CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 106/24
In the matter between:
AFRICAN CONGRESS FOR TRANSFORMATION Applicant
and
ELECTORAL COMMISSION OF SOUTH AFRICA Respondent
Case CCT 113/24
In the matter between:
LABOUR PARTY OF SOUTH AFRICA Applicant
and
ELECTORAL COMMISSION OF SOUTH AFRICA First Respondent
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA Second Respondent
REGISTERED POLITICAL PARTIES
WHOSE PARTICULARS APPEAR IN
ANNEXURE “A” OF THE
NOTICE OF MOTION Third and Further Respondents
2
Case CCT 114/24
In the matter between:
AFRIKAN ALLIANCE OF SOCIAL DEMOCRATS Applicant
and
ELECTORAL COMMISSION OF SOUTH AFRICA Respondent
Neutral citation: African Congress for Transformation v Electoral Commission of
South Africa; Labour Pa rty of South Africa v Electoral
Commission of South Africa and Others; Afrikan Alliance of Social
Democrats v Electoral Commission of South Africa [2024]
ZACC 7
Coram: Maya DCJ, Bilchitz AJ, Gamble AJ, Madlanga J, Majiedt J,
Mathopo J, Mhlantla J, Theron J and Tshiqi J
Judgments: Majiedt J (majority): [1] to [116]
Bilchitz AJ (dissenting): [117] to [193]
Heard on: 8 May 2024
Decided on: 20 May 2024
Summary: Electoral Act 73 of 1998 — compliance with election
timetable — free and fair elections — section 19 of the
Constitution — direct access — leave to appeal — Plascon-Evans
test
REASONS FOR ORDERS
MAJIEDT J ( Maya DCJ, Gamble AJ, Madlanga J, Mathopo J, Mhlantla J, Theron J
and Tshiqi J concurring):
MAJIEDT J
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Introduction
[1] On 10 May 2024, this Court issued the following orders in these three cases:
(a) CCT 106/24 African Congress for Transformation v Electoral
Commission of South Africa:
“1. The application by the respondent to lead new evidence is
dismissed.
2. The application for leave to appeal is dismissed.”
(b) CCT 113/24 Labour Party of South Africa v Electoral Commission of
South Africa:
“1. The further affidavit, styled “replying affidavit” filed by the
applicant is regarded as pro non scripto (as if never written) and is
disregarded by this Court.
2. The affidavits filed by the co-respondents, variously styled
“supporting” or “answering” affidavits are regarded as
pro non scripto and are disregarded by this Court.
3. The application for direct access is dismissed.”
(c) CCT 114/24 Afrikan Alliance of Socia l Democrats v Electoral
Commission of South Africa:
“1. The application by the respondent to lead new evidence is
dismissed.
2. The application for leave to appeal is dismissed.”
[2] The Court indicated that reasons for these orders would be given at a later stage.
These are the reasons.
MAJIEDT J
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[3] “Technology is a useful servant but a dangerous master.” 1 These cases concern
the efficacy of an online portal provided by the respondent in all three cases, the
Electoral Commission of South Africa (Commission),2 for the submission of documents
in terms of section 27 of the Electoral Act 3 in respect of National Assembly and
Provincial Legislature elections. The submissions in issue in the three applications
concerned the elections scheduled for 29 May 2024. Two of the app lications brought
by the African Congress for Transformation (ACT) and the Afrikan Alliance of Social
Democrats (AASD) are for leave to appeal an order of the Electoral Court directly to
this Court. One application brought by the Labour Party of South Africa (Labour Party)
is for direct access. All three applications are brought as a matter of urgency. The three
applicants are newly established, registered,4 and as yet unrepresented political parties.5
As had happened in the Electoral Court, the applica tions were heard together in this
Court, given the commonality of issues. The Electoral Court had in a single judgment
dismissed applications challenging the Commission’s decision to refuse the applicants’
late submission of their full candidate list for the 2024 elections.6
[4] Section 20 of the Electoral Act provides for election timetables. It requires the
Commission to compile an election timetable for each election. It also entitles the
Commission to amend the election timetable in only two instances. That is, if it
considers it necessary for a free and fair election, or if the election is postponed in terms
of section 21(1) of the Electoral Act. The Commission promulgated the
Election Timetable for the Election of the National Assembly and the Electi on of
Provincial Legislatures for the 2024 elections 7 (Election Timetable) in terms of
section 20 of the Electoral Act. Item 9 of the Election Timetable, promulgated in terms
1 Christian Lous Lange, an eminent Norwegian historian and political scientist.
2 The Electoral Commission owes its existence to Chapter 9 of the Constitution.
3 73 of 1998.
4 Political parties are registered in terms of Chapter 4 of the Electoral Commission Act 51 of 1996.
5 That is, unrepresented in the National Assembly and Provincial Legislatures.
6 The order was issued on 15 April 2024 and the reasons for the order on 26 April 2024.
7 Election Timetable for the Election of the National Assembly and the Election of Provincial Legislatures, GN
2340 GG 50185, 24 February 2024.
MAJIEDT J
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of section 27(1) of the Electoral Act, outlines the requirements for submitting candidate
lists. It requires that new parties submit minimum supporter lists and nominated
candidate lists onto the Commission’s Online Candidate Nomination System 8 (OCNS
or online portal) before 17h00 on 8 March 2024. While the Commission’s preference
was for these submissions to be made online, they could also be made physically at the
Commission’s head office in Centurion, Gauteng.
[5] Having failed to meet the item 9 deadline, the three applicants raised complaints
with the Commission, mainly relating to the alleged dysfunctionality of the OCNS,
which they claimed had resulted in their non -compliance. These complaints of an
objective impossibility to comply with the item 9 deadline formed the basis of their
cases in the Electoral Court (and in this Court too). The Commission refused to make
ad hoc arrangements as an indulgence to allow the applicants to submit their full
candidate lists after the deadline. It explained that it had no power to condone
non-compliance with the Election Timetable. Accordin g to the Commission the
applicants only had themselves to blame for their failures to comply with the
requirements to nominate candidates and submit their candidate lists by the deadline.
The Commission claimed that the vast majority of political parties and independent
candidates had no difficulty using the OCNS and were able to meet the deadline.
[6] The three applicants then brought separate applications before the
Electoral Court with another unrepresented registered political party, the All African
Allied Congress, and an independent candidate, Dr Sipho Pienaar Malapane,
challenging that decision. They contended that, amongst others, their inability to
complete their submissions prejudiced their right to freedom of association in
8 Regulations concerning the Submission of List of Candidates, GN R14 GG 25894, 7 January 2004 defines the
OCNS as—
“a secure online application located on the official website, to be used for the electronic
submission of the information and documents contemplated in section 27 and accessed through
a pin code allocated by the chief electoral officer on written request by a party.”
MAJIEDT J
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section 189 and politica l rights in section 19 10 of the Constitution. As stated, the
applications were heard together and were all dismissed in a single judgment. The other
two applicants’ cases in the Electoral Court stood on a somewhat different footing and
are not before us.
[7] It is useful to understand the legislative framework in order to place the factual
matrix in proper context – that is what will be discussed next.
Legislative framework
[8] Section 190 of the Constitution outlines the powers, duties and functions of the
Commission:
“(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 elec tions 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.”
9 Section 18 of the Constitution provides that “[e]veryone has the right to freedom of association”.
10 Section 19 of the Constitution provides:
“(1) Every citizen is free to make political choices, which includes the right–
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative body
established in terms of the Constitution.
(3) Every adult citizen has the right–
(a) to vote in elections for any legislative body e stablished in terms of the
Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.”
MAJIEDT J
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[9] The national legislation referred to in section 190(1) is the Electoral Act and in
section 190(2) it is the Electoral Commission Act.
[10] The preamble of the Electoral Act makes plain that it regulates the elections of
the National Assembly, the Provincial Legislatures and municipal councils. Section 20
of the Electoral Act provides—
“20. Election timetables
(1) The Commission must after consultation with the party national liaison
committee–
(a) compile an election timetable for each election substantially in
accordance with Schedule 1; and
(b) publish the election timetable in the Government Gazette.
…
(2) The Commission may amend the election timetable by notice in the
Government Gazette–
(a) if it considers it necessary for a free and fair election; or
(b) if the voting day is postponed in terms of section 21.”
[11] Section 27 of the Electoral Act outlines the requirements for submitting
candidate lists.11 It reads—
“27. Submission of lists of candidates
(1) A registered party intending to contest an election must nominate candidates
and sub mit a list or lists of those candidates for that election to the chief
electoral officer in the prescribed manner by not 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;
11 This Court has previously declined to hear a challenge to section 27(2)(cB) of the Electoral Act in CCT 353/23
Rivonia Circle NPC v President of the Republic of South Africa. That section requires a registered, unrepresented
party to submit to the chief electoral officer in the prescribed manner by not later than the deadline stated in the
Election Timetable the names, identity numbers and signatures of its supporters.
MAJIEDT J
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(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 and has signed the prescribed acceptance
of nomination;
. . .
(cA) declaration, signed by the duly authorised representative of the party
confirming that each candidate appearing on the party's provincial list
of candidates referred to in Schedule 1A is registered to vote within
the province in which the election will take place;
(cB) form, in the case of a registered party not represented in the
National Assembly or any provincial legislature, confirming that the
party has submitted, in the prescribed manner, the names, identity
numbers and signatures of voters whose names appear–
(i) in the case of an election of the National Assembly in respect
of regional seats, on the national segment of the voters ’ roll
and who support the party–
(aa) totalling 15 per cent of the quota for that region in the
preceding election, when nominating candidates for
one region; or
(bb) totalling 15 per cent of the highest of the regional
quotas in the preceding election, when nominating
candidates for more than one region provided that
where 15 per cent of the highest of the quotas is not
achieved, that the party may only nominate candidates
for the region or regions as determined by the next
highest quota; or
(ii) in the case of an election of a provincial legislature, on the
segment of the voters ’ roll for the province and who support
the party, totalling at least 1 5 per cent of the quota of that
province in the preceding election, for which the party intends
to nominate candidates;
(d) undertaking signed by each candidate, that that candidate will be
bound by the Code; and
(e) deposit.
MAJIEDT J
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(3)
(a) The Commission may pre scribe the amount to be deposited in terms
of subsection (2)(e);
(b) The amount to be deposited by a registered party contesting an election
of a provincial legislature, must be less than the amount for contesting
an election of the National Assembly; and
(4) Upon request by the Commission, a party must, in the prescribed manner and
form, submit an acceptance of nomination signed by a candidate appearing on
a party list submitted by that party.”
[12] Section 27 of the Electoral Act thus requires a registered, unrepresented party to
submit four kinds of documents to the Commission, “in the prescribed manner”, before
it can contest a national or provincial election, namely—
(a) the names and identity numbers of its supporters;12
(b) the signatures of those supporters;13
(c) lists of candidates to compete in elections and their supporting
documentation;14 and
(d) proof of payment of the required deposit.15
[13] The Commission has, in the Regulations, 16 prescribed the manner for the
submission of these documents. It provides that—
(a) candidate lists and candidate forms must be submitted either to the
Commission’s head office in Centurion or through the OCNS;17
(b) supporter information and supporter signatures must be submitted
through the OCNS;18 and
12 Section 27(2)(cB) of the Electoral Act.
13 Id.
14 Section 27(2)(a) and (b) of the Electoral Act.
15 Section 27(2)(e) of the Electoral Act.
16 Regulations above n 8.
17 Id at Regulation 2(1) and (1A). The same requirement applies to the nomination of an independent candidate
(Regulation 2A).
18 Id at Regulation 2(1)(e).
MAJIEDT J
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(c) the deposit must be p aid either by electronic funds transfer using a
payment reference number generated for that purpose by the OCNS, or
“by using the internet payment gateway functionality available for that
purpose on the OCNS system.”19
[14] Item 9 of the Election Timetable provides—
“(a) Registered parties that intend to contest this election must nominate and submit
a list of their candidates for the election to the chief electoral officer in the
prescribed manner by 08 March 2024.
(b) Nominators of independent candidates that intend to contest this election must
submit their nominations to the chief electoral officer in the prescribed manner
by 08 March 2024.”
[15] Section 31(1)(b) of the Electoral Act makes provision for the compilation of
registered parties’ candidate lists. It reads—
“(1) By not later than the relevant date stated in the election timetable, the chief
electoral officer must–
. . .
(b) compile a list of the registered parties entitled to contest the election
concerned and have the final list of candidates for each of those parties
available.”
Factual background
[16] As stated, the applicants’ complaints generally relate to the alleged
dysfunctionality of the OCNS on 8 March 2024 as well as the inadequacy of the training
and guidance offered by the Commission – which they alleged consisted of a single
virtual workshop six days prior to the 8 March 2024 submission deadline. Despite
overlaps in the applicants’ narratives on these background facts, it is convenient to
adumbrate the facts separately in respect of each applicant.
19 Id at Regulation 3(2).
MAJIEDT J
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African Congress for Transformation
[17] ACT submitted its supporter lists together with the accompanying deposit
payment. However, due to the alleged ad hoc malfunction of the OCNS, it could not
submit its full list of candidates in compliance with s ection 27 of the Electoral Act.
Faced with these challenges, ACT says it was only able to capture, upload, and submit
54 of its 524 candidates (15 for the national elections and 39 for the provincial
elections), resulting in the exclusion of at least 470 of ACT’s candidates from the
national, provincial, and regional election ballot lists. This translates into it being able
to upload only 10.3% of its candidates.
[18] According to ACT, the following problems were encountered with the OCNS:
(a) it randomly removed users from the system and they had to log in again;
(b) it randomly, unilaterally and consistently refreshed, reverting the user to
the website’s home page – resulting in all the progress made prior to the
website refreshing being lost;
(c) it frequen tly stalled, hung, glitched and froze whilst ACT’s
representatives were in the process of capturing and uploading the
relevant nominated candidate lists information;
(d) it operated slowly, was difficult to use, unstable, unreliable, and required
frequent logging off and on;
(e) it randomly rejected identification numbers with no ascertainable or
provided reasons;
(f) it was difficult to use during the period close to the deadline;
(g) unreclaimable wasted hours were spent uploading details when compared
to those times when the portal was working optimally; and
(h) it made it difficult and frustrating for ACT to upload proof of its deposit
payments, a precursor for candidate list submission (eating up precious
time, which should ordinarily have been availabl e for the uploading of
ACT's candidate lists).
MAJIEDT J
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[19] ACT states that its representatives contacted the Commission’s helpdesk to seek
assistance in uploading the candidate lists and information and made some calls for
assistance in uploading candidate lists. Tr oubleshooting attempts suggested by the
Commission’s call centre proved to be ineffective and caused further delays. After the
deadline, ACT sent a letter to the Commission’s Chief Electoral Officer highlighting
the OCNS ’s malfunction and requesting accep tance of the affected candidates. On
12 March 2024, the Commission responded that it had no discretion to condone
non-compliance with the Election Timetable. It could not make ad hoc decisions
relating to requests from candidates, and it was unaware of a ny technical issues with
the OCNS which prejudiced any political parties or independent candidates and,
accordingly, denied ACT’s allegations. On the same day, ACT addressed a letter to the
Commission recording that its non-compliance was a result of the OCNS’s malfunction
and indicating that it would seek legal relief if the matter was not resolved. On
14 March 2024, the Commission responded to the letter reaffirming its previous
response of 12 March 2024.
