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[2014] ZAGPPHC 109
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Economic Freedom Fighters v President of the Republic of South Africa and Others (16247/14) [2014] ZAGPPHC 109 (11 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG.
PRETORIA)
CASE
NO: 16247/14
DATE:
12 MARCH 2014
In the matter
between:
ECONOMIC FREEDOM
FIGHTERS
.....................................................
APPLICANT
And
THE PRESIDENT OF
THE REPUBLIC OF SOUTH AFRICA
........
1st
RESPONDENT
MINISTER OF HOME
AFFAIRS
................................................
2nd
RESPONDENT
INDEPENDENT
ELECTORAL COMMISSION
........................
3rd
RESPONDENT
JUDGMENT
RAULINGA,
INTRODUCTION
[1] The applicant
has brought an application before this court for a relief, that
pending the determination of Part B in the Notice
of Motion, an order
couched in the following items be granted:
(a) Condoning the
non-compliance with Rules of the Court with regard to time limits in
terms of Rule 6(12)(a) and hearing the matter
on an urgent basis;
(b) Suspending the
operation of Regulation 3(1 )(a) and (b) of the regulation concerning
the submission of lists of candidates,
2004 as amended by GenN1203 in
GG31451 andGNR1168 in GG31558;
(c) Mandating the
third respondent to determine that the applicant and/or other
registered political parties which are prejudiced
by the prescribed
deposits but would otherwise qualify to contest elections be
temporarily exempted from paying the prescribed
deposits as they do
not receive parliament party funding; alternatively , that a small
nominal deposit be prescribed in relation
to new entrant parties such
as the applicant; and
(d) Interdicting and
prohibiting the third respondent from rejecting any party list for
failure to pay the deposit as currently
prescribed.
Part B
Declaring section
27(2)(c) and/or 27(3)(a) of the Electoral Act unconstitutional and
invalid.
FACTUAL
BACKGROUND
[2] The applicant
was registered as a political party on the 3rd October 2013. The
party is still finding its feet financially and
administratively. It
has recently acquired its headquarters in Braamfontein, Johannesburg.
Unlike other political parties currently
represented in
Parliament, the applicant does not receive any funding from
Parliament. The applicant “has hundreds of thousands
of members
and an estimated support base of millions”. According to the
applicant, the deposits which have been prescribed
by the third
respondent are “unaffordable” to the applicant. Attempt
to ask the third respondent to waive the deposit
requirements has
received no favourable response.
[3] The third
respondent is the Electoral Commission created in terms of the
Constitution of the Republic of South Africa and mandated
to
administer and conduct elections, with its principal place of
business at Election House, Riverside Office Park, 1303 Heuwel
Avenue; Centurion; 157.
PRELIMINARY
ISSUES
[4] This matter was
enrolled for hearing for 4 March 2014, but was stood down to the 5
March 2014 due to certain glitches on the
part of the applicant. As a
consequence, costs were reserved.
[5] In their notice
of motion the applicant asks that Part A be heard first, before the
determination of Part B. However, in their
introductory remarks,
Counsel for the applicant submitted that Part A and B be heard
together. Ironically, this was the original
contention of the third
respondent when the matter was called on the 4 March 2014, before
they pleaded for separation of Part A
and Part B. The court then
ruled that only Part A will be deliberated upon. Parties also
submitted supplementary heads at the request
of the court.
[6] Both parties
raised points in limine prior to the hearing of the interim interdict
application.
(a) The applicant
contends that the third respondent as a creature of statute, and
being bound by the Electoral Act and Regulations
has no locus standi
and/or requisite
authority to oppose
a constitutional challenge of the very act and regulations that bind
it. I am with the submission of the third
respondent that although in
terms of Section 181(1) of the Constitution , its function is to
strengthen constitutional democracy
in the Republic, it also has to
enforce the provisions of the Electoral Act and has a legal interest
in the outcome of the proceedings.
In my view, the court in
Independent Electoral Commission v Longerberg Municipality dealt in
essence with disputes involving intergovernmental
institutions. The
fact that the first and second respondents have chosen to abide by
the decision of the court and not argue the
matter is of no moment.
