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[2017] ZASCA 161
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Electoral Commission of South Africa v Cape Party and Others (1233/2017, 1268/2017) [2017] ZASCA 161 (27 November 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
Nos: 1233/2017
and
1268/2017
In the
matters between:
THE
ELECTORAL COMMISSION OF SOUTH AFRICA
APPELLANT
and
THE
CAPE PARTY
RESPONDENT
and
THE
ELECTORAL COMMISSION OF SOUTH AFRICA
APPELLANT
and
KHAI-MA
ONAFHANKLIKE KANDIDATE KOALISIE
FIRST RESPONDENT
AFRICAN
NATIONAL CONGRESS
SECOND RESPONDENT
DEMOCRATIC
ALLIANCE
THIRD RESPONDENT
DIE
FORUM
FOURTH RESPONDENT
FREEDOM
FRONT PLUS
FIFTH
RESPONDENT
Neutral
citation:
IEC
v Cape Party
(1233/17);
IEC
v Khai-Ma Onafhanklike Kandidate Koalisie
(1268/17)
[2017] ZASCA 161
(27 November 2017)
Coram:
Bosielo
and Willis JJA and Plasket, Meyer and Makgoka AJJA
Heard:
16 November 2017
Delivered:
27 November 2017
Summary:
Application for leave to
appeal to this court from Electoral Court in matters involving
municipal elections - leave granted - objections
in one matter not
material - in the other incorrect conclusions of fact - appeals
upheld - Electoral Commission decisions confirmed.
ORDER
On
appeal from:
The Electoral
Court, Bloemfontein and Johannesburg, respectively (Shongwe JA,
Moshidi and Wepener JJ and Ms Pather (member) sitting
in each
instance).
In
both matters, the Cape Party matter (case no. 1233/2016) and the
Khai-Ma Onafhanklike Kandidate matter (case no. 1268/2016),
the same
order was made.
1.
Leave is granted to the applicant, the IEC, to appeal to this court.
2.
The appeal is upheld.
3.
The orders of the Electoral Court are set aside and the following
substituted therefor:
'
The
application is dismissed
.'
4.
There is no order as to costs.
JUDGMENT
Willis
JA (Bosielo JA and Plasket, Meyer and Makgoka AJJA concurring):
Introduction
[1]
These two matters have been set down for hearing together because
they both turn on the question of the appealabilty of orders
of the
Electoral Court. I shall refer to the matter in which the Khai-Ma
Onafhanklike Kandidate Koalisie (KOKO) was the applicant
as ‘the
Khai-Ma Onafhanklike Kandidate matter’. In that matter, this
court directed on 26 January 2017 that the application
for leave to
appeal be referred to it for oral argument in terms of s 17(2)
(d)
of the Superior Courts Act 10 of 2013 (the SPA). Differently
constituted, on 30 January 2017, this court made a similar order
in
the matter in which the Cape Party was the applicant (‘the Cape
Party matter’). Both matters relate to orders made
by the
Electoral Court pertaining to the municipal elections that took place
in South Africa on 3 August 2016.
[2]
In the Cape Party matter, the Electoral Court (Shongwe JA and Moshidi
and Wepener JJ, with Ms Pather as a member), sitting in
chambers in
Bloemfontein on 14 September 2016, made an order, by a majority, that
there be a recount and verification of votes
cast in certain
municipal wards in the Western Cape Province. One of these was a ward
within the city of Cape Town itself. The
others were in Bergrivier
and Swartland. In the Khai-Ma Onafhanklike Kandidate matter, the same
court consisting of the same members,
but sitting in Johannesburg,
unanimously made an order on 23 September 2016 setting aside the
Namakwa District municipal elections
held on 3 August 2016. The court
directed that a revote be held but made an order that the declared
results in the Namakwa District
remained effective until the outcome
of the revote. In the Cape Party matter the Electoral Court did not
hand down a written judgment
in support of the order but, in the
Khai-Ma Onafhanklike Kandidate matter, it did so.