[20] On 18 March 2024, ACT instituted proceedings in the Electoral Court with a
challenge under section 20(1) of the Electoral Act or, in the alternative, section 20(2)(a)
of the Electoral Act. The aim of these proceedings was to review and set aside what
ACT contended was the Commission’s irrational and incorrect failure and/or refusal to
consider and invoke its powers under section 20(2)(a) of the Electoral Act to amend the
Election Timetable in circumstances where it was allegedly responsible for its online
portal malfunction and not being fit for purpose on 8 March 2024.
Labour Party of South Africa
[21] On the morning of 7 March 2024, 25 volunteers of the Labour Party gathered at
a conference centre to capture and upload the necessary information and supporting
documents to the OCNS. There were also five s enior administrators, overseen by the
Labour Party’s Secretary. Seven more persons joined the team at around 14h30 on
7 March 2024, after a press conference the Labour Party had called that morning. The
whole team worked a full day until 02h00 on the mor ning of 8 March 2024. After a
MAJIEDT J
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short break they all returned to the task at 08h00 until the OCNS closed at 17h00. At
this point, the Labour Party claims to have already gathered 51 542 supporters’
signatures, which was more than the required number of 33 245 to enable it to contest
the elections nationally and in four provinces.
[22] During the two days set aside by the Labour Party to upload and capture the
required information, it alleges that it experienced the following difficulties:
(a) from early morning on 8 March 2024, the OCNS was slow, requiring the
Labour Party to log on and off the OCNS;
(b) it was unable to upload the Excel spreadsheets with signatures onto the
OCNS as it would frequently hang, freeze or crash; and
(c) after contacting the Commissi on, the difficulty uploading bulk uploads
persisted and online deposits were not accepted.
[23] The Labour Party says that the Commission had not picked up the Labour Party’s
payment for a period of 10 days, despite the fact that proof of payment was eventuall y
uploaded onto the OCNS. Additionally, although it appeared that some of the signatures
had been uploaded onto the OCNS, there was no way to verify this, since the system
does not provide the user with any feedback, confirmation, or the time of the report once
the deadline is reached. Moreover, where identity document numbers were rejected,
the reasons given were not clear and there was no facility for the Labour Party’s
Online Portal Administrator (OPA) to dispute or rectify individual cases.
[24] By the time the OCNS closed, the Labour Party had not yet completed uploading
all the required 33 245 signatures and the supporting documents. It had all the hard
copies available for uploading. In respect of the candidate lists, it was able to upload
the details of 12 national office -bearers, but not the supporting documents, and it was
also unable to upload the details of any provincial or regional office -bearers. The
Labour Party was able to upload sufficient supporter information enabling it to
participate in the ballots nationally, in all nine regions of the National Assembly
elections and in the North West Provincial Legislature. It was only able to upload
MAJIEDT J
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candidates for the national ballot. Fifteen minutes after the OCNS closed, the
Labour Party emailed i ts complaints to the Commission which responded that “the
system is closed and reports are not available”.
[25] The Labour Party approached the Electoral Court with an application to have the
Commission’s decision not to amend the deadline fixed in item 9 of t he
Election Timetable reviewed and set aside. It also sought an order directing the
Commission to amend item 9 by re -opening the OCNS for four days or such other
period as the Electoral Court deemed just and equitable to enable the Labour Party and
other affected and newly registered, unrepresented parties to upload the outstanding
information. In the main, its case was that the Commission’s dysfunctional online portal
had made it impossible to comply with the requirements for the submission of
candidates lists, outlined in section 27 of the Electoral Act. The Labour Party made
plain that its grievance was not with the Election Timetable itself, but rather with the
prescribed manner of compliance. The Party claims that compliance could not be
achieved by the deadline in item 9 of the timetable because the prescribed manner of
compliance was too onerous. It further argued that the Commission’s decision to not
amend the Election Timetable was not rationally connected to the purpose for which
the Commission was given the power to make amendments to election timetables under
section 20(2)(a) of the Electoral Act , read with section 5(1)(a), (b) and (c) of the
Electoral Act.
Afrikan Alliance of Social Democrats
[26] AASD also elected to make use of the OCNS to uplo ad its names of supporters
and list of candidates. AASD pointed out that, unlike in the past where physical
submissions could be made at any office of the Commission, the Commission allowed
for physical submissions to be made only to its head office in Ce nturion. Prior to the
date for the uploading, AASD had conducted a trial run on 2 March 2024 with live
submissions training for its data capturers. AASD began uploading supporter names
from 4 March 2024 and completed that uploading process on 7 March 202 4. It was in
the process of uploading candidate lists on 8 March 2024, when the OCNS locked it out
MAJIEDT J
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at 17h00. By that point, only one candidate had been captured. AASD claims that it
had experienced two and a half hours of loadshedding in the morning, which had slowed
down its submission of candidates. The result was that AASD had failed to submit its
candidate list in the prescribed manner by the deadline after which the OCNS did not
allow the further uploading of documents.
[27] After the deadline had pass ed, AASD attempted to contact the Commission
telephonically and then sent a letter to the Commission requesting an extension to
submit the required documents. This request was turned down, with the Commission
responding on 11 March 2024 that it had no discretion to condone non-compliance with
the Election Timetable and that fairness to everyone required the Commission to
enforce strict compliance with it. AASD claims that various problems with the OCNS
partly led to its failure to comply with the requirem ent to submit its candidate lists
timeously. According to AASD, the OCNS is designed so as to first require an
uploading of supporter lists before one can upload candidate lists (this was denied by
the Commission). It also contends that the OCNS was slow , which thwarted its
uploading of the candidate lists. AASD points out that, previously, in other election
cycles, the Commission had allowed for online submissions to close at 21h00.
[28] On 16 March 2024, aggrieved by the Commission’s decision, AASD brought an
urgent interdict in the Electoral Court. It sought an order to have the OCNS re -opened
for the submission of its outstanding lists. Before the Electoral Court, AASD submitted
that its non-compliance with the 8 March 2024 deadline was not due to its n egligence,
intention or oversight, but to the Commission’s dysfunctional online system and the
contributing factor of loadshedding.
The Commission’s response in the Electoral Court
The Commission’s response in the Electoral Court
[29] The Commission’s answers to the averments of the three applicants in the
Electoral Court were generally uniform, but in certain instances they varied to address
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allegations uniquely made by a particular applicant. The overarching answer was that,
instead of blaming the OCNS and o ther extraneous factors like loadshedding, these
parties only had themselves to blame for leaving compliance with the legislative
requirements to the last possible moment, using inefficient methods and then failing to
meet the deadline. Thus, contended th e Commission, poor time management and the
applicants’ decision to use inefficient submission methods are solely to blame for the
non-compliance.
[30] The Commission denied that the OCNS had malfunctioned on 8 March 2024.
According to the Commission, the OCNS worked satisfactorily and was user -friendly,
as was demonstrated by the fact that several unrepresented political parties used it to
submit the details of their supporters, nominate candidates and make payments. Dozens
of represented political parties al so used the OCNS to nominate candidates and make
payments – about 87 parties (76 of which are unrepresented parties) and 24 independent
candidates were able to comply with the requirements by using the OCNS. The
Commission emphasised that an election time table and its deadlines are essential for
the timely conduct of free and fair elections. The Commission submitted that, to ensure
its neutrality and for it to be seen to be neutral and even -handed, it could not afford
some parties ad hoc indulgences not afforded to other parties.
[31] The Commission explained in some detail that all three applicants had been able
to use the OCNS to various significant degrees. In some instances, the applicants were
able to upload the data of thousands of their supporters. According to the Commission,
on their own versions, the applicants concede that the OCNS was fit for purpose,
otherwise they would not have been able to upload all the information that they were
able to. The fact that they were unable to upload all the info rmation was due to their
own tardiness. The Commission gave an example of another unrepresented party which
was only formally registered after 6 March 2024, two days before the deadline, and yet
was ready and able to upload all its documents – the signatures of supporters, candidate
nominations and payment of the required deposit. According to the Commission, this
persuasively demonstrated that, if a party or independent candidate had prepared
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properly and had undergone the training and guidance offered b y the Commission, it
would have experienced no difficulty in complying timeously with the submission
requirements. The Commission also averred that the training it had offered was
adequate and timeous.20
Electoral Court
[32] In the Electoral Court all five applications were dismissed in a single judgment.
The three applications before us were dismissed by a narrow majority of three members
of that Court.21 The minority of two members of the Court would have upheld the three
applicants’ challenges.22 The Court was, however, unanimous in its dismissal of the
other two applications.
[33] The Electoral Court identified the core issues to be first, whether the deadlines
in item 9 were unlawfully prescribed and, second, whether the elections would still be
considered free and fair if the applicants did not partake in them. 23 It found that the
Commission’s insistence on strict compliance with the Election Timetable’s time limits
was not unlawful or irrational. 24 Consequently, it held that the applicants’ failure to
meet the deadlines was a result of the applicants’ unpreparedness and dilatoriness and
not any deficiencies in the OCNS or the Election Timetable itself.
[34] The majority highlighted that the Election Timetable serves as the cornerstone
for regulating and ensuring t he exercise of political rights such as voting, standing for
public office, and the conduct of free and fair elections. Altering the Election Timetable
to accommodate one party’s failure to comply would inherently disadvantage parties
20 There were two training sessions on 22 January 2024 and 28 February 2024.
21 Labour Party of South Africa v Electoral Commission [2024] ZAEC 4 (Electoral Court Judgment). The majority
judgment was authored by Adams AJ, with Zondi JA and Professor Ntlama -Makhanya concurring.
22 Professor Phooko, Shongwe AJ concurring.
23 Electoral Court Judgment above n 21 at para 6.
24 Id at para 14.
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and candidates who a dhered to the deadlines. 25 Citing Inkatha Freedom Party ,26 the
Electoral Court rejected the notion that the Election Timetable could be amended due
to the non -compliance of a single party, emphasising that such an amendment is
unnecessary for free and fair elections and could, in fact, prejudice other parties.27 The
majority agreed with a submission by the Commission that fairness cannot be assessed
on a subjective basis by considering only the circumstances of a small number of
non-compliant political parti es and independent candidates. It would be inherently
unfair to other parties and candidates who had complied with a deadline to permit the
change of that deadline, particularly where the alteration is purely for the convenience
of a party that had failed to comply with the deadline simply due to subjective factors
like dilatoriness, unpreparedness and inefficiency.
[35] The majority further cited Liberal Party ,28 where this Court held that the
alteration of an election timetable because a party had failed to c omply with it is not
necessary for a free and fair election; it would in fact have the converse effect, as it
could prejudice other parties’ election preparations and, indeed, the freeness and
fairness of the elections. It could also open the door for oth er parties to seek further
changes in the Election Timetable.29
[36] In respect of ACT, the majority noted that the OCNS did not malfunction on the
specified date, and ACT itself was able, by using the OCNS, to successfully upload
supporter information and paid deposits on time. 30 As was the case with all
three parties, the Court attributed fault in respect of the non -compliance to ACT’s lack
of preparation and failure to familiarise itself with the OCNS. 31 It held that ACT’s
25 Id at paras 18-9.
26 Electoral Commission v Inkatha Freedom Party [2011] ZACC 16; 2011 JDR 0421 (CC); 2011 (9) BCLR 943
(CC) at para 55.
27 Electoral Court Judgment above n 21 at paras 17 and 19.
28 Liberal Party v Electoral Commission [2004] ZACC 1; 2004 (8) BCLR 810 (CC).
29 Id at para 27.
30 Electoral Court Judgment above n 21 at para 26.
31 Id.
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last-minute approach to submitting documentation and its ineffective use of the OCNS
directly contributed to its failure to meet the requirements set out in the Electoral Act.
[37] The majority noted that, despite having sufficient time to fulfil the requirements,
the Labour Party procrastinated until the last minute, resulting in its failure to meet the
deadline.32 Consequently, the Commission’s decision to adhere to the Election
Timetable was deemed rational, especially considering that the vast majority of parties
successfully utilised the OCN S to compete in the upcoming elections. And in respect
of AASD, the Electoral Court found that the relief sought by AASD, being an
exemption from compliance, was not competent.33 The Court found that AASD failed
to comply with the deadline, not due to the Commission’s fault, but because of its own
ineptitude. The Electoral Court held that AASD did not initiate its process in time to
ensure compliant document uploads.
[38] The minority judgment alluded to the reality of the digital divide in the country
and disagreed with the majority view that the applicants’ non -compliance was of their
own making.34 The digital divide was explained as “the gap between individuals with,
inter alia, skills to use technology, and, on the other hand, those without/limited
expertise”.35 According to the minority, there was a need for more “to be done to
achieve digital literacy to realise the right to political participation in the digital era”.36
[39] Having regard to the evidence adduced by the three political parties, the minority
judgment questioned the efficacy of the OCNS even at its maximum functionality and
noted that several dysfunctionalities still presented even then. The minority judgment
also questioned why usage of the OCNS was rushed through by the Commission and
was made the only option for candidate submissions, instead of having other avenues
32 Id at paras 22-3.
33 Id at para 28.
34 Id at para 52.
35 Id.
36 Id.
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available.37 Lastly, the minority judgment stressed the importance of electoral justice
throughout the entire electoral process and suggested that the challenges faced by the
applicants could cast doubt on the fairness of the elections.38
In this Court
General submissions of the three applicants
[40] Before dealing with the parties’ submissions, it is necessary to record that the
Labour Party filed a further affidavit of some 43 pages in this Court, styled “replying
affidavit”. It submits that it would be in the interests of justice to admit this affidavit.
Furthermore, a large number of affidavits, styled “supporting” and “answering”
affidavits, were filed by some of the co -respondents, purportedly to bolster the
Labour Party’s case. Both these interlocutory matters will be discussed later before
dealing with the merits.
[41] It is convenient to provide a consolidated summation of the three applicants’
submissions due to their substantial imbrication. In respect of jurisdiction, ACT and
AASD submit that urgent, direct appeals to this Court are self -evidently warranted as
the elections are looming on 29 May 2024 and there are several preparatory steps
required in terms of the Election Timetable. 39 They contend that the exclusion of their
candidates would disenfranchise a significant portion of their supporters and disrupt the
electoral process. This implicates their section 18 and 19 constitutional rights and
would jeopardise the fairness of the elections. Lastly they submit that there are good
prospects of success, given the substantial constitutional issues at hand, the compelling
force of the minority judgment, and the three to two split in the Electoral Court.40
37 Id at para 53.
38 Id at para 56.
39 This is how ACT and AASD pleaded jurisdiction. But th ese are facts that relate not to jurisdiction, but to the
interests of justice criterion as part of the enquiry whether leave to appeal directly should be granted.
40 This, too, is mistakenly pleaded in relation to jurisdiction and the same applies here – this relates to interests of
justice and leave to appeal directly, not jurisdiction.
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[42] The Labour Party, who b rings its application as one of direct access, cites
August41 in contending that this matter “concerns the possible disenfranchisement of
many citizens and consequently impacts political rights in terms of section 19 of the
Constitution”. It contends further that the matter is of significant importance and largely
in the public interest. The Labour Party argues that several other rights are also
implicated, like the rights to freedom of association, freedom of conscience and dignity.