In the same vein, the submission by the third respondent that the
applicant ought to have joined parties
who have a direct and
substantial interest in these proceedings cannot be sustained. The
first and second respondents are parties
to these proceedings.
Moreover, in such proceedings, a reference to a Minister of Home
Affairs is construed as a reference to the
Chairperson of the
Commission. The third respondent in its capacity as the administrator
of the Electoral Act and manager of elections
can substitute the
National Party Liaison Committee in these proceedings. In my view the
provisions of Rule 10 and 10A have been
complied with.
(b) The third
respondent is of the view that the applicant has overlooked Rule 16A
in that it has failed to give notice in the
form of a clear and
succinct description of the constitutional issues raised in the
application, to the registrar at the time of
filing the relevant
affidavit. It seems to me that Rule 16A is applicable to any
interested party in a constitutional issue raised
in proceedings
before a court who may, with the written consent of the parties to
the proceedings, give notice not later than 20
days after the filing
of the affidavit on pleadings in which the constitutional issue was
first raised, be admitted therein as
amicus curiae. In the first
instance, the applicant is a party to the proceedings and secondly it
is not an amicus curiae. The
submission of the third respondent must
be dismissed on this ground.
(c) It is also
argued by the third respondent that the applicant failed to annex a
properly executed resolution granting authority
to the deponent to
the founding affidavit. In the case of companies or other corporate
entities a resolution giving authority to
the deponent must be
attached. Once such a resolution is attached, it is left to the
discretion of the court whether to accept
it or not. According to the
Constitution of the applicant clause 40 on page 9, the deponent to
the founding affidavit is the General
Secretary of the political
party. The resolution was issued by what is referred to as the
Central Command Team which appears on
page 8 of the Constitution. The
date on which the resolution was issued is not reflected on the
purported resolution. The person
who signed it does not state his or
her title. The court can exercise its discretion in favour of the
applicant if the crucial
requirements have been complied with. In the
circumstances I am unable to condone the non-compliance with the
Rules of Court.
(d) The third
respondent joins issue with Rule 6(12) procedure that has been
adopted by the applicant, in that no urgency exists
and that no case
for urgency has been made out on paper. The applicant registered as a
political party on the 3 October 2013, and
was co-opted to the
National Party Liaison Committee as a member in November 2013. The
applicant must have been aware of the 2014
election when it
registered as a party in October 2013. If the applicant missed this
important public knowledge issue in October
2013, then it ought to
have been aware of this fact in November when it became a member of
the National Party Liaison Committee.
It is at that time that the
urgent application ought to have been launched. Matters launched on
an urgent basis must show a potential
for loss or disadvantage and
that the applicant could not be afforded substantial redress at a
hearing in due course. The degree
of urgency, in a matter, ought not
to be greater than the exigency that the case demands, but must
commensurate therewith - Luna
Meubel Vervaardigers (Edms) Bpk v Makin
(t/a Makin Furniture Manufactures*. Even in the event that the
applicant alleges the infringement
of Constitutional rights, the
rules of court must still be complied with. As a party wishing to
contest the 2014 elections seriously,
the applicant is bound to know
the provisions of the relevant statutes even before registration as a
party. The applicant does
not substantiate the reasons for the
urgency of the matter. It does not explain the events leading to the
issuance of the election
time-table by the third respondent, after
the election date was pronounced by the President of the Republic.
There is a long process
that was followed prior to the implementation
of the decision taken by the third respondent. Moreover, at all
material times, the
applicant was a member of the National Party
Liaison Committee. It is of paramount importance to mention that the
deposit amount
is contained in a Regulation as published under GN
R969 in GG37133 of the 6 December 2013. It is at that time that the
application
could have been launched. In my view the claim of urgency
is unwarranted. There is no urgency.
RELEVANT LEGAL
PROVISIONS
[7] The Electoral
Commission is established in terms of section 181 of the Constitution
as one of the State Institutions Supporting
Constitutional Democracy.
In terms of Section 190(1) of the Constitution the Electoral
Commission has the following functions:
(a) to manage
elections of national, provincial and municipal legislative bodies in
accordance with national legislation;
(b) to ensure that
those elections are free and fair; and
(c) to declare the
results of those elections within a period prescribed by national
legislation and that is as short as reasonably
possible.