[3]
The Electoral Commission of South Africa was the respondent in the
Cape Party matter and the first respondent in Khai-Ma Onafhanklike
Kandidate matter. The Commission is widely known as the Independent
Electoral Commission (or, more simply, as the IEC) and refers
to
itself as such. For convenience, I shall refer to it in this judgment
as ‘the IEC’. The other respondents in the
Khai-Ma
Onafhanklike Kandidate matter were the other political parties who
were contestants in the Namakwa district.
[4]
Dissatisfied with the outcome in both the Cape Party and the Khai-Ma
Onafhanklike Kandidate matters, the IEC brought the respective
applications for leave to appeal to this court. In both instances,
the IEC chose to use the term ‘application’, rather
than
‘petition’. These applications resulted in the directions
by this court, to which reference has been made above,
that the
parties must first argue whether leave to appeal should be granted.
In both matters, this court directed that the parties
should be
prepared to argue the merits of the appeal, in the event that the IEC
succeeded in being granted leave to appeal. The
IEC has done so. It
has not sought any order as to costs.
[5]
In neither appeal has there been any opposition by or appearance on
behalf of the respondents. During the recess immediately
before the
hearing of the appeal, it came to the attention of the acting
president of this court, that no heads of argument had
been filed on
behalf of the respondents in either case. After consultation with the
president, he directed the registrar to address
a letter to the
Johannesburg Bar Council requesting the appointment of an amicus
curiae. The Bar Council duly invited several amici
to act. We are
grateful to them for their submissions. Shortly before the hearing of
the appeal, the amici filed their heads of
argument. They agreed that
the IEC’s appeal in the Cape Party matter was good but
contended that in the Khai-Ma Onafhanklike
Kandidate matter, it had
been correctly decided by the Electoral Court.
[6]
These heads came to the attention of the Cape Party. Mr Carlo
Viljoen, an advocate at the Cape Bar and one of the leading dramatis
personae in the Cape Party, wrote a letter to the registrar
dissociating the Cape Party from the submissions of the amici and
requesting a postponement, in order to enable it to obtain
representation. No formal application for a postponement was put
before
us. After hearing counsel for the IEC and the amici, we
decided to proceed with the hearing. There were a number of factors
that
influenced the decision. The IEC needs to know where it stands
in regard to the issues in question. The other parties and the voters
need finality in the matter. Five judges, several of whom hold acting
appointments and will not necessarily all be back at this
court at
the same time, have spent precious time reading and preparing for the
case. There are other litigants, anxiously waiting
for the hearing of
their matters, who would be prejudiced if those hearings were delayed
in order to accommodate the Cape Party
by postponing the hearing.
[7]
I shall now deal separately with the relevant facts in each matter.
The
facts in the Cape Party matter
[8]
There were originally three separate complaints made by the Cape
Party to the Electoral Court in its review application dated
30
August 2016:
(a)
That in the Cape Town
Metropolitan election, in a certain ward three people living in a
retirement village had informed the Cape
Party that they had voted
for it but, when the votes were counted, the party was recorded as
having received no votes in that particular
ward;
(b)
In Swartland a count of
votes at the offices of the IEC at Malmesbury showed that the party
had received five votes but a later
count at the counting centre and
published by the IEC records four votes;
(c)
In Bergrivier, a person
reported that the party had received three votes but the final
results for that station reflected that the
party had received no
votes at all.
The
complaint relating to the Cape Town Metropolitan election was based
on inadmissible hearsay evidence. In the founding affidavit
filed on
behalf of the Cape Party by its leader, Mr Carlo Viljoen, it is
alleged that there are ‘more incidents than I [Mr
Viljoen] have
space or time to report here before the cut-off time for submission
at 17h00 today.’ In that affidavit he complains,
en passant,
that in Esterhof (Swartland) an initial vote count recorded the party
as having received 153 votes but the final, published
tally was 151
votes. No relief was sought in regard to Bergrivier.
[9]
The Cape Party lodged its objections with the IEC on 5 August 2016.
Relying on the provisions of s 65 of the Local Government:
Municipal
Electoral Act 27 of 2000 (the Municipal Electoral Act), on 8 August
2016 the IEC rejected the party’s objection
by reason of their
general lack of materiality and, more particularly, the unlikelihood
that the matters in respect of which there
had been a complaint could
have been material to the final result.