The Labour Party chal lenges the concern that a direct access application deprives this
Court of the benefit of the views of other courts does not apply, by noting that the
Labour Party has already approached the Electoral Court for a review of the decision of
the Commission not to amend the deadline for the submission of lists of candidates, and
that review has been dismissed.
[43] Cognisant of the factual disputes regarding the efficacy of the OCNS and the
adequacy of the prior training provided by the Commission, ACT and AASD, who seek
leave to appeal, submit that these can be resolved by having regard to the evidence
presented and by applying the well-established principles applicable to resolving factual
disputes on the papers. They submit that this Court is called upon to adju dicate the
appeal arising from a specialist court and that it has the benefit of the majority and
minority judgments from the Electoral Court.
Submissions on the merits by African Congress for Transformation
[44] ACT contends that the Electoral Court erred in grouping all five applications
together and determining them on the same footing. This, ACT submits, was an
incorrect approach as its complaints were narrower and supported by objective
evidence. Moreover, ACT argues that the Electoral Court’s findings w ere misplaced
and are indicative of the majority judgment’s misconception of the application. ACT
contends that the only impediment that it had to uploading everything onto the OCNS
was the portal’s malfunction and not because it did not have enough time as was held
41 August v Electoral Commission [1999] ZACC 3; 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC).
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by the Electoral Court. The fact that other parties were able to upload information
should not be used to disqualify potential candidates.
[45] ACT submits further that the Labour Party’s evidence of the OCNS malfunction
was similar to ACT’s experience, indicating broader issues. Correspondence from other
parties also raised similar complaints about the online platform. ACT says that it had
made preparations, engaged a team, and had all the necessary documents ready for
submission via the OCNS, c ontradicting the Electoral Court’s claims that submissions
were made at the last minute. ACT states that it made some calls to the Commission
for assistance before the cut -off time, seeking assistance with the OCNS’s technical
issues, which the Commission failed to acknowledge.
[46] According to ACT, t he majority judgment overlooked contradictions in the
Commission’s stance on the functionality of the OCNS, as well as its lack of candour
and failure to disclose any details regarding other political parties’ co mplaints and
difficulties. It submits that the majority judgment’s strict application of the
Plascon-Evans test (discussed below) neglected to consider whether the evidence
tendered by the Commission raised a real, genuine and bona fide dispute of fact
especially when measured against the common cause facts presented. It contends that
the Electoral Court accepted the Commission’s unsubstantiated and unsupported
version regarding similarly placed political parties and did not deal with the evidence
submitted by ACT.
[47] Further, ACT contends that the Electoral Court erroneously found that it left its
compliance with section 27 of the Electoral Act too late, despite evidence from the
Commission, demonstrating that there was in fact sufficient time to upload ACT ’s full
list of candidates. It complains that the majority judgment’s finding, that attendance at
the Commission’s training would have ensured compliance, overlooks evidence of the
inadequate training provided. ACT submits that leaving these issues uncor rected will
erode the rights of ACT members, candidates and supporters as guaranteed by
section 19 of the Constitution.
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[48] ACT seeks the following relief:
(a) condonation for its non-compliance with this Court’s rules on service;
(b) that this Court sets aside the Electoral Court’s dismissal of its application
for the review of the Commission’s decision not to amend the
Election Timetable;
(c) that this Court reviews and sets aside the Commission’s decision to refuse
ACT’s submission of its full candidate list; and
(d) costs.
[49] ACT asserts that the relief sought will not unduly disrupt the Election Timetable
and refers to the Commission’s acknowledgment that there is some flexibility built into
the Election Timetable, allowing for minor delays of a day or so. Additionally, ACT’s
requirement of “not more than an hour or two” for the submission of its full candidate
lists, assuming optimal functionality of the OCNS, falls comfortably within this
established “leeway”. Moreover, ACT notes that the relief sought in volves limited
access to the OCNS that is strictly controlled and limited to parties with legitimate
complaints about the portal’s malfunction and can be managed without compromising
the overall schedule. Lastly, ACT notes that proceeding with the electio ns on
29 May 2024 without remedying this issue risks legitimising an unfair electoral process.
Submissions on the merits by the Labour Party
[50] Regarding jurisdiction, the Labour Party contends that its section 19 political
rights and those of its members and supporters have been unjustifiably limited by these
events. It complains that this will result in the upcoming elections not being free and
fair. As a result, it seeks a declaratory order that the Commission’s conduct in refusing
to amend the Election Timetable to afford the Labour Party an opportunity to meet the
submission requirements was inconsistent with the Constitution and thus invalid. To
remedy this, it is said that the Election Timetable should be set aside, and the
Commission should compile a new election timetable to afford newly registered and/or
MAJIEDT J
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unrepresented parties, like the Labour Party, an opportunity to fully comply with the
section 27 requirements.
[51] The Labour Party submits that it has been unfairly excluded from participating
in the upcoming elections due to its inability to upload the required information on the
OCNS by the deadline of 8 March 2024. It refers to the digital divide which divides
individuals with the skills to use technology and others without expertise. This digita l
divide, the Labour Party argues, threatens the democratic process and undermines the
fundamental right to a fair and free election.
[52] The Labour Party submits that its exclusion was due to the delayed
announcement on 20 February 2024 of the election date by the President, which meant
that the Commission had less than 100 days to complete the prescribed processes
outlined in the Electoral Act. Thus, the condensed Election Timetable resulted in the
Commission issuing rigid timelines to the extent that it di d not make allowance for
technical difficulties with the OCNS which caused the Labour Party’s failure to meet
the deadline. The Labour Party points out that section 20(2) of the Electoral Act
empowers the Commission to amend the Election Timetable if necessary for a free and
fair election.
[53] According to the Labour Party, the Commission had prescribed a manner of
compliance with section 27 of the Electoral Act for unrepresented parties that was too
onerous to comply with. The OCNS presented technical diffi culties that would
“kick out” data capturers and the Commission had no mechanisms in place to deal with
technical glitches and, despite several attempts to communicate with the Commission,
nothing was done to resolve the issue. The timelines were so strin gent that the
Labour Party could not comply with the requirements in the Election Timetable.
[54] The Labour Party submits that its inability to satisfy the section 27 requirement
can no longer be cured by an extension within the existing timeline. It therefo re does
not seek to appeal the decision of the Electoral Court, as the relief sought to extend the
MAJIEDT J
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submission of candidate lists and information has become “academic”. The issue is not
only related to the judgment of the Electoral Court, but rather to the timing of the
imminent elections. Consequently, the Labour Party seeks orders that the Election
Timetable be amended and that the Commission approach the President for a
postponement of the elections.
Submissions on the merits by the Afrikan Alliance of Social Democrats
[55] AASD seeks leave to appeal against the Electoral Court ’s order only insofar as
it impacts its own position. AASD submits that the following factors point to the
Electoral Court’s decisions being irrational:
(a) the Electoral Court overlo oked various issues with the OCNS such as
payment processing and candidate list uploading;
(b) the Electoral Court did not consider the evidence properly with regard to
technical glitches affecting the OCNS, which hindered AASD’s ability to
comply with the Election Timetable;
(c) the Electoral Court neglected to acknowledge the delays and difficulties
in payment processing via the OCNS, hindering AASD’s ability to
complete other necessary tasks;
(d) the Electoral Court failed to consider that inadequate tra ining was
provided by the Commission;
(e) the Electoral Court misdirected itself by accepting evidence that other
parties used the OCNS successfully as a basis for rejecting AASD’s
complaints regarding the problems it faced with navigating the OCNS;
and
(f) there is a need for legal certainty in determining whether the constitutional
right to participate in elections by political parties can be curtailed by the
order of the Electoral Court to a point where the very party tasked with
managing the elections c an limit compliance through their own IT
systems.
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Commission’s submissions
[56] The Commission filed a supplementary affidavit by its attorney objecting to the
Labour Party’s further affidavit and the “supporting” and “answering” affidavits filed
by some of th e co -respondents. The Commission generally in respect of all three
applications contends that this Court lacks jurisdiction and should refuse leave to
appeal, because the applications bear no prospects of success and they all turn
exclusively on factual d isputes. The Commission submits that the cases turn entirely
on two questions of fact: first, did the OCNS malfunction on 8 March 2024 and second,
if it did, was that malfunction the reason that the applicants failed to comply with the
Election Timetable?
[57] The Commission demonstrates the point of the factual dispute with reference to
the case advanced by ACT – not only are its grounds of appeal factual in nature, but
ACT also conceded the purely factual nature of its appeal when it concludes in its
founding affidavit in this Court that the Electoral Court’s ruling against ACT cannot be
sustained “because the finding is premised on an incorrect and unsustainable factual
finding” (Emphasis added). The Commission submits that, while the existence of
factual d isputes may not preclude this Court’s jurisdiction where there is a separate
constitutional question of law, this Court does not have jurisdiction over applications
that entail only disputes of fact. It cites this Court’s dictum in Scheepers where the
Court held that “a factual dispute does not become a constitutional issue because it has
been clothed as a constitutional issue”.42
[58] The Commission contends that there is a further important reason why this Court
does not have jurisdiction in what is simply a factual dispute – the provisions of
section 96(1) of the Electoral Act. That section provides—
42 South African Council for Educators v Deon Scheepers [2023] ZACC 23; [2023] 10 BLLR 981 (CC); 2024 (5)
BCLR 663 (CC) at para 39.
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“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 th e Electoral
Court is subject to appeal or review.”
[59] According to the Commission, that provision means that “ no appeal or review
lies against a decision of the Electoral Court concerning an electoral dispute or a
complaint about an infringement of the Code, save where the dispute itself concerns a
constitutional matter within the jurisdiction of this Court”. 43 Thus, submits the
Commission, not every electoral matter, even one that solely concerns the facts in the
case, can invoke this Court’s constitutional jurisdiction. A contrary interpretation
would render section 96(1) nugatory. Electoral cases that entail only factual disputes
fall in a class where the Electoral Court has the final say.
[60] In respect of the Labour Party’s application, the Commission subm its that the
Labour Party’s application before this Court is not in substance an application for leave
to appeal, but rather an application for direct access in which it seeks to re-litigate the
very same issue that has already been determined by the Electoral Court. It argues that
this is impermissible and barred by the principle of issue estoppel. In this regard, the
Commission points out that the Labour Party brought an urgent application in the
High Court on 6 March 2024, seeking an order that the Com mission should confirm
whether it would amend the 8 March 2024 deadline in the Election Timetable. In that
application, the Labour Party argued that the Election Timetable did not give newly
registered or unrepresented parties enough time to comply. The application was
dismissed with costs because it should have been brought in the Electoral Court.44 The
Commission points out that the Labour Party then took its case to the Electoral Court.
[61] According to the Commission, in seeking to re-litigate the same facts and issues
that were before the Electoral Court, the Labour Party does not make out a case at all
43 African National Congress v Chief Electoral Officer of the Independent Electoral Commission [2009] ZACC
13; 2009 (10) BCLR 971 (CC); 2010 (5) SA 487 (CC) at para 7.
44 The Labour Party of South Africa v El ectoral Commission, unreported judgment of the High Court of South
Africa, Gauteng Division, Pretoria, Case No: O25251/24 (heard on 6 March 2024).
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why issue estoppel should not apply. It submits that w here an issue of fact or law was
an essential element of a prior final judgment, that issue cannot be revisited in
subsequent proceedings before another court, even if a different cause of action is relied
upon or different relief is claimed.
[62] Over and above its general submissions on jurisdiction, the Commission submits
in respect of AASD’s application that it is not in the interests of justice to grant leave to
appeal because the application is fundamentally flawed as it seeks a specific exemption
for AASD which the law does not permit.
[63] The Commission emphasises that, as this Court held in Kham,45 it is bound to
apply the Election Timetable. The same applies to political parties. Absent a challenge
to the Election Timetable and the Regulations that prescribed the use of an electronic
portal and physical delivery at the Commission’s head office, the a pplicants must
comply with them. They cannot circumvent the application of these provisions without
challenging them. The requirements in the Electoral Act and the Regulations must be
regarded as lawful, as the Election Timetable sets the date for compli ance and not the
requirements for compliance. Therefore, a challenge to the Election Timetable is
ineffectual as far as the constitutionality and lawfulness of the relevant provisions in the
Electoral Act and the Regulations are concerned.
[64] The Commission points out that deadlines are of great importance in elections.
It says that electoral authorities, like the Commission, can only facilitate a free and fair
election, as it is constitutionally required to do, where clear rules exist that regulate the
submission and verification of party and candidate information. According to the
Commission, consistent and equitable enforcement of those rules is essential to ensure
that the elections proceed on schedule and that they are free and fair. It also avoids the
risk of the unequal and unfair treatment of parties and candidates. Citing Inkatha
Freedom Party, the Commission submits that elections must be free and fair and, in
45 Kham v Electoral Commission [2015] ZACC 37; 2016 (2) BCLR 157 (CC); 2016 (2) SA 338 (CC) at para 78.
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order to be seen to be so, all parties must be held to the rules, even if it means that they
are excluded from competing.46
[65] Regarding the merits, generally, the Commission, after explaining what the
OCNS is and what its key features are, contends that the OCNS worked. The
Commission submits that it took significant steps to guide and inform parties how to
use the OCNS, and that it made the OCNS available for submissions of supporter
signatures and candidate nominations as early as 26 January 2024 and 23 February 2024
respectively.47 The Commission argues that the fact that the OCNS worked is
demonstrated by the fact that most parties were able to use it to submit key information
to the Commission. According to the Commission, the applicants’ failure to comply
with the item 9 deadline can be fully explained by their lack of understanding how the
OCNS worked, and their failure to commence the submission of the requisite documents
and information timeously.
[66] To demonstrate that the OCNS operated smoothly, the Commission applies for
leave to introduce new evidence, a confirmatory affidavit of Mr Thirona Suknunan, an
employee at Lockdown IT. Mr Suknunan explains that Lockdown IT is a cyber security
operations centre that provides round -the-clock comprehensive monitoring services,
ensuring uptime and system availability, along with end-to-end process monitoring for
critical functions like file uploads. Lockdown IT had been contracted by the
Commission to administer the OCNS website. Lockdown IT’s report show s that the
OCNS webpage had 100% uptime and performed optimally.
[67] The Commission says that if this Court were to hear the appeals, and to grant the
relief sought by the applicants, it would amount to a re -opening of the opportunity to
submit information in terms of section 27. In that event the Commission will not be in
a position to deliver a free and fair election on 29 May 2024. Granting the applicants
46 Inkatha Freedom Party above n 26 at para 55.
47 The submission of candidate information had to await a judgment of this Court on the matter, hence the later
date.
MAJIEDT J
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such an opportunity will inevitably result in new parties competing in the election,
which will require the Commission to reprint ballot papers it has already begun printing.
The Commission would then have no choice but to seek a postponement of the election.
While postponement is possible, it will be very costly – the Commission estimates that
it will cost approximately R587 529 034 to do so.
Evaluation
Interlocutory matters
Labour Party’s further “replying” affidavit
[68] The Labour Party’s application purports to be for direct access. Applications for
direct access are governed by rule 18 of the Rules of this Court. After an applicant has
lodged an application in terms of rule 18(1), a person or party intending to oppose the
application must give notice of that intention to the applicant and the Registrar
within 10 days of lodgement of the application. 48 Thereafter the application will be
disposed of in terms of directions given by the Chief Justice.49 Save for two items that
rule 18(4) says the directions may include, 50 there is no stipulation on what the
directions may contain. So, the content of the directions is at the discretion of the
Chief Justice. Ordinarily, this Court affords an appl icant for direct access an
opportunity to file a replying affidavit in terms of directions issued under rule 18(4).