[8] Section 190(2)
of the Constitution provides also that the Electoral Commission has
the additional powers and functions prescribed
by national
legislation. Some of the powers include the compilation, publication
of the election voters roll and the setting of
the mechanisms to
ensure the registration of political parties to take part in the
elections, including determining compliance
with any electoral
procedures.
[9] Part 3 of the
Electoral Act deals with requirements on parties contesting
elections. Section 26 of the Electoral Act provides
that a party may
contest an election only if it is a registered party and has
submitted a list of candidates in terms of section
27 . Section 27,
in turn deals with submission of lists of candidates. It states as
follows:
(1) A registered
party intending to contest an election must nominate candidates and
submit a list or lists of those candidates
for that election to the
Chief Electoral Officer in the prescribed manner by no later than the
relevant date stated in the election
timetable.
(2) The list or
lists must be accompanied by a prescribed -
(a) undertaking ,
signed by the duly authorised representative of the party, binding
the party, persons holding political office
in the party, and its
representatives and members to the code,
(b) declaration,
signed by the duly authorised representative of the party, that each
candidate on the list is qualified to stand
for election in terms of
the Constitution or national or provincial legislation under chapter
7 of the Constitution;
(c) acceptance of
nomination, signed by each candidate;
(d) undertaking
signed by each candidate, that the candidate will be bound by the
code; and
(e) deposit.
(3) (a) the
Commission may prescribe the amount to be deposited in terms of the
sub-section 2(e)
(b) the amount to be
deposited by the registered party contesting the election of a
provincial legislature, must be less than the
amount for contesting
an election of the National Assembly”.
THE DEPOSIT
AMOUNT
[10] The Electoral
Act does not specify the amount to be paid as a deposit under
section 27 (2) (e). That is left for determination
by the Electoral
Commission. The Act also does not specify any factors or guidelines
to be taken into account by the Electoral
Commission when
specifying the deposit amount. The issue appears to be left entirely
to the discretion of the Commission, except
that the amount paid in
respect of contesting provincial legislatures must be less than the
amount for contesting national elections.
[11] Failure to pay
the deposit constitutes non- compliance, resulting in
disqualification from participating in the elections.
Although there
is a limited scope to correct lists which have been submitted in
terms of section 28 , there is notably no scope
for condonation or
waiver of the deposit requirement by the Electoral Commission itself,
in terms of the Electoral Act.
[12] In terms of
section 106 of the Electoral Act the deposit paid under Section 27
(2)(e) may either be forfeited or returned.
A party which is
allocated at least one seat in the legislature whose election was
contested by that party is refunded in full
by the Commission.
However, a party that fails to secure at least one seat in the
legislature forfeits its deposit to the state.
[13] The regulations
deal with a number of items, including lists of candidates and the
deposit contemplated by section 27 of the
Electoral Act . The
procedure for the submission of lists is a thorough and detailed
process which requires meticulous attention
to the procedural
requirements in the Act and the Regulations. A party which seriously
wishes to contest the elections is duly
bound to scrupulously observe
conditions, at the risk of disqualification.
[14] The deposit
amount is contained in Regulation concerning the submission of Lists
of Candidates, 2004 as published under GN
R969 in GG37133 of 6
December 2013. Regulation 3 provides for the deposit in the 2014
elections:
“(1) the
amount to be deposited in terms of section 27(2) of the Act is -
(a) R200, 000, 00
(two hundred thousand rand) in respect of an election of the National
Assembly; and
(b)R45 000, 00(forty
five thousand rand) in respect of an election of a provincial
legislature
(2)the deposit must
be paid by bank guarantee cheque in favour of the Electoral
Commission ”
[15] A party which
does not comply with either of the above requirements faces the risk
of disqualification because the Electoral
Commission is responsible
for compiling the list of political parties and candidates contesting
the elections. The regulations
do not provide the IEC with discretion
to waive the deposit requirement on good cause shown. Therefore, the
deposit requirement
is inflexible and non- compliance therewith will
result in disqualification.
[16] The issue of
paying a deposit in order to participate in an election was
considered by the Constitutional Court in African
Christian
Democratic Party v Electoral Commission and others In that case
there was no challenge to the constitutionality of deposits.