[10]
As mentioned above, in their objections to the IEC the party mentions
reports that it had received three votes in Bergrivier
but the final
tally recorded that it had received no votes there. This complaint
was not, however, persisted with in the application
before the
Electoral Court. It is therefore unclear why the Electoral
Court made an order affecting the Bergrivier election.
The
facts in the Khai-Ma Onafhanklike Kandidate matter
[11]
The Khai-Ma Onafhanklike Kandidate matter is concerned, essentially,
with KOKO’s abortive attempts, as a political party,
to have
registered its candidate in the Namakwa District Municipal election.
In addition to Namakwa, KOKO was also interested in
contesting the
Khai-Ma Local Municipal election.
[12]
The president of KOKO, Mr Nicolaas Jano, visited the IEC’s head
office in Pretoria on 1 June 2016 to make enquiries about
the
registration of KOKO’s candidates in both the Khai-Ma and
Namakwa elections. He made the requisite payment to contest
the
elections. He thereupon returned to the Northern Cape, intending to
submit his candidate nomination forms the following day.
He submitted
the requisite form for the Khai-Ma election but not for that to be
held in Namakwa. Instead, the form upon which KOKO
relies is the
separate and different proportional nomination representation form
for the Khai-Ma election. That form listed only
the Khai-Ma
municipality as that in respect of which nominations had been made.
[13]
The acceptance form, signed by Mr Brunhild Strauss, KOKO’s
intended candidate for the Namakwa election, did not indicate
that
the acceptance was in respect of the District Municipality but rather
Khai-Ma. It was for this reason that the IEC did not
place Mr
Strauss’ name on the ballot paper for Namakwa. The election
proceeded accordingly.
[14]
In KOKO’s founding affidavit, however, Mr Jano alleges that he
had ‘followed all steps to comply with the regulations
and
rules of the IEC in order to have my party [KOKO] ready to and to
participate in the elections of 3 August 2016’. He
also alleges
that he had paid a deposit of R3000.00 of which R2000.00 was for
KOKO’s participation in the Khai-Ma elections
and R1000.00 in
the Namakwa elections. Mr Jano claims that he had been told by Ms
Jeneve Brandt of the IEC’s local office
in Khai-Ma that ‘there
is no specific form for district candidate registration and that my
district candidate can be added
on the party PR list.’
[15]
Mr Jano goes on to allege that he first discovered that KOKO did not
appear on the Namakwa ballot paper on 4 July 2016. He
says that when
he complained to the local office of the IEC in Pofadder he was told
that nothing could be done because the Namakwa
ballot papers were
being administered in Springbok and the ballot papers had already
been printed throughout the land. It was on
the basis that the IEC
had failed to address KOKO’s complaint of its having been
excluded from the Namakwa ballot form that
KOKO applied to the
Electoral Court, exercising its powers of review, to set aside the
Namakwa election and to order a revote.
[16]
It is not in dispute that KOKO failed to follow the correct
procedures to have Mr Stauss’ candidacy appear on the ballot
forms for the Namakwa election. In its answering affidavit, the IEC
contends that its officials and, in particular, Mr Kgosi Tshoke,
carefully explained the correct procedures to Mr Jano. In
particular, Mr Tshoke says that at the IEC head office on 1
June 2016 he explained to
Mr Jano that if he were to choose to submit his nominations manually,
he had to do so at the respective
local and district offices of the
IEC (ie Pofadder and Springbok, respectively). On this issue there is
a fundamental dispute of
fact: did an IEC official explain the
correct procedures to Mr Jano or did he not? That dispute of fact
cannot be glossed over
or ignored. There is another fundamental
dispute of fact: Mr Jano alleges that on the following day, 2
June 2016, he was
informed by Ms Jeneve Brandt, an employee of the IEC at its Pofadder
branch, that no specific form was required
for registration as a
district candidate and that his district candidate could simply be
added to the party list. This allegation
is categorically denied by
Ms Brandt. There was no application made to the Electoral Court for
the matter to be referred to oral
evidence or to trial.