Affording such an opportunity makes sense since a direct access application is an
application brought at first instance. It is unlike an application brought at first instance
in another court where – by the time it reaches this Court – all sets of
affidavits – including replying affidavits – will have been filed.
[69] The directions issued in the Labour Party’s application did not afford it an
opportunity to file a replying affidavit. In that case, the Labour Party could not file a
48 Rule 18(3).
49 Rule 18(4).
50 Rule 18(4) provides that the directions may include : “a direction calling upon the respondents to make written
submissions to the Court within a specified time as to whether or not direct access should be granted”
(rule 18(4)(a)); or “a direction indicating that no written submissions or affidavits need be filed” (rule 18(4)(b)).
MAJIEDT J
31
replying affidavit as of right. If it wanted to file a replying affidavit despite the fact that
the Chief Justice had not directed it to do so, it ought to have brou ght a substantive
application to file such affidavit. The Labour Party’s attorneys merely enquired from
this Court’s Registrar whether it would be permitted to file a replying affidavit. It then
summarily proceeded to file the affidavit. Absent a direction in terms of rule 18(4) by
the Chief Justice for the filing of a replying affidavit or the grant of leave by this Court
to file such affidavit, we must disregard the Labour Party’s purported replying affidavit
completely51 and that is the position that we adopted in this instance – we had no regard
to that further affidavit.
Commission’s application for leave to adduce further evidence
[70] As stated, in this Court, the Commission sought leave to lead further evidence
by way of what is referred to as a “confi rmatory affidavit” of Mr Suknunan.
Lockdown IT had been contracted by the Commission to administer the OCNS website.
[71] The Commission submits that it is in the interests of justice to introduce this new
evidence because it:
(a) addresses any concern ACT may have regarding hearsay;
(b) is relevant as it affirms that the OCNS did not malfunction;
(c) will be placed before this Court in any event in the Labour Party
application which is a direct access application and would thus be before
this Court as a court of first instance; and
(d) it confirms the evidence that was before the Electoral Court.52
51 Although the Supreme Court of Appeal judgment in Hano Trading CC v JR 209 Investments (Pty) Ltd 2013 (1)
SA 161 (SCA); [2013] 1 All SA 142 (SCA) at para 13 was obviously not about this Court’s rule 18, the principle
enunciated there bears relevance. That judgment cited with approval Standard Bank of SA Ltd v Sewpersadh 2005
(4) SA 148 (C) at paras 12-3.
52 In relation to (a) and (d), mention was made by Mr Walter Ramabela Sheburi, the deponent to the Commission’s
answering affidavit filed in the E lectoral Court, of the facts deposed to by Mr Suknunan in the “confirmatory
affidavit” now under discussion. It seems that what Mr Sheburi said was not as detailed as the content of the
“confirmatory affidavit”. In any event, it is common cause that – in this regard – Mr Sheburi deposed to facts of
which he had no personal knowledge and no affidavit was filed before the Electoral Court to confirm those facts.
Before that Court, ACT took issue with the admissibility of Mr Sheburi’s assertions as they were hearsay. The
attempt at introducing Mr Suknunan’s evidence in this Court is plainly calculated to close that loophole, i.e. to
confirm and expand on what Mr Sheburi had said before the Electoral Court.
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[72] The test for the admission of further evidence on appeal is well-established:
(a) an applicant must satisfy the court that it was not remiss or negligent in
failing to adduce the new evidence in the court of first instance;
(b) there must be a prima facie likelihood of the truth of the new evidence;
(c) the evidence should be of material relevance and must not prejudice the
other party.53
[73] Rule 31 of this Court’s Rules makes provision for the admission in this Court of
further evidence not appearing on the record in circumscribed instances. The facts
emanating from that further evidence must be relevant, common cause or
incontrovertible or of an official, scientific, technical or statistical nature capable of easy
verification.
[74] While the evidence from Lockdown IT is relevant, it is neither common cause,
incontrovertible or of an official, scientific, technical or statistical nature capable of easy
verification. There is significant prejudice to the applicants if the further affidavit were
to be admitted. They will be deprived of an opportunity to investigate the facts
regarding the first central issue in this case, whether the OCNS had malfunctioned on
8 March 2024 and, to some extent, on 7 March 2024. They will also not be in a position
to adduce evidence controverting that of Mr Suknunan about the efficacy of the OCNS.
The same holds true for the evidence relating to the cost of the postponement of the
elections – there will be no opportunity to interrogate and attempt to controvert that
evidence. The prejudice outweighs the countervailing factor of relevance, which has
already been found to exist.
[75] The Commission contends that, as it has placed this evidence befo re this Court
in the Labour Party’s direct access application as part of its answer, the evidence is in
any event already before this Court. But that misses the point – on first principles
admissibility in one case does not automatically translate into ad missibility in another
53 Moor v Tongaat-Hulett Pension Fund [2018] ZASCA 83; [2018] 3 All SA 326 (SCA); 2019 (3) SA 465 (SCA)
at para 36.
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case. That is even more so where the first case in which admissibility is established is
one of first instance proceedings, and the other case is one on appeal. Self -evidently,
completely different considerations apply in the two instances. In the first instance it is
original evidence and on appeal it constitutes new evidence in that appeal. Admission
on appeal as new evidence faces a much higher hurdle in addition to those of relevance
and admissibility required in original evid ence. Those additional requirements have
already been enumerated and need not be repeated.
[76] For these reasons, the Commission’s application to lead new evidence cannot
succeed. The final interlocutory matter for discussion is the status of the numerous
affidavits filed either as “supporting” or “answering” affidavits by the co-respondents.
Co-respondents’ “supporting” / “answering” affidavits
[77] A total of 19 so-called “supporting” or “answering” affidavits have been filed.
In its answering affidavits filed in the ACT, Labour Party and AASD applications, the
Commission has responded to the cases advanced by the three applicants in those
matters. In the circumstances of this case, in particular the extreme urgency with which
this matter is being litigated, it is unfair, unjust and prejudicial to require of the
Commission to respond – on all fronts, as it were – to the multiplicity of affidavits filed
by entities that make common cause with the applicants but do not come out and assert
that they too are applicants and seek relief as applicants. That is just too much for the
Commission to contend with in the circumstances of this case.
[78] A further factor weighing against the admission of the affidavits in the present
instance is their dubious evidential value. They consist of bald averments without
substantiating proof. Ultimately the overriding consideratio ns are fairness and
prejudice. The unfairness and prejudice in this case are self-evident. For these reasons,
the further affidavits of the co-respondents stand to be disregarded.
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34
Merits of the main applications
General
[79] The right to vote is of significant importance in our democracy. That must be
understood against the backdrop of the calculated denial by the apartheid regime of this
most basic right of all citizens. This denial was accompanied by the alternative policies
like the creation of the dreaded Bantustans and separate, inferior and ineffectual
legislatures for Indian and so-called Coloured people. These policies were not intended
to enhance democracy, or the right to vote, but to deny it. Their true objective was to
deepen the legislative wedge between South Africans of different races, to divide and
rule.
[80] This Court in August eloquently enunciated the importance of the right to vote—
“Universal adult suffrage on a common voters’ roll is one of the foundational values of
our entire constitutional order. The achievement of the franchise has historically been
important both for the acquisition of the rights of full and effective citizenship by all
South Africans regardless of race, and for the accomplishment of an all -embracing
nationhood. 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 of personhood.
Quite literally, it says that everybody counts. In a country of great disparities of wealth
and power it declares that whoever we are, whether rich or poor, exalted or disgraced,
we all belong to the same democratic South African nation; that our destinies are
intertwined in a single interactive polity. Rights may not be limited without
justification and legislation dealing with the franchise must be interpreted in favour of
enfranchisement rather than disenfranchisement.”54
[81] Within this contextual importance of the right to vote, the Commission is
constitutionally constrained by section 190 of the Constitution to ensure that free and
fair elections are conducte d. That is a manifestation and implementation of the
section 19 right to vote. The Electoral Act explicates how the Commission is to perform
54 August above n 41 at para 17.
MAJIEDT J
35
the constitutional obligation in section 190 of the Constitution. And the Electoral
Commission Act expounds the Commission’s powers, functions and duties.
[82] Like all organs of state, in accordance with the doctrine of legality, the
Commission has only those powers granted to it by the law, that is, the Constitution and
legislation, be it principal (Acts) or subsidiar y legislation (Regulations, etc). Rigid
adherence to these instruments by both the Commission and all parties is required so
that there is fairness to all parties 55 and to ensure that the Commission can properly
arrange a free and fair and smooth running e lection.56 Absent rigid adherence the
efficiency and fairness requirements will be undermined.57 That requires deadlines, like
those contained in the Election Timetable to be strictly adhered to. Fairness to
compliant parties would be subverted if parties who fail to comply with a regulation are
nonetheless permitted to contest an election. The Commission does not have the power
in law to condone non -compliance with the Electoral Act , the Regulations and the
Election Timetable.58 This rigidity is tempered by the provisions of section 20(2) of the
Electoral Act, which grant the Commission the power to amend the Election Timetable.
That power is to be exercised only if it considers the amendment necessary for a free
and fair election or if the voting day is postponed in terms of section 21.
[83] Where a party fails to comply with the Election Timetable, or any other election
regulation, that party will be excluded from the election. That follows by operation of
law. The Commission is bound by the provisions of the Electoral Act and the
Electoral Commission Act and it has no power to condone non -compliance.59 This
Court has emphasised that “the Commission must not be placed in a situation where it
has to make ad hoc decisions about political parties and candidat es who have not
55 Inkatha Freedom Party above n 26 at para 52; New National Party of South Africa v Government of the Republic
of South Africa [1999] ZACC 5; 1999 (3) SA 191 (CC); 1999 (5) BCLR 489 (CC) at paras 12-3; Kham above n
45 at para 78.
56 Inkatha Freedom Party above n 26 at para 55.
57 Id; see also Good Party v Electoral Commission of South Africa [2023] ZAEC 4 at para 16.
58 Inkatha Freedom Party above n 26 at para 57.
59 Liberal Party above n 28 at paras 22 and 25.
MAJIEDT J
36
complied with the Act”.60 The second judgment criticises the Commission for what it
calls the Commission’s inflexible stance in refusing to consider amending the timetable.
That criticism is unfounded. I need say no more than to reiterate that there is
unequivocal authority of this Court that the Commission has no power to amend the
timetable, save where it is necessary to ensure a free and fair election or the voting day
is postponed.61
The Labour Party’s application for direct access
[84] Rule 18 regulates direct access to this Court. 62 The overriding consideration is
the interests of justice. A proper case must be made out – direct access is not simply
60 Inkatha Freedom Party above n 26 at para 55.
61 Inkatha Freedom Party above n 26; Liberal Party above n 28.
62 Rule 18 reads—
“(1) An application for direct access as contemplated in section 167(6)(a) of the
Constitution shall be brought on notice of motion, which shall be supported by an
affidavit, which shall set forth the facts upon which the applicant relies for relief.
(2) An application in terms of subrule (1) shall be lodged with the Registrar and served on
all parties with a direct or substantial interest in the relief claimed and shall set out–
(a) the grounds on which it is contended that it is in the interests of justice that
an order for direct access be granted;
(b) the nature of the relief sought and the grounds upon which such relief is based;
(c) whether the matter can be dealt with by the Court without the hearing of oral
evidence and, if it cannot;
(d) how such evidence should be adduced and conflicts of fact resolved.
(3) Any person or party wish ing to oppose the application shall, within 10 days after the
lodging of such application, notify the applicant and the Registrar in writing of his or
her intention to oppose.
(4) After such notice of intention to oppose has been received by the Registrar or where
the time for the lodging of such notice has expired, the matter shall be disposed of in
accordance with directions given by the Chief Justice, which may include–
(a) a direction calling upon the respondents to make written submissions to the
Court within a specified time as to whether or not direct access should be
granted; or
(b) a direction indicating that no written submissions or affidavits need be filed.
(5) Applications for direct access may be dealt with summarily, without hearing oral or
written argument other than that contained in the application itself: Provided that where
the respondent has indicated his or her intention to oppose in terms of subrule (3), an
application for direct access shall be granted only after the provisions of subrule (4)(a)
have been complied with.”
MAJIEDT J
37
there for the asking.63
[85] The Labour Party accepts that if the issue estoppel point is dec ided against it,
that puts an end to its case. For that reason, that is a good place to start. Issue estoppel
is a genus of the exceptio res judicata (a matter already judged).64 It augments the ambit
of the exceptio res judicata by relaxing some of its requirements. T he common law
requirements of res judicata that the relief claimed and the cause of action be the same
in both the case in question and the earlier judgment are relaxed where it is appropriate
to do so. Where the facts and circumstances justify the relaxation of these requirements,
the remaining requirements are that a second case cannot concern the same parties and
the same issue that arose in a prior case. The latter determination involves an enquiry
into whether an issue of fact or law was an essential element of a prior judgment on
which reliance is placed.65 It matters not that the cause of action and the relief sought
are different. Despite its name, issue estoppel remains a defence of res judicata. The
principle that each case must be assessed on its own facts and considerations of fairness
and equity, not only to the parties but also to others, will apply.66
[86] It is plain that the parties here are the same and the same issue arises, namely the
freeness and fairness of the election as an alleged result of the Labour Party’s inability
to comply with the requirements of section 27 of the Electoral Act due to the alleged
malfunction of the OCNS. The Electoral Court has already decided the question of the
malfunction against the Labour Pa rty. Issue estoppel bars the Labour Party from
bringing this question before us as if it has not litigated previously. Also, there is no
reason, and none is seriously suggested by the Labour Party, why it could not, like ACT
and AASD, have appealed the Electoral Court’s order. The Commission suggests that
63 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the
National Assembly [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) at para 23.
64 Res judicata as a defence means that a case has already been decided and cannot be re-litigated.
65 Mkhize N .O. v Premier of the Province of KwaZulu -Natal [2018] ZACC 50; 2019 (3) BCLR 360 (CC) at
para 37, citing Smith v Porritt [2007] ZASCA 19; 2008 (6) SA 303 (SCA) at para 10; Democratic Alliance v
Brummer [2022] ZASCA 151 at para 13.
66 Smith above id at para 10; Brummer id at para 13.
MAJIEDT J
38
the direct access application is a stratagem by the Labour Party to evade the
unfavourable evidence adduced in the Electoral Court. It is not necessary to adjudge
this point. It suffices to state that the reasons advanced by the Labour Party as to why
it seeks leave from this Court for direct access and not leave to appeal directly to this
Court, fail to pass muster.
[87] First, it contends that it could not have sought the relief it now seeks in an appeal.
That explanation is singularly unpersuasive, because the Commission indicated in the
Electoral Court that if the Labour Party’s relief was granted, it would necessitate a
postponement of the elections. Under section 172(1)(b) of the Constitution, this Court
has wide remedial powers, bounded only by considerations of justice and equity.67 This
Court can grant relief beyond that sought in an applicant’s notice of motion.68
[88] Second, the Labour Party claims that the political rights of its members and
supporters were not before the Electoral Court. But that is not true – in that Court, it
expressly placed reliance on its and its supporters’ section 19 political rights. In any
event, as stated, the question of the alleged infringement of those rights is inex tricably
linked to the factual dispute about the alleged malfunction of the OCNS.