The
issue in dispute was whether the ACDP, the applicant in that case,
had in fact paid the deposit to enable it to participate
in local
government election. However, the court emphasised the need for the
payment of the deposit, stating that:
“it was
complementary to the key notification required for organising the
elections - the payment of an electoral deposit
ensured that the
participation of political parties was not frivolous
FOREIGN LAW
[17] It seems to me
that the rationale behind the payment of the electoral deposit serves
as a guarantee that a political party
seriously wants to participate
in elections. The third respondent annexes “M5M4” as
confirmation that the electoral
deposit is a general trend in other
jurisdictions. In the DRC, eg, the deposit is R2, 441 030, 00(Two
million Four hundred and
Forty one thousand and thirty Rand). The DRC
is comparatively speaking, per capita, poorer than South Africa.
[18] In Canada, the
candidate for Member of Parliament must place a $100 000,00 deposit -
this is an equivalent of almost R800 000,00
per candidate. At
present, all candidates receive their deposit back if they turn in
their properly completed financial paper work
on time, and a portion
of election expenses are reimbursed if 10% is reached. The same
practice obtains in the USA and Australia.
[19] However, in
figueros v Canada (Attorney General), the appellant challenged the
constitutionality of the 50 - candidate threshold.
Under the Canadian
Elections Act, a political party must nominate candidates in at least
50 electoral districts in order to obtain,
and then retain,
registered party status. The court of Appeal held that the 50 -
candidate threshold was not consistent with section
3 of the Charter,
except to the extent that it denied candidates of non- registered
parties the right to identify their party affiliation
on the election
ballot. The purpose of section 3 is effective representation. This
was not a challenge to the constitutionality
of a deposit per se.
[20] Taking a cue
from Ghana Electoral Laws (Public Elections Regulations) section 6(1
)(a) requires a candidate for president
or parliament at the time of
nomination to deposit or cause to be deposited such sum as the
Commission shall determine.
[21] In my view,
there does not seem to be any challenge to the constitutionality of
the electoral deposit in the jurisdictions
mentioned above. The fact
that this has not been done in other countries does not deter
political parties or any affected individual
to launch such a
challenge in South Africa. These are issues which can be entertained
in Part B of the Notice of Motion.
THE RIGHT TO VOTE
AND STAND FOR PUBLIC OFFICE
[22] The applicant
paints a picture that analogously encapsulates the author’s
words in 21
‘Animal Farm’
“all animals are equal, but some animals are more equal than
others ” I take judicial notice
that there are millions of
South African citizens who live in abject poverty. I note what was
said by the court in August &
Another v Electoral Commission &
Others . I recognise these as foundational values which are accepted
and applied universally
- '"the universality of the franchise is
important not only for nationhood and democracy. The vote of each and
every citizen
is a badge of dignity and personhood. Quite literally
it says that everyone counts”. On the contrary, it does not
mean that
we must flout the rules and regulations - as was said in
Akani Garden Route (Pty) Ltd v Pinnacle Point Casino(Pty) Ltd : -
“ laws,
regulations and rules are legislative instruments, whereas policy
determinations are not. As a matter of sound government,
in order to
bind the public, policy should normally be reflected in such
instruments. Policy determination cannot override, amend
or be in
conflict with laws (including subordinate legislation). Otherwise the
separation between Legislative and Executive will
disappear ”.
While foundational
values as enshrined in the Constitution must supersede other
considerations, this does not apply where there
is a glaring
disregard for rules and regulations. To do so, will be to act outside
the framework of the law. The principles of
legality and rule of law
do not exist in a vacuum.
[23] Our Courts have
ruled that a court may not usurp the powers of another branch of
government unless a proper and strong case
has been made. The
following dicta in Glenister v President of the Republic of South
Africa is significant:
“onus of
establishing the absence of a legitimate government purpose, or of a
national relationship between the law and the
purpose, falls on the
objector. To survive the rationality review, legislation need not be
reasonable or appropriate ”.
As long as the
purpose sought to be achieved by the exercise of public power is
within the authority of the functionary, and as
long as the
functionary’s decision, viewed objectively, is rational a court
cannot interfere with a decision simply because
it disagrees with it
or considers that the power was exercised inappropriately -
Pharmaceutical
Manufacturer’s Association of SA and Another: In Re -Ex Parte
President of the RSA and others.