[17]
The second respondent in the application before the Electoral Court
was the African National Congress (ANC). In its answering
affidavit,
the ANC alleges that Mr Jano was a seasoned politician, having
previously been active in both the ANC and the Congress
of the People
(COPE).
[18]
The Electoral Court found, however, that there was ‘inherent
credibility’ in Mr Jano’s complaint that he
had not been
properly advised by the IEC about the forms that needed to be filled
in and concluded that ‘the facts and circumstances
of this
matter call for the adoption of a common sense and robust approach.’
It also concluded that even if Mr Jano
had been advised on the
forms, the IEC had not taken or given 'reasonable care' and
'assistance'. It was on this basis that the
court intervened in the
matter to set aside the Namakwa election and ordered a revote.
[19]
The Electoral Court also appeared to have found that a candidate
registered in respect of the Khai-Ma Municipal elections was
automatically registered for the Namakwa District elections, the
latter being subsumed under the former.
The
jurisdiction of this court to hear the prospective appeals
[20]
Section 96(1) of the Electoral Act 73 of 1998 (which is not to be
confused with the subsequently enacted
Municipal Electoral Act)
provides
that:
‘
The
Electoral Court has final jurisdiction in respect of all electoral
disputes and complaints about infringements of the Code and
no
decision or order of the Electoral Court is subject to appeal or
review
.’
It
is in respect of this provision that we invited submissions as to
this court’s jurisdiction to hear the prospective appeals.
[21]
In
African Christian
Democratic Party v Electoral Commission
[1]
O'Regan J, expressing the views of the majority of the Constitutional
Court, said:
‘
The
question of this Court’s jurisdiction to hear matters in the
light of
section
96
of
the
Electoral
Act was
expressly
left open by this Court in
Liberal
Party v The Electoral Commission
.
7
The
legislation that, in the first place, governs municipal elections is
the
Municipal
Electoral Act. Section
3(2)
of the
Electoral
Act provides
that:
“
This
Act applies to an election of a municipal council or a by-election
for such council only to the extent stated in the Local
Government:
Municipal Electoral Act, 2000 (Act 27 of 2000).”
There
is no provision in the
Municipal
Electoral Act which
renders
section 96 of the Electoral Act applicable to disputes arising from
municipal elections. Accordingly, on a proper
interpretation of
the
Municipal
Electoral
Act, read
with
the Electoral Act, section 96 of the Electoral Act is not applicable
to disputes arising from municipal elections. It
is true that
the
Municipal
Electoral Act does
not
contain an express provision for an appeal against the decision of
the Electoral Court. However, there is also no express
provision in
the
Municipal
Electoral Act stating
that
the decision of the Electoral Court is final.
In
my view, in these circumstances, it cannot be said that
section
96
applies
to disputes arising from municipal elections and accordingly cannot
on any terms be held to oust the jurisdiction
of this Court to
entertain an appeal
.
I cannot accept therefore the respondent’s argument that it
could not have been the intention of Parliament to provide
differently for provincial and national elections on the one hand and
local government elections on the other.
Legislation
should not be presumed to have intended to oust this court’s
jurisdiction when it does not expressly state as
such.
'
[2]
(Emphasis
added.)
[22]
It is therefore clear that the prohibition on appeals from the
Electoral Court, as provided for in s 96 of the Electoral Act,
does
not apply to matters dealt with by that court under the subsequent
Municipal Electoral Act.
[23]
Section 16(1)
(c)
of
the SPA provides that:
'
an
appeal against any decision of a
court
of a status similar to the High Court
lies to the Supreme Court of Appeal upon leave having been granted by
that court or the Supreme Court of Appeal, and the provisions
of
section 17
apply with the changes required by context
.'
(Emphasis added.)
In
terms of s 18 of the Electoral Commission Act 51 of 1996 (the
Commission Act), the Electoral Court is expressly given a status
similar to that of a High Court.