[89] Lastly, the Labour Party contends that it is contradictory for the Commission to
rely on issue estoppel and in the same breath plead that this Court lacks jurisdiction
since this is a mere factual dispute. That submission is misconceived, the Labour Party
cannot be permitted to bypass the provisions of section 96(1) of the Electoral Act in
circumstances where it has already had a hearing on the same issue in the Electoral
Court, and lost.
67 Electoral Commission v Mhlope [2016] ZACC 15; 2016 (5) SA 1 (CC); 2016 (8) BCLR 987 (CC) at para 83.
68 Economic Freedom Fighters v Speaker of the National Assembly [2017] ZACC 47 ; 2018 (2) SA 571 (CC) ;
2018 (3) BCLR 259 (CC) at para 211.
MAJIEDT J
39
[90] Consequently, the Commission’s reliance on issue estoppel is meritorious and
must be upheld. What remain are the applications for leave to appeal directly to this
Court brought by ACT and AASD.
ACT’s and AASD’s applications to appeal directly to this Court
[91] As explicated, the central issues are:
(a) did the OCNS malfunction on 8 March 2024; and
(b) if it did malfunction, was that the reason for the applicants failing to
comply with the Election Timetable?
[92] I will assume, without deciding, that this Court’s jurisdiction is engaged.69 What
bears consideration next is whether it is in the interests of justice to grant leave to appeal.
One of the main factors in this enquiry is whether there are reasonable prospects of
success.70 That question must be decided on the papers before us on which there are
evidently substantial disputes of fact. What is required, is to determine whether there
is indeed a genuine, bona fide factual dispute between the parties. The various
difficulties allegedly enco untered in their use of the OCNS by ACT and AASD on
8 March 2024 have already been outlined. The Commission countered these allegations
with countervailing allegations, supported by positive evidence that the two applicants’
failure to comply was due, not to the malfunction of the OCNS, but to their having
waited until the last day (8 March 2024), shortly before the 17h00 deadline to upload
the documentation. This delay was exacerbated by their:
(a) misunderstanding of what needed to be done; and
(b) use of the most inefficient method of manual instead of bulk uploading.
69 N V M obo V K M v Tembisa Hospital [2022] ZACC 11; 2022 JDR 0608 (CC); 2022 (6) BCLR 707 (CC).
70 S v Boesak [2000] ZACC 25; 2001 (1) BCLR 36 (CC); 2001 (1) SA 912 (CC) at para 12; Paulsen v Slip Knot
Investments 777 (Pty) Limited [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR 509 (CC) at para 29.
MAJIEDT J
40
[93] The approach to resolve disputes of fact on the papers is well -established.
Elaborating on the well -known Plascon-Evans71 approach, the Supreme Court of
Appeal in Wightman72 stated—
“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied
that the party who purports to raise the dispute has in his affidavit seriously and
unambiguously addressed the fact said to be disputed. There will of course be instances
where a bare denial meets the requirement because there is no other way open to the
disputing party and nothing more can therefore be expected of him. But even that may
not be sufficient if the fact averred lies purely within the knowledge of the averr ing
party and no basis is laid for disputing the veracity or accuracy of the averment. When
the facts averred are such that the disputing party must necessarily possess knowledge
of them and be able to provide an answer (or countervailing evidence) if the y be not
true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial
the court will generally have difficulty in finding that the [ Plascon-Evans] test is
satisfied.”73
[94] The manner in which a dispute of fact may arise is well -known and has been
authoritatively outlined in Room Hire.74 The present instance falls under the first of the
three scenarios enumerated in Room Hire. The Commission has denied all the material
allegations by the applicant relating to the two central issues, the alleged malfunctioning
of the OCNS and that this was what caused the applicants’ non -compliance.
The Commission has proceeded beyond mere denials and has put up positive facts to
the contrary, and those facts are neither untenable nor far-fetched.
71 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51 ; 1984 (3) SA 623 (A) at
634E-635C:
“where an applicant who seeks final relief on motion she must in the event of conflict, accept
the version set up by her opponent unless the latter’s allegations are, in the opinion of the court,
not such as to raise a real, genuine or bona fide dispute of fact or are so far -fetched or clearly
untenable that the court is justified in rejecting them merely on the papers.”
This approach has been endorsed by this Court for the resolution of constitutional disputes in Rail Commuters
Action Group v Transnet Ltd t/a M etrorail [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005 (4) BCLR 301 (CC)
at para 53.
72 Wightman t/a J W Construction v Headfour (Pty) Ltd [2008] ZASCA 6; [2008] 2 All SA 51 2 (SCA); 2008 (3)
SA 371 (SCA).
73 Id at para 13.
74 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163.
MAJIEDT J
41
[95] Motion proceedings are unsuitable to decide probabilities. In instances where
final relief is sought, motion proceedings are aimed at resolving issues of law based on
common cause facts. And where disputes of fact arise, absent a referral for oral
evidence, the Plascon-Evans approach, as amplified in Wightman, must be employed.75
There is no basis to reject the Commission’s denial that these two applicants’ failure to
comply with the Election Timetable was not due to the malfunction of the OCNS, but
due to their own procrastination and ineptitude. The Commission supported its denial
with positive facts. There is thus a genuine dispute of fact on the papers.
[96] The second judgment expresses disquiet about applying the well -established
Plascon-Evans approach to resolving factual disputes on papers in constitutional issues.
But this Court has pertinently approved that approach in Rail Commuters,76 and has
done so in subsequent cases, the most recent of which are Mtolo and
Democratic Alliance.77 Mtolo concerned the implication of the fundamental rights to
access to housing, dignity and basic education. Tellingly, in Democratic Alliance this
Court had to decide issues relating to section 19 political rights in respect of the 2021
local government elections. The c ase concerned the local government election
timetable and the constitutionality of the re -opening of the candidate nomination
process. There is no reason to depart from the test in constitutional cases.
[97] My Colleague expresses concern about the disadvanta ge to an applicant who is
compelled to approach a court for relief by way of application, for instance in urgent
applications. Courts are generally sympathetic to applicants in urgent applications and
often permit papers to be amplified in reply, provided that the respondent is granted an
75 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) ; 2009 (4) BCLR
393 (SCA) at para 26.
76 Rail Commuters above n 71 at para 55.
77 Mtolo v Lombard [2021] ZACC 39; 2022 (9) BCLR 1148 (CC) at para 38; Democratic Alliance in re Electoral
Commission of South Africa v Minister of Cooperative Governance [2021] ZACC 30; 2022 (1) BCLR 1 (CC) at
para 40.
MAJIEDT J
42
opportunity to file further answering affidavits. 78 An adjudicator of fact will carefully
scrutinise denials and controverting facts to determine whether they raise genuine and
good faith disputes. A court will not lightly deprive a litigant who is obliged by law to
bring proceedings by way of notice of motion and who seeks to discharge an onus of
proof of an opportunity to adduce oral evidence or to cross -examine deponents to
answering affidavits.79 In advocating an alte rnative approach to determine the factual
dispute based on the common cause facts and the probabilities, the second judgment
ignores the caution expressed by the Supreme Court of Appeal in Zuma.80
[98] It is unclear why constitutional issues should receive different treatment. Due to
its supremacy, the Constitution and the values that it embodies permeates all areas of
the law. So , too, with constitutional issues, including and in particular in respect of
alleged infringements of fundamental rights. 81 In any e vent, we are bound by
Rail Commuters, Mtolo and Democratic Alliance and the second judgment has not
attempted to show why those cases were wrongly decided on this point. As has been
demonstrated, this Court has applied the test in cases where fundamental rights are
implicated,82 and in a case similar to this one implicating section 19 political rights and
free and fair elections.83
[99] Tellingly, as I will presently demonstrate, even on their own version the
applicants would in any event not have complied with the requirements by the deadline.
They waited until the last moment, employed the most inefficient methods to upload
documents and completely misunderstood what had to be done. This evidence of their
78 Lagoon Beach Hotel (Pty) Ltd v Lehane N.O. 2016 (3) SA 143 (SCA).
79 Under Uniform Rule 6(5)(g). See AECI Ltd v Strand Municipality 1991(4) SA 688 (C) at 698J-699A; Freedom
Under Law v Acting Chairperson; Judicial Service Commission 2011 (3) SA 549 (SCA); [2011] 3 All SA 513
(SCA) at para 48.
80 Zuma above n 75 at para 26.
81 Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South
Africa [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 44; Beadica 231 CC v Trustees,
Oregon Trust [2020] ZACC 13; 2020 (5) SA 247 (CC); 2020 (9) BCLR 1098 (CC) at para 29.
82 Mtolo above n 77 and Democratic Alliance above n 77.
83 Democratic Alliance id.
MAJIEDT J
43
ineptitude and laxity does not come from the Commission, but from their own mouths.
There is no need to apply Plascon-Evans – they are hoisted by their own petard.
[100] The Plascon-Evans test has stood the test of time and has been reaffirmed more
than once by this Court in binding precedent. Jettisoning a trie d and tested approach
(“pedigreed” according to the second judgment) that has served us well for many
decades in these circumstances is ill-conceived.
[101] There is a further important reason why the second judgment’s concerns about
the Plascon-Evans test is fallacious. ACT and AASD approached the case on the basis
that there are factual disputes, and that they can be resolved by having regard to the
evidence presented and by applying the well -established principles applicable to
resolving factual disputes on the papers. They said so in their papers before the
Electoral Court and in their submissions in this Court. 84 The second judgment
impermissibly seeks to redesign the issues beyond the pleadings.85
[102] In applying this test, the Commission’s version must plain ly prevail. The
Commission’s contention that the OCNS functioned properly and was fit for purpose is
well made. For context, the timeline preceding the promulgation of the
Election Timetable bears emphasis. In New Nation,86 this Court declared the Electoral
Act inconsistent with the Constitution and, therefore, invalid to the extent that it did not
allow an individual adult citizen to stand for election to the legislative bodies at national
and provincial levels without having to be a member of a politica l party. This Court
suspended that declaration of invalidity for 24 months to afford Parliament the
opportunity to correct the constitutional defect within that period. The Electoral
Amendment Act87 is the legislation that was passed to correct that constitutional defect.
84 See [43] above.
85 Molusi v Voges N.O. [2016] ZACC 6; 2016 (3) SA 370 (CC); 2016 (7) BCLR 839 (CC) at paras 27-8; Fischer
v Ramahlele [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA 395 (SCA) at paras 13-4.
86 New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11 ; 2020 (6) SA 257
(CC); 2020 BCLR 950 (CC).
87 1 of 2023.
MAJIEDT J
44
It amended the Electoral Act to provide in section 27 for new, unrepresented parties to
submit supporter names, identity numbers and signatures. The Amendment Act was
assented to on 13 April 2023 and commenced on 19 June 2023.
[103] On 26 January 2024 the Commission opened the OCNS for parties to capture
lists of supporters’ signatures, 42 days before the deadline of 8 March 2024. On
23 February 2024, two weeks before the deadline, the Commission enabled the OCNS
for the capturing of candida te information and forms. From these dates, parties could
upload supporters’ signatures and candidate information respectively.
[104] The Commission avers that the OCNS is user friendly. This was not disputed,
or cannot be gainsaid. In this respect, four salient features of the OCNS bear mention:
(a) It permits bulk uploads – parties can, instead of doing it manually one by
one, compile electronic spreadsheets (also offline) using the OCNS
formatted spreadsheets, then upload those spreadsheets in bulk onto th e
OCNS.
(b) Parties can upload signed signature and candidate forms – the
Commission requires scanned versions of supporters’ signatures and
signed candidate forms to be uploaded; they cannot be put onto
spreadsheets. The scanned versions can be uploaded onto the OCNS.
(c) Multiple users can be assigned to the OCNS – a party must register an
OPA who is the primary person for the party which has access to the
OCNS. The OPA can assign multiple sub-users who can simultaneously
perform different tasks on the OCNS.
(d) Parties can upload documents in any sequence – supporter and candidate
information can be uploaded before paying a deposit. All that is required
is a payment reference number before capturing candidates. This is
obtained by indicating on the fo rm which elections the party intends to
contest. Parties can thereafter upload supporter and candidate
information and pay the deposit by using their payment reference number.
MAJIEDT J
45
[105] There is ample objective evidence beyond the Commission’s say so that the
OCNS worked. First, many other parties were able to comply with the deadline using
the OCNS – 87 parties were able to comply with the section 27 requirements; 33 of
those were unrepresented parties that managed to submit all the documents required to
contest all the elections. Eighteen additional unrepresented parties submitted all
documents required to contest all the provincial elections. Two parties, including one
unrepresented party, managed to submit all their documents on 7 and 8 March 2024. At
the hearing it was contended that it is improper to compare the applicants’ experiences
with the use of the OCNS. But that is exactly the point with a defence of objective
impossibility relied upon by the applicants – what are the objective facts, gleaned from
the experience of the use of the OCNS by a great number of parties, not the subjective
experience or views of two parties.
[106] Second, on the objective evidence, many parties were able to upload a large
number of documents in the last half hour before the deadline. Thousands of supporters
and dozens of candidates were uploaded. This was done both manually (for example
by Basic Income Grant SA) and in bulk (for example by the UMkhonto weSizwe Party
and the Patriotic Alliance). Lastly and tellingly, the OCNS was used without any
problem at all for both the 2019 general national and provincial elections and the 2021
local government election. This further fortifies the Commission’s contention that the
OCNS was fit for purpose and was functional at all material times.
[107] The applicants were the authors of their own misfortune. They failed, as a
reasonable prudent political party would, to:
(a) ensure that they do all things necessary to comply with section 27 of the
Electoral Act, in particular the deadlines in the Election Timetable;
(b) gain a proper understanding of what was required of them in terms of the
Electoral Act and the Election Timetable; and
(c) utilise the most efficient methods to meet the requirements in the Election
Timetable, particularly since they had waited so late to do so.
MAJIEDT J
46
[108] Having waited until some two hours before the deadline, ACT chose the most
inefficient method for uploading and failed to make use of the last resort option,
physical delivery of the lists to the Commission’s head office in Centurion. ACT only
started uploading its candidates at 14h53 on 8 March 2024 and its last at 16h46. It chose
to manually upload the candidate lists instead of using the bulk upload function.
Further, ACT could have physically delivered the lists to the Commission’s head office
as ACT is based in Gauteng. Waiting from 23 February 2024 until two hours before
the deadline and then using the most inefficient method of uploading was unreasonable
and imprudent.
[109] ACT adduces no evidence in support of its b ald averment that the OCNS was
not fit for purpose and that it “operated slowly”, was “difficult to use”, “hung”, “froze”
and “glitched”. There are no videos, expert reports or screenshots. ACT’s reliance on
the videos of the Land Party is misplaced – they depict a person manually uploading
candidates one by one. It is of considerable significance that ACT was able to
successfully upload its supporter information and pay its deposit on the OCNS on
8 March 2024. It would not have been able to do so if the OCNS was not fit for purpose
or had malfunctioned. It is further of some significance that ACT did not complain
about the OCNS until it made the first telephone call to the Commission at 14h00 on
8 March 2024. This is a further factor that redounds in favour of the Commission’s
version.
