Counts NPC v Speaker of the National Assembly
[2015]
ZACC 31
;
2016 (1) SA 132
(CC) paras 160-161 (per Khampepe J) and
paras 44-66 (per Cameron J).
[11]
New
National Party v Government of the Republic of South Africa
and
Others
[1999] ZACC 5
;
1999
(3) SA 191
(CC) para 12.
[12]
W
R Trumble and A Stephenson
The
New Shorter Oxford English Dictionary
5 ed (2002) vol 1 defines ‘administrative’ as
‘Pertaining to the management of affairs’.
[13]
https://dictionary.cambridge.org/dictionary/english/administrative.
[14]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council
and
Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC) paras 56 and 58.
[15]
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex
Parte President of the Republic of South Africa
and Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 85.
[16]
Head
of Department, Department of Education, Free State Province v Welkom
High School
and
Another; Head of Department, Department of Education, Free State
Province v Harmony High School and Another
[2013]
ZACC 25
;
2014
(2)
SA 228
(CC) para 1.
[17]
Section
20(4)
(b)
of the ECA requires the Electoral Court to determine which courts
shall have jurisdiction to hear particular disputes and complaints
about infringements of the Electoral Code of Conduct.
[18]
Section
12(2)
(a)
of the ECA.
[19]
Section
96(2)
of the
Electoral Act provides
:
‘
If
a court having jurisdiction by virtue of
section 20(4)
of the
electoral commission act finds that a person or registered party has
contravened a provision of part one of this chapter
it may in the
interest of a free and fair election impose any appropriate penalty
or sanction on that person or party, including–
(a)
a formal warning;
(b)
a fine not exceeding 200 000;
(c)
the forfeiture of any deposit paid by
that person or party in terms of
section 27(2)
(e)
;
(d)
an order preventing that person or
party from–
(i)
using any public media;
(ii)
holding any public meeting, demonstration,
march or other political event;
(iii)
entering any voting district for the
purpose of canvassing voters or for any other election purpose;
(iv)
erecting or publishing billboards,
placards or posters at or in any place;
(v)
publishing or distributing any campaign
literature;
(vi)
electoral advertising; or
(vii)
receiving any funds from the state or from
any foreign sources;
(e)
this an order imposing limits on the
right of that person or party to perform any of the activities
mentioned in paragraph
(d)
;
(f)
an order excluding that person or any
agent of that person or any candidate or agents of that party from
entering a voting station;
(g)
an order reducing the number of votes
cast in favour of that person or party;
(h)
an order disqualifying the candidature
of that person or of any candidate of that party; or
(i)
an order cancelling the registration
of that party.’
[20]
DA
v ANC
fn
1 paras 128-129.
[21]
Section
96(3)
of the
Electoral Act;
DA
v ANC
fn 1 para 129.
[22]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
; [2012] 2 All SA (SCA);
2012 (4) SA 593
(SCA) paras
18 and 25, affirmed in
Airports
Company South Africa v Big Five Duty Free (Pty) Ltd and Others
[2018] ZACC 33
;
2019 (2) BCLR 165
(CC);
2019 (5) SA 1
(CC) para 29.
[23]
Attorney-General
Transvaal v Additional Magistrate for Johannesburg
1924 AD 421
at 436, cited with approval in
Case
and Another v Minister of Safety and Security and Others; Curtis v
Minister of Safety and Security and Others
[1996] ZACC 7
;
1996 (3) SA 617
(CC) para 57.
[24]
Rules
2(1)-(3) of the Disputes and Complaints Rules.
[25]
Id
rule 2(3).
[26]
Id
rule
4(1).
[27]
Id
rule
4(6).
[28]
Id
rule
4(7).
[29]
Id
rule
4(8) read with
s 20(5)
of the
Electoral Commission Act.
>
[30]
Id
rule
4(10).
[31]
Geldenhuys
and Neethling v Beuthin
1918
AD 426
at 441, affirmed in
Director-General
Department of Home Affairs and Another v Mukhamadiva
[2013]
ZACC 47
;
2014 (3) BCLR 306
(CC) para 33.
[32]
DA
v ANC
fn
1 para 120.
[33]
DA
v ANC
fn
1 para 144, footnote omitted.
[34]
Id
para
138.
[35]
Id
paras 122-131.
[36]
Id
para 133.
[37]
Id
para 167.
[38]
Id
para 192 per Van der Westhuizen J.
[39]
Id
paras 203 and 205.
[40]
Competition
Commission of South Africa v Pioneer Hi-Bred International Inc and
Others
[2013]
ZACC 50
;
2014 (2) SA 480
(CC);
2014 (3) BCLR 251
(CC) paras 23 and
24.
[41]
Electoral
Commission of the Republic of South Africa v Inkatha Freedom Party
[2011] ZACC 16
;
2011 (9) BCLR 943
(CC) para 34.