[3]
Accordingly, this court may grant the IEC leave to appeal to this
court in both the Cape Party and the Khai-Ma Onafhanklike Kandidate
matter. The question is whether the court should allow the respective
appeals. Relevant to that determination are the merits of
the
respective cases, to which I shall now turn.
The
merits of the Cape Party matter
[24]
Apart from the inadmissibility of the evidence in the complaint
relating to the Cape Town Metropolitan election, there was
no basis
for the Electoral Court to have interfered with the decision by the
IEC. The IEC was correct to rely on the provisions
of
s 65
of the
Municipal Electoral Act to
dismiss the Cape Party's objections for
want of materiality in respect of Cape Town, Swartland and
Bergrivier. The amici agreed.
The requirement of materiality, before
an irregularity or defect can result in the setting aside of an
election, is not only clear
from the wording of the section itself
but has also been affirmed by the Constitutional Court in
Kham
& others v Electoral Commission & another
.
[4]
In
Pitso v Electoral
Commission
[5]
it was said that
s 65
covers ‘any irregularity which would
affect the tally of votes to the extent that an unsuccessful party
may gain sufficient
votes to reverse the election result.’
[6]
The ‘loss’ of a handful of voters had no impact on
the result of any of the elections that had been challenged.
[25]
The issue of the Bergrivier municipality was, moreover, not properly
before the court. No relief had been sought in relation
to that
election and, accordingly, none could have been granted. The merits
of the Cape Party matter cry out for leave to appeal
to be granted
and for the appeal to succeed.
The
merits of the Khai-Ma Onafhanklike Kandidate matter
[26]
In the end, it seems that there was no real dispute that KOKO’s
intended candidate could not automatically be registered
for the
Namakwa District Municipality, under which the Khai-Ma Local
Municipality falls. The Electoral Court may have been confused
between the registration of political parties under sections 15 and
15A of the Electoral Commission Act 51 of 1996 (the Commission
Act)
and the requirements of
s 14(1)
(a)
(ii)
of the
Municipal Electoral Act for
the registration of candidates
each time there is a local or district municipal election. Section
15A(3) of the Commission Act
provides that: ‘A party registered
for a particular municipality or municipalities, may under such
registration only participate
in elections for councils for those
municipalities.’
[27]
In terms of
s 13(1)
of the
Municipal Electoral Act, elections
in
municipalities take place on both a proportional representation basis
and a ward/constituency basis. The Khai-Ma Local Municipality
is a
local municipality falling within the Namakwa District Municipality.
In terms of
s 13(12)
(b)
of the
Municipal Electoral Act, a
registered party nominates its
individual candidate for a ward and, in terms of
s
14(1)(
a)
(ii),
read with
s 13(1)
(a)
thereof, it separately puts the name of a candidate on a ‘party
list’ for the proportional representation election
in ‘’the
prescribed format’. There are different processes.
Furthermore, in terms of
s 14(1A)
(a)
of the
Municipal Electoral Act, if
a party submits the relevant
documents by hand, it must do so ‘at the office of the
Commission’s local representatives’.
The handing in of
the party list for Khai-Ma at Pofadder would not have resulted in the
automatic registration in Springbok, for
the Namakwa District
Municipality. There could therefore have been no automatic placing of
KOKO’s candidate on the party
list in Namakwa. Accordingly, to
the extent that the Electoral Court found that there was ‘automatic’
registration
of KOKO's intended candidate for Namakwa, it was wrong.
It seems, however, that this was not really so much a finding as a
setting
out of the argument put forward by KOKO. Indeed, there would
be a certain logical inconsistency in holding, on the one hand, that
there was automatic registration of this kind and, on the other, that
the IEC had been remiss in not advising KOKO accordingly.
[28]
The amici contended that in a modern, democratic state, the IEC
should have been more proactive in their advice to KOKO. In
other
words, the amici argued that the IEC”s advice concerning the
question of registration at different centres could have
been more
helpful to KOKO. This was not KOKO’s case. Moreover, there is
not only a fundamental dispute of fact about what
Mr Jano was
told at Pofadder on 2
June
2016 but before one even gets there, there is the factual dispute
about what happened at the IEC offices on 1 June 2016. As
set out
above, Mr Tshoke of the IEC was adamant that he told Mr Jano that, if
he chose to submit his documents manually, he had
to do so at the
respective local office (Pofadder) as well as the district office
(Springbok). This is no bare denial. It is neither
bald nor
palpably
implausible and far-fetched. Mr Tshoke’s version is,
accordingly, the version upon which the dispute must be determined.