[110] AASD only captured its first candidate a second before the deadline (at
16h59:59). It appears to have waited until the very last moment apparently because it
laboured under a misapprehension of how the OCNS worked. On its mistaken
understanding of how the OCNS functioned, it first had to upload all the supporter
information, before uploading candidate lists. In truth, AASD could have done it in any
sequence because it had a payment reference number. AASD only submitt ed a
candidate list for one election, in the Free State Provincial Legislature. But it did not
comply with section 27(2)(cB) for the Free State election, because it did not submit the
signatures of the required number of supporters by the deadline.
MAJIEDT J
47
[111] Plainly, AASD only has itself to blame for its non-compliance. The further two
grounds on which it relies for its default do not pass muster. First, it says that in past
elections the Commission had fixed different deadlines. That is of no relevance
whatsoever – the timetable set for this election applied and had to be complied with.
Second, AASD blames loadshedding. This, too, does not avail AASD – loadshedding
has become a distressing reality of South African life and one has to plan for that
eventuality.
[112] There is a further reason why AASD’s application must fail. It seeks
impermissible relief – in essence AASD seeks an ad hoc exemption from compliance
and an extension of the deadline only for itself. This is untenable in law – even if the
OCNS did not work and that had caused AASD not to comply, it could justify different
relief like an amendment to the timetable to enable all parties to comply and a
postponement of the election. It could never justify an ad hoc individualised exemption
for AASD alone to the exclusion of all other parties, as this Court held in Liberal
Party.88
[113] To sum up: the OCNS was functional and fit for purpose on 7 and 8 March 2024.
ACT and AASD only have themselves to blame for their non -compliance. There are
no reasonable prospects of success and leave to appeal must be refused.
[114] The second judgment proposes a declaration of rights as alternative relief.
Although that was also suggested at the hearing by the Commission, it found no favour
at all with the other parties. Given the outcome, it is not necessary to say anything more
about it.
88 Liberal Party above n 28.
MAJIEDT J / BILCHITZ AJ
48
Costs
[115] The parties had approached this Court to assert their constitutional rights and
they are thus deserving of Biowatch89 protection.
Conclusion
[116] For these reasons, the Court issued the orders of 10 May 2024.
BILCHITZ AJ:
Introduction
[117] I have had the pleasure of reading the judgment authored by my
Colleague Majiedt J (first judgment). I rely in this judgment largely on the detailed
factual matrix as described by him except where there are differences in our
understanding of the facts. I agree with the dismissal of the Labour Party’s application
for direct access on the grounds of issue estoppel. I also agree with the dismissal of
direct leave to appeal in the case concerning the Afrik an Alliance of Social
Democrats (AASD) but only on the grounds that there are lack of prospects of success
due to the relief sought not being permissible. I, however, would have granted leave to
appeal and limited relief in the case concerning the African Congress for
Transformation (ACT). I also disagree with a number of the findings the first judgment
makes in relation to important procedural questions that arose in the course of deciding
this case.
[118] I should, in advance, indicate that the judgments in these cases were prepared in
great haste in seeking to provide the parties with reasons prior to the elections on
89 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC).
BILCHITZ AJ
49
29 May 2024. It would have been desirable to have more time to consider many of the
significant issues they raise but urgency has required that we produce reasons under the
pressure of severe time constraints.90
[119] In what follows I will address four issues. First, I indicate why the well -known
Plascon-Evans rule should not be applied to motion proceedings in
circumstances – such as those that ar ose in the ACT case – where applicants have no
possibility of instituting action proceedings. Secondly, I consider the failure of the
Commission to consider amending the Election Timetable in the face of numerous
complaints about its internet portal. I f ind that organs of state have a duty to be
responsive to individuals – indeed, they must properly investigate and consider the
complaints that are received and determine whether they impact on the exercise of their
mandates. In this case, the Commission needed to consider the impact of the numerous
complaints it received on the fundamental rights at stake enshrined in section 19 of the
Constitution – the right to vote, the right to stand for public office and the right to free,
fair and regular elections. I, consequently, find that its failure to consider amending the
Election Timetable is reviewable in terms of several grounds of the Promotion of
Administrative Justice Act91 (PAJA). Thirdly, I address what would constitute just and
equitable relief in the ACT case and find that the ACT is entitled to a declaration of
rights. Finally, I raise difficulties I have with the first judgment’s findings relating to a
number of unusual interlocutory requests to admit additional affidavits in Labour Party
and ACT.
The application of the Plascon-Evans rule where action proceedings are not available
[120] The central factual dispute that was raised in ACT related to the functioning of
the OCNS. The applicant suggests that the system was not “fit for purpose” and makes
a number of complaints that it was subject to several glitches. These included that it
“operated slowly, was difficult to use, unstable, unreliable and required frequent
90 The Court is, of necessity, often placed in such circumstances in election matters: see Inkatha Freedom Party
above n 26 at para 6.
91 3 of 2000.
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logging ‘off’ and ‘on’”. The OCNS, it was claimed, also “hung”, “glitched” and “froze”
while ACT was capturing and uploading its candidate lists, particularly on
8 March 2024 prior to the deadline. ACT contends that the cumulative effect of these
flaws meant that it was not reasonably capable of complying with the deadline. The
Commission disputes these complaints and submits that the OCNS did not malfunction,
was continually monitored by its external service provider, and had a 100% uptime
during the relevant period. Its functionality, it contends, is demonstrated by the fact
that multiple other parties were able to upload their information before the deadline.
Consequently, there appears to be a clear dispute of fact as to whether the OCNS worked
properly at the relevant time or not.
[121] The Electoral Court resolved this factual dispute as follows:
“The simple point is that, on the probabilities, the OCNS was not as ineffective and
cumbersome to use as the applicants would make it out to be. It follows that it was, as
alleged by the Commission, the applicants’ unpreparedness and their tard iness which
resulted in their inability to comply with the provisions of section 27. In the context of
this opposed application, which implies that the principle in Plascon-Evans finds
application, it cannot possibly be said that the version of the Commis sion is so
far-fetched and untenable that this Court can reject it out of hand. Put another way, the
Commission’s version on the facts cannot and should not be rejected by this Court out
of hand, as one being patently implausible and far -fetched. Therefo re, factually it
cannot be said that there was anything untoward or unlawful with the Commission’s
insistence on strict compliance with the time limits imposed by the timetable.”92
[122] In this passage, the Electoral Court rather confusingly utilises two approaches to
evaluate the evidence before it. The first is whether, on a balance of probabilities, the
OCNS did not place insurmountable obstacles before the applicants to comply. The
second involves the application of the well -established Plascon-Evans rule as well as
its exceptions to determine the dispute of fact that arose concerning the functionality of
the OCNS. The Commission submits before us that we are bound to apply the
92 Electoral Court Judgment above n 21 at para 14.
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Plascon-Evans rule. The first judgment approves of this approach and itself applies the
Plascon-Evans rule to find that there are no reasonable prospects of success in this
matter.93 Given the fact that the rule’s application is of central importance to the
reasoning and outcome in both the Electoral Court, and this Court, it is nec essary to
consider the application of the rule in circumstances such as the present.94
[123] The Plascon-Evans rule was originally recognised in Stellenbosch Farmers’
Winery,95 a case relating to a trademark infringement. A dispute of fact had arisen on
the papers and the court of first instance decided the matter on the basis of the facts that
were common cause. On appeal, Van Wyk J disagreed with the approach taken by the
court of first instance (to focus on the common cause facts) and stated that the correct
approach is as follows:
“It seems to me that where there is a dispute as to the facts a final interdict should only
be granted in notice of motion proceedings if the facts as stated by the respondents
together with the admitted facts in the applicant’s af fidavits justify such an order. . . .
Where it is clear that facts, though not formally admitted cannot be denied, they must
be regarded as admitted.”96
[124] Given the vast impact of such a rule, it is somewhat surprising that there was not
more discussion in the judgment of the Full Court of the justification as to why its
approach was to be preferred to that of the court of first instance. Nevertheless,
93 The first judgment recognises there is a clear dispute of fact and suggests the need to invoke the Plascon-Evans
rule to decide the dispute at [95] – although, it also suggests, at one point, there is no need to apply Plascon-Evans
at [99].
94 For that very reason, raising this question is not purely of academic interest nor does it impermissibly seek to
go beyond the pleadings as is suggested by the first judgment. Considering whether the application of the rule in
circumstances such as the present is apposite, is both in the interests of justice and necessary for disposing of this
matter: see Booi v Amathole District Municipality [2021] ZACC 36; [2022] 1 BLLR 1 (CC); 2022 (3) BCLR 265
(CC); (2022) 43 ILJ 91 ( CC) at para 35. The parties were additionally provided with an opportunity to address
the issue in oral argument: see Tuta v The State [2022] ZACC 19; 2023 (2) BCLR 179 (CC); 2024 (1) SACR 242
(CC) at paras 52-3.
95 Stellenbosch Farmer’s Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C).
96 Id at 235E-F.
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subsequently, the rule was affirmed in several other cases. 97 In 1984, the
Appellate Division in the now famous case of Plascon-Evans,98 incidentally also about
a trademark infringement, was presented with a dispute of fact in motion proceedings.
It reaffirmed the application of the earlier rule but added some clarifications and
exceptions, also without providing an explicit justification for its approach.99 The first
exception is that the denial by the respondent of a fact alleged by the applicant must be
such as “to raise a real, genuine or bona fide dispute . . . [of] fact”.100 If the respondent
does not raise such a real, genuine or bona fide dispute of fact, and the respondent does
not utilise its right to call for the deponent to the affidavit to be cross-examined, and the
court is satisfied that the applicant’s factual averments have “inherent credibility” , it
may consider the facts as alleged by the applicant in determining its final order.101 The
second exception to the general rule is that the court is justified in rejecting the
allegations or denials made by the respondent where they are “ so far -fetched, so
untenable that a court is justified in rejecting them on the papers”.102
[125] In the more recent case of Wightman,103 the Supreme Court of Appeal elaborated
upon and widened the scope of one of the exceptions. It held that “[a] real, genuine and
bona fide dispute of fact can exist only where the court is satisfied that the party who
purports to raise the dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed”. 104 Thus, where the facts must necessarily be in the
possession of the respondent and they are able to provide evidence if the applicant’s
version is true or not, then a bare or ambiguous denial of those facts will generally not
97 Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Greenpoint) (Pty) Ltd 1976 (2) SA 930 (A) at 938A -B;
Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 430H-431A; Associated South African Bakeries
(Pty) Ltd v Oryx & Vereinigte Báckereien (Pty) Ltd 1982 (3) SA 893 (A) at 923G-924D.
98 Plascon-Evans above n 71.
99 These exceptions are helpfully outlined by Davis J in Ripoll-Dausa v Middleton N.O. 2005 (3) SA 141 (C) at
152-3.
100 Id at 152.
101 Id.
102 Id at paras 151-2.
103 Wightman above n 72.
104 Id at para 13.
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be sufficient for a court to conclude that there is a real, genuine dispute of fact.
Heher JA goes on to find that respondents must take the responsibility seriously to place
their version of the facts before the court in their answering affidavits and, “[i]f that
does not happen it should come as no surprise that the court takes a robust vie w of the
matter.”105
[126] This brief history helps to illustrate two points. The first is that the justification
for the rule being introduced was not properly articulated in the judgments that
introduced it. Secondly, the courts have over time developed exceptions and increased
the scope for those exceptions to apply. The nature of the exceptions suggests they have
been developed to mitigate the potential unfairness the rule can create towards
applicants.106 Nevertheless, it remains the case in motion proceedi ngs that if a
respondent puts up a credible version of facts that contradicts those put forward by the
applicant, matters will be determined on the basis of the version put forward by the
respondent.
[127] The ethos underlying the Constitution has often been quoted in a famous dictum
by Mahomed J in Makwanyane.107 There, he stated the following:
“The South African Constitution is different: it retains from the past only what is
defensible and represents a decisive break from, and a ringing rejection of, that part of
the past which is disgracefully racist, authoritarian, insular, and repressive, and a
vigorous identification of and commitment to a democratic, universalistic, caring and
aspirationally egalitarian ethos expressly articulated in the Constitution.”108
[128] That ethos requires courts over time to consider and re -think all the legal rules
and principles South Africa inherited from the pre -constitutional era. Section 39(2) of
105 Id.
106 There is also very little explicit justification in the case law for why the exceptions were introduced and so it
is necessary to infer that justification from the content of the exceptions.
107 S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
108 Id at para 262.
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the Constitution enshrines that duty: “[w]hen interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bill of Rights.” One of the central features
of the spirit, purport and objects of the Bill of Rights was famously captured by
Professor Etienne Mureinik when he articulated the notion that South Africa has moved
from a culture where authority was to be respected for its own sake to a culture of
justification, where every exercise of power must be capable of justification to the
people of South Africa.109
[129] In giving effect to this culture of justification, the central question, in the current
context, is what is the underlying basis for preferring the version of the respondent when
deciding disputes of fact in motion proceedings? The first judgment suggests a possible
line of reasoning: that “[m]otion proceedings are unsuitable to decide probabilities. In
instances where final relief is sought, motion proceedings are aimed at resolving issues
of law based on common cause facts.” 110 Yet, this does not adequately provide a
justification for the Plascon-Evans rule. If motion proceedings are not suitable for
deciding probabilities, why should the respondent’s version be preferred where there is
a dispute of fact? If they can only be used to resolve issues of law, then one will only
be able to utilise them where the facts are common cause. Yet, the Plascon-Evans rule
precisely regulates circumstances where disputes of fact arise in motion proceedings.
Prima facie, that approach calls for justification given that litigants have a right in
section 34 of the Constitution to have disputes resolved in a “fair” public hearing before
a court.111 Fairness would seem to require, as a starting point, that, when adjudicating
a dispute of fact, neithe r the applicant’s nor respondent’s version is accorded any
109 Mureinik “A Bridge to Where? Introducing the Interim Bill of Rights” (1994) 10 South African Journal on
Human Rights at 31-3.
110 First judgment at [95].
111 Section 34 of the Constitution states:
“Everyone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent and
impartial tribunal or forum.”
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automatic preference. 112 The problem then remains: why prefer the version of the
respondent?
[130] The only justification I have been able to find in our jurisprudence in the limited
time available for p reparing this judgment is that put forward by O’Regan J in Rail
Commuters.113 The main focus of the discussion in the relevant section of that case was
whether the Constitutional Court had jurisdiction to decide factual disputes where they
are connected to constitutional issues. In finding that the Court does have such
jurisdiction, O’Regan J then goes on to consider how disputes of fact are to be dealt
with and affirms the applicability of the Plascon-Evans rule and its exceptions to
constitutional matters . The justification she offers for applying the rule in these
circumstances is the following : “[g]iven that it is the applicant who institutes
proceedings, and who can therefore choose whether to proceed on motion or by way of
summons, this rule restated and refined as it was in [ Plascon-Evans] is a fair and
equitable one”.114
[131] The justification provided can be expanded upon as follows: individuals
approaching a court have a choice between action and motion proceedings. They know
that action proceedings are designed to address disputes of fact and motion proceedings
to address questions of law. If they come to court knowing there is a dispute of fact and
do so on the basis of motion proceedings, then they should bear the burden of their
choice. The Plascon-Evans rule is justifiable as the applicant knows that, if they come
to court on the basis of motion proceedings, then genuine disputes of fact will be
decided in favour of the respondent if they place a version before that court that is not
far-fetched and untenable.