I am of the view
that I cannot at this stage interfere with a determination made in
terms of a legally valid legislative instruct.
[24] The suspension
of Regulation 3(1 )(a) and (b) would first require a determination
that the said Regulations are invalid. I
agree with the third
respondent that no objective facts or proper basis for this court to
reach such a conclusion has been laid,
as I will indicate hereunder.
These regulations have had legal force over years, as well as section
27(209e0 and 27(3)(a) of the
Electoral Act. Because this is an
application for an interim relief, I am unable to deal with the
issues of unconstitutionally
and invalidity in detail.
THE TEST REQUIRED
FOR GRANTING INTERIM INTERDICTS
[25] The test for
the granting of interim relief has been authoritatively laid down in
National Treasury and Others v Opposition
to Urban Tolling Alliance &
others . In that case the Constitutional Court said the following
with regard to the test for interim
relief: -
‘‘'the
test requires that an applicant that claims an interim interdict must
establish : (a) a prima facie right even
if it is open to some doubt;
(b) a reasonable apprehension of irreparable and imminent harm to the
right if an interdict is not
granted.
(c) the balance of
convenience must favour the grant of the interdict; and (d) the
applicant must have no other remedy
[26] The court went
further and stated that when weighing the balance of convenient
requirement, a court “must now carefully
probe whether and to
which extent the restraining order will probably intrude into the
exclusive terrain of another branch of
government. It is
also true that different considerations may apply where “the
harm apprehend by the claimant amounts to a
breach of one or more
fundamental rights warranted by the Bill of RightsHowever, there must
be a pressing and convincing argument
why the court will not readily
close its doors to the granting of an interim interdict. The court
went further and said the following
“whilst a court has the
power to grant a restraining order of that kind, it does not readily
do so except when a proper and
strong case has been made out for the
relief and, even so, only in the clearest of cases. The court must
carefully consider whether
the grant of the temporary restraining
order pending a review will cut across or prevent the proper exercise
of power or duty that
the law has vested in the authority to be
interdicted".
One may add that ‘a
proper and strong case’ means where all the requirements for an
interim interdict have been canvassed
sufficiently. Whereas “in
the clearest of cases” requires that no doubt should be cast on
the evidence advanced by
the claimant. I do not think this is the
case in this matter.
[27] The applicant
alleges that its inability to pay the prescribed deposit may
prejudice voters in the exercise of their rights,
under section 19(2)
of the Constitution . They also allege that the prescribed deposits
are unaffordable and too high; that they
are unjustifiable and
constrain the ability of new political parties to participate in the
elections thus portraying “the
elections to be financially
barred”
[28] In their
founding affidavit, the applicant made bald statements, restating the
requirements for an interim interdict without
adding flesh to it. On
urgency, the applicant merely states that (sic) the elections have
already been announced to be on the 7
May 2014 and proclamation is
thus underway, this matter will determine the participation of the
applicant in the elections and
those of its voters. The applicant
also mentions faceless (sic) other new political parties and indeed
all political parties and
citizens. Yet for two days that the matter
was before the court, not a single other political party or citizens
approached the
court as amici curiae. Applicant does not explain in
detail why the application was not enrolled earlier, this is one of
the reasons
why the court ruled that the matter is not urgent. It is
trite that a party’s case is made in its pleadings. A case is
not
made in heads of argument.
[29] I am not
convinced that the applicant managed to canvas the requirement of
prima facie right. I say so because the submissions
made mostly
pertained to Part B of the notice of motion. An interdict is meant to
prevent future conduct and not decision already
made. Further to
that, the applicant does not demonstrate a prima facie right that is
threatened by impending or imminent irreparable
harm.
[30] Again on the
aspect of irreparable harm, the applicant does not explain to the
court how much it can afford. Instead when requested
to suggest a
reasonable deposit amount they put forward a ridiculous amount of RIO
000(Ten Thousand Rand). Instead they continue
to submit that their
members who are in hundreds of thousands and their followers who are
in millions will suffer irreparable harm
because they will not be
able to vote. The applicant does not tell this court how many members
have joined and an estimated number
of followers. Much as it is
accepted that members of a party vote through their political party,
the converse is that the applicant
did not advance sufficient
evidence to support this requirement.