[29]
The Electoral Court misapplied the time-honoured
Plascon-Evans
rule.
[7]
In
National Director of
Public Prosecutions v Zuma
[8]
this court said:
'Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the
Plascon-Evans
rule
that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant's (Mr Zuma’s) affidavits, which have been
admitted by the respondent (the NDPP), together with the
facts
alleged by the latter, justify such order. It may be different if the
respondent’s version
consists
of bald or uncreditworthy denials, raises fictitious disputes of
fact, is palpably implausible, far-fetched or so clearly
untenable
that the court is justified in rejecting them merely on the papers.
The court below did not have regard to these propositions
and instead
decided the case on probabilities without rejecting the NDPP’s
version.'
[9]
Moreover,
this
Plascon-Evans
rule has been emphatically endorsed by the Constitutional Court.
[10]
[30]
That the Electoral Court has to deal with matters pertaining to
elections cannot justify a departure from this rule. On the
contrary,
when it comes to politics and the seeking of final relief in motion
proceedings, the dangers of dealing with disputes
of fact in any
other way may be especially acute. There was no acceptable basis for
the Electoral Court to have found that there
was ‘inherent
credibility’ in Mr Jano’s complaint that he had not been
properly advised by the IEC about the
necessary forms to be submitted
to it. The same applies in respect of the finding that the IEC had
not taken 'reasonable care'
or given KOKO reasonable 'assistance'.
The circumstances of this matter were not, in any way, 'special'. If
anything, 'robustness'
and 'common sense' favour a decision in favour
of the IEC, rather than against it.
[31]
The merits of the Khai-Ma Onafhanklike Kandidate matter also compel
the granting of leave to appeal and the consequent upholding
of the
appeal.
The
Orders of this Court
[32]
In both matters, the Cape Party matter (case no. 1233/2016) and the
Khai-Ma Onafhanklike Kandidate matter (case no. 1268/2016),
the
following identical orders are made:
1.
Leave is granted to the applicant, the IEC, to appeal to this court.
2.
The appeal is upheld.
3.
The orders of the Electoral Court are set aside and the following
substituted therefor:
'
The
application is dismissed
.'
4.
There is no order as to costs.
______________________
N
P WILLIS
Judge
of Appeal
APPEARANCES:
For
Appellant:
S Budlender
(with
him, MR Musandiwa)
Instructed
by: Gildenhuys Attorneys, Sandton
c/o
Honey Attorneys, Bloemfontein
For
the Respondents:
None.
Amici
curiae:
LG Nkosi-Thomas SC
(with her, GC Ngcangisa
OS Ohunronbi and
NN Makhaye)
At
the invitation of the Johannesburg Bar Council
[1]
African Christian Democratic Party
v Electoral Commission
2006
(3) SA 305 (CC).
[2]
Para 15.
[3]
The Commission Act uses the old
terminology of the now repealed Supreme Court Act 59 of 1959 to
refer to the High Court - viz
the Supreme Court but it obviously
does not, in so doing, refer to this court, the Supreme Court of
Appeal.
[4]
Kham & others v Electoral
Commission & another
2016
(2) SA 338
(CC) para 56. See also
Pitso
v Electoral Commission
[2001]
3 All SA 607
(Elect Ct) at p610.
[5]
Pitso v Electoral Commission
[2001] 3 All SA 607
(Elect
Ct).
[6]
At p610.
[7]
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C.
[8]
National Director of Public
Prosecutions v Zuma
2009
(2) SA 277 (SCA).
[9]
Para 26.
[10]
See for example
President
of the Republic of South Africa & others v M & G Media Ltd
2012 (2) SA 50
(CC);
[2011] ZACC 32
para 34.