112 The first judgment effectively admits the concern raised by the rule in [97] and suggests, effectively, the answer
lies in procedural mechanisms such as calling for oral evidence or amplifying the papers that judges can utilise to
avoid undue prejudice to applicants. The first judgment also highlights the role of the exceptions in averting
unfairness. However, the very fact that judges have to utilise these devices to ensure fairness to applicants, in
fact, corroborates the concern I have sought to highlight – namely, that preferring the version of respondents is
problematic in the circumstances I identify and can result in unfairness.
113 Rail Commuters above n 71.
114 Id at para 53.
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[132] That justification has serious shortcomings: for instance, it assumes that
applicants know, in advance of bringing motion proceedings, that a dispute of fact will
arise (which may not be true). However, in the current context, what is critic al is that
it presumes that there is a choice to be made by the applicant and an alternative
procedure for determining the dispute of fact is available. If no such alternative
procedure is available, there are no good grounds to apply the Plascon-Evans rule.
[133] There are a range of circumstances that arise where no alternative procedure
exists. The first example of this kind are situations of great urgency which may only
allow for instituting motion proceedings. In 2005, such a case arose in Mahala.115 That
case dealt with a different context to the present, but involved an urgent determination
as to whether a common law wife or mother was entitled to bury the deceased the next
day. A dispute of fact arose as to whether the deceased was indeed married to th e
applicant and whether he was close to his mother. Erasmus J recognised that there was
no time to refer the matter to oral evidence. He held that the matter must be decided on
affidavit and that usually he would have had to apply the Plascon-Evans rule. He stated,
however, that “[t]hat approach is possibly not entirely satisfactory for a matter such as
the present”.116 He held that a more “robust” approach may be required and that the
court should then grant the order if the court is satisfied that there is “sufficient clarity
regarding the issues to be resolved”. 117 The Court proceeded to evaluate the evidence
and decided in favour of the applicant.118
115 Mahala v Nkombombini 2006 (5) SA 524 (SE).
116 Id at para 9.
117 Id.
118 Counsel for the respondent, Mr Bishop, submitted in the hearing that this was not a true departure from the
Plascon-Evans rule as the respondent had put up a bare denial to the allegation that she was aware of the marriage
of the deceased to the applicant. That did not constitute a genuine, bona fide dispute of fact. That may be correct
in the particular circumstances of that case though, in Wightman (above n 72), the Court recognised that a bare
denial could be sufficient depending on the circumstances. Moreover, counsel’s submission does not answer the
question of whether it would have been fair automatically to prefer the respondent’s version had she put up a
version that could have been said to constitute a genuine, bona fide dispute of fact. Erasmus J’s reservations about
the application of the rule in these circumstances, in my view, are well-founded.
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[134] Professor Danie Brand, in an illuminating article, 119 provides another example
of urgent circumstances wher e the application of the Plascon-Evans rule can lead to
injustice and where no alternative procedure is available. He considers a situation that
arose in the case of Schubart Park, where individuals sought to resist an eviction in the
face of state author ities who claimed that the buildings in which they lived were
unsafe.120 In that case, the applicants launched urgent motion proceedings claiming,
based on the mandament van spolie, that their possession of their homes should not be
disturbed. Professor Brand points out that the Plascon-Evans rule requires that the state
authorities’ version be preferred and makes it particularly difficult for poor litigants
without access to resources to prove their case and defend their rights.121
[135] In the High Court in Schubart Park,122 the application of the rule was fatal to the
applicants and resulted in their continuing eviction from their homes. Professor Brand
points out too how this position exacerbates the predicament of applicants on appeal.123
Since appellate courts generally accept the factual findings in the courts below and the
Constitutional Court may refuse to accept jurisdiction over pure disputes of fact, the
application of Plascon-Evans in the lower courts may scupper any effort to appeal. That
too happened in Schubart Park where this Court refused an application to adduce further
evidence and the matter was decided on the version put forward by the City. 124 The
Plascon-Evans rule can thus load the dice against those who are poor, most vulnerable
and wish to give effect to their rights.
[136] A second set of circumstances where the applicant has no choice but to institute
motion proceedings is where the rules of a particular court only make provision for
119 Brand “Law and the City: Keeping the Poor on the Margins” (2014) De Jure 189.
120 Schubart Park Residents’ Association v City of Tshwane Metr opolitan Municipality [2012] ZACC 26; 2013
(1) SA 323 (CC); 2013 (1) BCLR 68 (CC).
121 Brand above n 119 at 197.
122 Schubart Park Residents’ Association v City of Tshwane Metropolitan Municipality 2011 JDR 1288 (GNP).
123 Brand above n 119 at 198.
124 That meant that, although relatively successful in the Constitutional Court in having the appeal upheld, the
Court accepted that the applicants could not return immediately to their homes as the building s were found, on
the basis of the state’s version, to be unsafe.
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instituting motion proceedings. Proceedings before the Elector al Court, such as
occurred in this matter, are only brought on motion proceedings. The Electoral
Commission Act outlines the powers and functions of the Electoral Court.
Section 20(1) reads as follows:
“(a) The Electoral Court may review any decision of the Commission relating to an
electoral matter.
(b) Any such review shall be conducted on an urgent basis and be disposed of as
expeditiously as possible.”
[137] Section 20(2) provides as follows:
“(a) The Electoral Court may hear and determine an appeal against any decision of
the Commission only in so far as such decision relates to the interpretation of
any law or any other matter for which an appeal is provided by law.
(b) No such appeal may be heard save with the prior leave of the chairperson of
the Electoral Court granted on application within the period and in the manner
determined by that Court.
(c) Such an appeal shall be heard, considered and summarily determined upon
written submissions submitted within three days after leave to appeal was
granted in terms of paragraph (b).”
[138] What is clear from these provisions is that, in the case of a review, it will be
conducted on an urgent basis and is brought through lodging written submissions. A
similar point applies to appeals which must be brought on appli cation and involve
speedy decisions on the basis of written submissions. The Rules of the
Electoral Court125 allow for a referral by the Court to oral evidence (rule 11(2)(e)) and
a trial (rule 11(2)(f)). They do not, however, permit an applicant to bring a matter by
way of action proceedings, thus negating the justification put forward by O’Regan J for
applying the Plascon-Evans rule. Conducting a trial will also be difficult given the
urgency attached to electoral reviews and appeals when they relate to an impending
125 Rules regulating the conduct of the proceedings of the Electoral Court, GN R794 GG 18908, 15 May 1998.
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election. That is borne out by the fact that all three present applications before us have
been dealt with purely on the basis of written submissions.126
[139] The question then becomes whether it is fair to apply the Plascon-Evans rule in
these circumstances and, effectively, to load the dice against the applicant. In my view,
it is not. It is clear that applicants in electoral matters have no choice but to proceed by
way of motion proceedings: the rationale for the application of the rule thus do es not
apply in these circumstances. Electoral disputes will often involve individuals or parties
who are subject to the exercise of state power by the Commission. Such individuals or
parties are seeking, in cases such as the present, to give effect to their centrally important
political rights. It is thus hard to see what rationale exists in such cases for preferring
the version of the respondent. Doing so, places a major hurdle in front of individuals
or organisations seeking to vindicate their consti tutional rights.127 Courts, in general,
must be attentive to the way in which procedural rules can effectively hamper the
exercise of substantive constitutional rights. 128 The application of the Plascon-Evans
rule in circumstances such as the present does exactly that.
[140] Indeed, it may well be that, when we are dealing with applications relating to the
enforcement of fundamental rights where action proceedings are otherwise not
available, the application of the Plascon-Evans rule is particularly ill-conceived. If we
accept that fundamental rights are in large measure meant to protect vulnerable
126 The same is true for many other leave to appeal applications this Court received from judgments of the
Electoral Court which were dealt with purely on the basis of written submissions.
127 The examples brought in the first judgment actually bear out this point. In Democratic Alliance (above n 77),
the Plascon-Evans rule was used precisely in favour of upholding the version of the Commission that it had not
acted improperly in extending the cut-off date for the submission of candidates (and against the allegations of the
political parties). In Mtolo (above n 77), the Court claimed to be applying one of the exceptions to the rule – as
mentioned, these can mitigate but not eliminate the potential unfairness I identify. It could also be argued that the
approach of the Court in Mtolo involved circumventing the rule where it did not accord with what justice required,
a clear indication that there is a problem with the general rule.
128 In the context of socio -economic rights, Liebenberg Socio-Economic Rights: Adjudication under a
Transformative Constitution (Juta & Co Ltd, Cape Town 2010) at 203, has drawn attention to the way in which
the placement of a burden to present evidence and arguments “in relation to the reasonableness of its measures on
the State may well be critical in ensuring that socio -economic rights litigation is practically accessible to
disadvantaged groups.” See also Quinot “Substantive Reas oning in Administrative Law Adjudication” (2010) 3
Constitutional Court Review 111 at 116-7.
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individuals against the power of the state and powerful private actors, why
automatically prefer the version of those who are most powerful? This approach
undermines t he enforcement of fundamental rights – the most important normative
commitments underlying South African constitutional democracy – and can undermine
the control of public power and powerful private actors.129
[141] I therefore conclude that there is no good reason to apply the Plascon-Evans rule
where alternative action proceedings cannot be instituted by an applicant – such as in
the circumstances of this case. Dodson SC, in a comment on Mahala,130 raises a wider
question as to whether the rule should be jettisoned altogether given the burden it places
on applicants and whether it is in fact constitutional: 131 it is not necessary, in this case,
to determine those broader questions which can be left for future judicial and academic
discussion.
[142] In the present case, on the approach I adopt, the court will determine the factual
dispute based on the common cause facts and the probabilities. 132 In this case, it was
common cause that there were complaints to the Commission (which it admitted). In
the evidence submitted in Labour Party, the Commission admitted that 18 of the
unrepresented parties, that is 35% of the total that registered on OCNS, will not be able
to compete.
[143] The dispute of fact arose around whether or not the OCNS worked at the relevant
time and whether the problems complained of by ACT were real. The Commission put
up evidence that its service provider demonstrated that there was 100% uptime of the
portal. Yet, we have three parties that complained of similar problems that placed
129 I do not deny that this Court has applied the Plascon-Evans rule in disputes of fact relating to fundamental
rights and constitutional issues – the question I ra ise is whether it should continue to do so, particularly in
circumstances where the justification underlying the rule does not apply.
130 Mahala above n 115.
131 Dodson “Civil and Constitutional Procedure and Jurisdiction” (2006) Annual Survey of South African Law 763.
132 Where possible and the circumstances allow, I agree that, where disputes of fact cannot be readily resolved on
the papers, they should be referred to oral evidence.
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affidavits before this Co urt. If we consider the version of additional parties who filed
affidavits (as I suggest is permissible below), there was corroboration of these claims
by 10 parties that experienced the same difficulties with the system.
[144] In the oral hearing, counsel for the Commission conceded that not all these
parties could be said to be lying and that there could have been some glitches with the
system. It was also consistent with the objective evidence that the website, for instance,
may have slowed down with a larg e number of users uploading information at the last
minute and caused some of the problems – “freezing”, “hanging” – complained of by
the applicant. The fact that some parties succeeded does not indicate that they had no
difficulties nor that their being on the internet itself did not contribute to the
malfunctioning of the system. Problems such as server upload difficulties and database
bottlenecking are well-known and most internet users at some point have experienced
them.133 I find it therefore difficu lt to accept the conclusion of the first judgment that
the OCNS simply functioned perfectly. The sheer volume of complaints points to the
contrary conclusion that many parties faced problems utilising the system on
8 March 2024.134 The question then that a rises is, in the face of all these complaints,
did the Commission behave appropriately in response? It is to that question that I now
turn.
The Commission’s failure to consider amending the Election Timetable
[145] When ACT failed to submit its information relating to candidate lists on time, it
wrote to the Commission indicating that it had experienced “technical glitches with the
online portal, with the system kicking us out every time we tried to transact.” Similar
complaints were sent to the Commission in the other two matters before us. The
Commission also acknowledges it received complaints without specifying the number.
133 There is vast literature on this topic which is mostly technical in nature: s ee, for an example , Schroeder and
Harchol-Balter “Web Servers under Overload: How Scheduling Can Help” (2006) 6 ACM Transactions on
Internet Technology 20.
134 The ACT also states on affidavit that it was using new laptops and a stable and high-speed internet connection.
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What then was the response of the Commission to the complaints it received? The
letters it sent to ACT provide an indication of how it responded.
[146] The Commission correctly indicated that it had no discretion to condone
non-compliance with the Election Timetable. It then stated that it was unaware of any
technical glitches with its systems “which prejudiced any political parties or
independent candidates throughout the process and such allegations are denied
accordingly.” In response to a lawyer’s letter from ACT, it repeated the denial of
knowledge of technical glitches. Yet, that knowledge was being placed before it by not
just one party but multiple parties. It not only denied knowledge but did not indicate
any steps it would take to investigate the matter or to consider its impact on free and
fair elections, and, consequently, whether the Election Timetable should be amended.
[147] The applicant alleges that the Commission effectively “decided” not to exercise
its power to amend the Election Timetable in terms of section 20(2)(a) of the
Electoral Act.135 The Commission states that it never made such a decision. Indeed, its
correspondence suggests that its response s simply required adherence to the Election
Timetable without any mention that it was even considering utilising its powers in terms
of section 20(2)(a). In terms of the definition of administrative action in section 1 of
PAJA, it is not only the taking of a decision that is reviewable but also the failure to
take a decision. It is evident from the Commission’s own submissions that it failed even
to consider amending the Election Timetable, despite having received numerous
complaints about the functioning of the online portal which many parties claimed
prevented them from complying with the deadline. The question is whether such a
failure to take a decision in these circumstances can be reviewed under any of the
grounds listed in section 6(2) of PAJA.
135 Electoral Court Judgment above n 21 at para 14.
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[148] Relevant to this enquiry is the notion of “responsiveness” in our Constitution.136
During the transition to our democratic order, Professor Mureinik claimed that “[t]he
best that democracy can be is a system in which government resp onds to the
governed.”137 Voices such as his led to the value of responsiveness being enshrined in
the foundational values of the Constitution which recognises in section 1(d) the
importance of: “Universal adult suffrage, a national common voters roll, regu lar
elections and a multi-party system of democratic government, to ensure accountability,
responsiveness and openness.” Section 195(1)(e) of the Constitution which is
applicable to all spheres of government and organs of state requires that “[p]eople’s
needs must be responded to”. Responsiveness, arguably, underlies the duty of the
government to provide reasons for its decisions.138
[149] This Court has further recognised the importance of responsiveness in several
rulings. In Doctors for Life,139 Ngcobo J identified responsiveness as part of the notion
of participatory democracy:
“Commitment to principles of accountability, responsiveness and openness shows that
our constitutional democracy is not only representative but also contains participatory
elements. T his is a defining feature of the democracy that is contemplated. It is
apparent from the Preamble to the Constitution that one of the basic objectives of our
constitutional enterprise is the establishment of a democratic and open government in
which the people shall participate to some degree in the law-making process.”140
136 This idea has unfortunately received too little attention. For a welcome exception see Govender “Power and
Constraints in the Constitution of the Republic of South Africa 1996” (2013) 13 African Human Rights Law
Journal 82.