[31] A court must be
satisfied that the balance of convenience favours the granting of a
temporary interdict. It must first weigh
the harm to be endured by an
applicant if interim relief is not granted, as against the harm a
respondent will bear if the interdict
is granted. Thus, a court must
assess all relevant factors carefully in order to decide where the
balance of convenience rests.
[32] In the instant
case, the argument of the applicant is (sic) the balance of
convenience favours the granting of the interim
order, as the horses
will have bolted should the date for the submission of the lists and
deposit(s) be allowed to pass before
the determination of Part A of
the application. Yet, in the case of the respondent there will be
many disruptions and repercussions
causing a lot of inconvenience
-which will prejudice the third respondent:-
(i) the ballot paper
has to be prepared and printed;
(ii) because the
submission of lists of candidates triggers commencement of the ballot
production process, production cannot kick
-start;
(iii) as a
consequence the printers cannot start with the determination of the
length of the ballot paper;
(iv) the sequence of
the political parties on the ballot paper cannot be determined in
terms of an objective procedure;
(v) the
approximately 60 million ballots with appropriate security features
may not be printed within the prescribed 10 days at
four pre-selected
sites around the country;
(vi) The agreements
already concluded with service providers will have to be altered or
cancelled.
(vii) In order for
the third respondent to prescribe a reduced or nominal amount, the
third respondent must first consult with the
National Party Liaison
Committee. Such a meeting has been scheduled for the 13 March 2014
for purposes of discussing other urgent
items; and
(viii) All these
will disrupt the election timetable and upset the election date
scheduled for the 7 May 2014, as announced by the
President of the
Country.
It is for these
reasons that the balance convenience favours the third respondent.
[33] The alternative
remedy is that the applicant may raise funds through its members who
are “in hundreds of thousands”
in order to pay the
deposit. If this fails, the applicant may approach its funders who
may pay the deposit, and once the applicant
gains at least one seat
in Parliament, the deposit will be refunded to them.
[34] In Moloko and
Another , the Constitutional court dismissed the application because
the applicant had not established exceptional
circumstances and
further that the application would disrupt the election time-table
and the election date.
CONCLUSION
[35] The procedural
failures by the applicant are fundamental and far reaching and
warrant a dismissal of the application with costs.
[36] In the result I
make the following order:
(a) The matter is
not urgent.
(b) The application
is dismissed with costs
(c) The applicant is
ordered to pay costs of the postponement of the 4 March 2014.
(d) Costs include
costs attendant on the employment of two Counsel.
T J RAULINGA
JUDGE OF THE HIGH COURT
FOR THE
APPLICANTS : Adv D Ntsebeza SC
Adv M Zulu Adv M
Qofa
INSTRUCTED BY :
VB Shabalala Attorneys
FOR THE 3rt
RESPONDENT : : Adv MTK Moerane SC
Adv L Gcabashe
INSTRUCTED BY : Gildenhuys Malatji Inc
HEARD ON : 4
March 2014
DATE OF JUDGMENT
: 11 March 2014
CONCLUSION
[35] The procedural
failures by the applicant are fundamental and far reaching and
warrant a dismissal of the application with costs.
[36] In the result I
make the following order:
(a) The matter is
not urgent.
(b) The application
is dismissed with costs
(c) The applicant is
ordered to pay costs of the postponement of the 4 March 2014.
(d) Costs include
costs attendant on the employment of two Counsel.
T J/RAULINGA
JUDGE OF THE HIGH COURT
FOR THE
APPLICANTS : Adv D Ntsebeza SC
Adv M Zulu Adv M
Qofa
INSTRUCTED BY :
VB Shabalala Attorneys
FOR THE 3ri
RESPONDENT : : Adv MTK Moerane SC
Adv L Gcabashe
INSTRUCTED BY : Gildenhuys Malatji Inc
HEARD ON : 4-5
March 2014
DATE OF JUDGMENT:
11 March 2014
8 1977(4) SA 135(
W) at 127A
21 George Orwell
26 2012(6) SA
223(CC)