137 Mureinik “Reconsidering Review: Participation and Accountability” (1993) Acta Juridica 35 at 35.
138 Id at 40.
139 Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC);
2006 (12) BCLR 1399 (CC) (Doctors for Life).
140 Id at para 111.
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[150] In elaborating upon this dictum in the context of a dispute concerning a
cross-border municipality where the voices of the people in that municipality had been
ignored, this Court stated the following in Merafong:141
“To say that the views expressed during a process of public participation are not
binding when they conflict with Government’s mandate from the national electorate,
is not the same as cynically stating that the legislature is n ot required to keep an open
mind when engaging in a process of that kind. Public involvement cannot be
meaningful in the absence of a willingness to consider all views expressed by the
public.”142
[151] In Joseph,143 this Court also stated the following: “[t]aken together, the values
and principles described above require government to act in a manner that is responsive,
respectful and fair when fulfilling its constitutional and statutory obligations.”144
[152] The duty to be responsive has also played a role in electoral matters. For
instance, in the case of Johnson,145 the Electoral Court was seized with a matter where
independent candidates requested assistance from a Commission official to indicate
whether they had complied with the requirements to stand for elections. That Court
held that the duties of the Commission included:
“a duty to assist voters and candidates; such assistance should not be limited to ensuring
that participants have sufficient knowledge of the electoral process; it should promote
a culture of he lpfulness to all involved in elections; it should display willingness to
assist those members of the public who wish to participate in elections – such assistance
not being restricted to voters alone but also to candidates.”146
141 Merafong Demarcation Forum v President of the Republic of South Africa [2008] ZACC 10; 2008 (5) SA 171
(CC); 2008 (10) BCLR 968 (CC).
142 Id at para 51.
143 Joseph v City of Johannesburg [2009] ZACC 30; 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC).
144 Id at para 46.
145 Johnson v Electoral Commission [2013] ZAEC 2; 2014 (1) SA 71 (EC).
146 Id at para 31.
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The failure of the Commission to assist the applicants led to the by -election being
postponed.
[153] In Independent Party,147 the applicants lodged an objection with the Commission
regarding irregularities at certain voting stations. They received no response. They
followed up and were informed by an official that their objection had been rejected by
an administrative decision due to its being filed late. The Electoral Court held that there
was a right enshrined in the relevant statute for individuals to submit objections to the
Commission. The Commission had a concomitant obligation to consider, determine
and apply its mind to the objections it received. The Court found in favour of the
applicants and held that the Commission’s conduct was unlawful and unreasonable.
[154] Responsiveness is im portant for, at least, three vital reasons. 148 The first is
instrumental, and relates to enhancing decision -making: taking into account feedback
and input from individuals or organisations in the political community helps
government functionaries to recognise flaws in their decision-making, to correct errors
and to ensure that the purposes of a state institution are attained.149
[155] The second is, what we may term dignitarian: as Ngcobo J recognised,
participation enhances “the civic dignity of those who particip ate by enabling their
voices to be heard and taken account of.” 150 This rationale focuses on the importance
of recognising individuals as having worth, who count in decision -making. The
well-known philosopher Professor Jeremy Waldron puts the point as follows:
147 Independent Party v Electoral Commission [2001] ZAEC 1; [2001] 3 All SA (EC).
148 I am influenced by an impressive article by Meyerson “The Moral Justification for the Right to Make Full
Answer and Defence” (2015) 35 Oxford Journal of Legal Studies 237. Meyerson’s concern is with the underlying
justification for the right of a defendant in criminal law proc eedings to participate in his or her trial and to be
heard. However, the approaches she identifies provide a more general philosophical underpinning for procedural
justice. For an application of this approach in the South African framework, see Cachalia “Exploring the
relationship between violent protest and procedural injustice in South Africa’s democratic transition” in Bilchitz
and Cachalia Transitional Justice, Distributive Justice and Transformative Constitutionalism (Oxford University
Press, 2023) at 363.
149 Mureinik “Beyond a Charter of Luxuries: Economic Rights in the Constitution” (1992) 8 South African Journal
on Human Rights 464 at 471.
150 Doctors for Life above n 139 at para 115.
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“Applying a norm to a human individual is not like deciding what to do about a rabid
animal or a dilapidated house. It involves paying attention to a point of view and
respecting the personality of the entity one is dealing with. As such, it embodi es a
crucial dignitarian idea – respecting the dignity of those to whom the norms are applied
as beings capable of explaining themselves.”151
[156] The final underlying justification is relational152 and links to the African ethos of
ubuntu.153 The focus here is on the quality of the relationships in society and the need
to encourage harmony and respectful engagements between individuals and the state as
well as between individuals themselves. It is with deep sadness that I note the recent
passing of retired Justice Yvonne Mokgoro and it is a tribute to her legacy to refer to
her ground-breaking insistence on the importance of the value of ubuntu in the new
constitutional order. 154 Building warm, connected relationships between individuals
and government institutions requires an effort on the part of the government to
understand the perspectives of individuals and engage with them about problems that
they may face.
[157] I have mentioned that responsiveness plays an important role in the duty to give
reasons. Yet, it is also strongly connected to some of the particular grounds for a PAJA
review. I will now explore three applicable grounds of review relating to ACT.
151 Waldron “The Rule of Law and the Importance of Procedure” (2011) 50 NOMOS: American Society for
Political and Legal Philosophy 3 at 16.
152 Botha develops a relational account of rights in “Metaphoric Reasoning and Transformative Constitutionalism
(Part 2)” (2003) 1 Journal of South African Law 20 at 23.
153 Tutu No Future Without Forgiveness (Ebury Publishing, 1999) at 35, explains “[s]ocial harmony is for us the
summu bonum – the greatest good. Anything that subverts, or undermines this sought-after good, is to be avoided
like the plague.” The connection between ubuntu and the centrality of acting in ways that advance harmonious
relationships is also explored in, amongst other works, Metz “Ubuntu as a Moral Theory and Human Rights in
South Africa” (2011) 11 African Human Rights Law Journal at 537-541; Cornell and Muvangua Ubuntu and the
Law: African Ideals and Postapartheid Jurisprudence (Fordham University Press, 2012) and Tamale
Decolonisation and Afro-Feminism (2020) at 229-30.
154 Makwanyane above n 107 at paras 306 -7. For later uses of ubuntu in our jurisprudence, see, for instance,
Dikoko v Mokhatla [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) at para 68 and Everfresh
Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd [2011] ZACC 38; 2012 (1) SA 256 (CC); 2012 (3) BCLR
219 (CC) at para 71.
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[158] The failure to consider complaints or the experience of the public may well lead
to a failure to make a decision – which is itself a ground of review under section 6(2)(g)
of PAJA.155 Professors Hoexter and Penfold write that:
“[a]t common law, powers conferred upon administrators are inevitably accompanied
by an implied duty to exercise the power . . . The PAJA perpetuates the common law
position . . . by recognising that failure to take a decision is a ground of review.”156
[159] For our purposes, the present alleged failure to take a decision related to
section 20(2)(a) of the Electoral Act which provides: “The Commission may amend the
[E]lection [T]imetable by notice in the Government Gazette – if it considers it necessary
for a free and fair election”. This provision grants the power to the Commission to
amend the election timetable if it considers it necessary to do so for purposes of
conducting a free and fair election.
[160] Multiple complaints about the functioning of the OCNS should have at least
generated a concern on the part of the Commission that their internet system could have
undermined the ability of these parties to participate in the election. That, in turn, could
impact on their section 19 rights and whether the election was free and fair. There is
no indication from the correspondence placed before the Court that the Commission
applied its mind at all to amending the Election Timetable upon receipt of those multiple
complaints. Basic responsive governance would have required an internal discussion
within the Commission about whether an investigation should be conducted and
consideration given to amending the timetable. In the absence of any evidence that such
a process took place, the failure to take these steps in this regard did not conform to the
duties our law places on the Commission and, therefore, the review on this ground must
succeed.
155 See, for instance, Littlewood v Minister of Home Affairs [2005] ZASCA 10; 2006 (3) SA 474 (SCA) at para 17.
156 Hoexter and Penfold Administrative Law in South Africa 3 ed (Juta & Co Ltd, Cape Town 2021) at 433.
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[161] For similar reasons, the decision falls foul of section 6(2)(f)(ii)(aa) of PAJA on
grounds of not being rationally connected to the purpose of the power in
section 20(2)(a) of the Electoral Act. That section deliberately grants flexibility to the
Commission to amend the timetable if necessary for a free and fair election. The right
to free and fair elections is included in section 19(2) of the Constitution. Inextricably
connected to that right is the constitutional right of every adult citizen to vote
(section 19(3)(a)) and to stand for public office (section 19(3)(b)). 157 In New National
Party,158 this Court recognised that free and fair elections of necessity require the
establishment of fair processes to regulate voting. In discussing the duties of Parliament
in this regard, this Court stated the following:
“Parliament must ensure that people who would otherwise be eligible to vote are able
to do so if they want to vote and if they take reasonable steps in pursuit of the right to
vote. More cannot be expected o f Parliament. It follows that an impermissible
consequence will ensue if those who wish to vote and who take reasonable steps in
pursuit of the right, are unable to do so.
. . .
Parliament is obliged to provide for the machinery, mechanism or process that is
reasonably capable of achieving the goal of ensuring that all persons who want to vote,
and who take reasonable steps in pursuit of that right, are able to do so. I conclude,
therefore, that the Act would infringe the right to vote if it is shown that, as at the date
of the adoption of the measure, its probable consequence would be that those who want
to vote would not have been able to do so, even though they acted reasonably in pursuit
of the right.”159
[162] In this Court’s recent One Movement South Africa judgment,160 this standard was
held to apply to the right to stand for public office. The majority judgment held that the
157 New National Party above n 55 at para 12.
158 Id.
159 Id at paras 21 and 23.
160 One Movement South Africa NPC v President of the Republic of South Africa [2023] ZACC 42; 2024 (2) SA
148 (CC); 2024 (3) BCLR 364 (CC).
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standard applied in circumstances where “the government takes positive steps to give
effect to a right and thereby creates reciprocal duties.”161
[163] The establishment of an internet portal was designed to help facilitate the
exercise of the right to stand in an election for public office. The question therefore that
should have been uppermost in the mind of the Commission was whether indivi duals
were able to utilise the site if they acted reasonably. Determining an answer to that
question is not a simple one and requires considering both possible failures on the part
of the Commission as well as the parties themselves. Clearly relevant in this regard
were the multiple complaints received and the number of parties that failed to comply
with the requirements. The minority judgment in the Electoral Court was correct to
draw attention to the fact that the circumstances in which such an enquiry must be
conducted are those of present -day South Africa where there is a digital divide and
many people lack full digital literacy.162
[164] The Commission submits persuasively that the fact that an individual or
organisation complains does not determine whether there is merit to their complaint.
Nevertheless, a responsive state institution does not simply dismiss complaints that
relate to the very exercise of fundamental rights. Indeed, if their complaints were valid,
then the functioning of the OCNS could have led to unfair exclusions from participation
which would have infringed their right to stand for public office. The seriousness of
the impact of the complaints on individual rights, and the concomitant ability to conduct
free and fair elections should ha ve led the Commission to investigate the complaints
and consider amending the timetable. The failure to do so was irrational given its
primary goal of ensuring a free and fair election. If it had responded quickly to the
complaints and decided that it wa s necessary to amend the timetable, that could have
been effected timeously without having to postpone the election.
161 Id at para 259.
162 Electoral Court Judgment above n 21 at paras 52-3.
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[165] A further ground of review is relevant and that is that the responses of the
Commission demonstrate an unacceptable level of rigidity. Pr ofessors Hoexter and
Penfold write that “blind or rigid adherence to policies or guidelines is unacceptable in
law, for it may ‘preclude the person exercising the discretion from bringing his mind to
bear in a real sense on the particular circumstances of each and every individual case
coming up for decision’”.163 This is an example of what they term fettering discretion
by rigidity which is a ground of review that falls under section 6(2)(i) of PAJA.164
[166] Clearly, the Commission should not be expected to amend the
Election Timetable without a strong basis for doing so – the test is whether, doing so,
is truly necessary for a free and fair election. However, it is granted a discretion to
amend the timetable for good reason – there may be circumstances that arise that put a
free and fair election in jeopardy. Where it receives multiple complaints about an
internet system which has an impact on the ability of individuals or political parties to
exercise their political rights, it, at a minimum, has a duty to consider the validity of the
complaints and their impact on a free and fair election. The impression created by the
Commission’s responses is that it was dismissive and simply denied any truth in the
allegations by the applicant. It was determined to push ah ead with the elections no
matter what without considering if its own systems had prevented the applicant from
participating. That is unacceptable – with the clear evidence before it, it had a duty to
exercise its discretion to investigate and consider the complaints and whether they
justified amending the Election Timetable. Absolute rigidity is inconsistent with the
responsiveness required of such an important organ of state.165
[167] I, therefore, conclude that the PAJA review succeeds on all the grounds
discussed above and that the Commission had a duty to investigate and consider
amending the Election Timetable in light of the multiple complaints received. The next
163 Hoexter and Penfold above n 156 at 442, quoting Richardson v Administrator Transvaal 1957 (1) SA 521 (T).
164 Id at 441.
165 That rigidity also impacts on the reasonableness of the failure to investigate and consider amending the
timetable in terms of section 6(2)(h) of PAJA. Given the existence of other grounds, I will not consider this
ground in any further detail.
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question then arises as to what would constitute an order that is just and equitable in
terms of section 8 of PAJA.166
Just and equitable relief
[168] Determining what is just and equitable involves the exercise of a discretion and
we are not bound by what the parties request or had requested in the lower courts. 167
That point is made clearly by the first judgment in relation to issue estoppel where it
states “[t]his Court can grant relief beyond that sought in an applicant’s notice of
motion.”168 What constitutes just and equitable relief involves considering matters from
the perspective of the applicant, the respondent as well as the wider public.
[169] The applicant no doubt would be delighted with an order remitting the matter to
the Commission to consider whether to amend the Election Timetable. Relevant to
whether the applicant should be granted such an ord er, however, is also the
reasonableness of its own conduct and whether it bears part of the blame for not meeting
the deadline. The first judgment has traversed some of the factors which point to the
fact that the malfunctioning of the internet portal was not the sole reason for the failure
of ACT to comply with the relevant requirements. In particular, an important dimension
to consider is the fact that it was open to the applicant to deliver the candidate lists
physically to the Commission’s offices. The evidence demonstrated that the applicant
was based in Johannesburg and only a half -hour drive from the Commission’s head
office. It does not appear far -fetched, in those circumstances, to require a reasonable
political party faced with what it found to be insurmountable problems with the internet
portal, to load its documents into a motor vehicle and submit them at the Commission’s
office.
166 I have found the failure to take a decision was reviewable in terms of various grounds in section 6 of PAJA
including section 6(2)(g) – consequently, both sections 8(1 ) and (2) are applicable. Both sections provide for a
declaration of rights to be made.
167 Mhlope above n 67 at para 83.
168 First judgment at [87].
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[170] The respondent has indicated that an order that required it potentially to amend
the timetable at this point would also have severe consequences. The order would
disrupt its own arrangements for the election and require it to open up a whole range of
processes, which would require additional human resources. The budgetary
implications it suggested were vast with muc h wasted expenditure and requiring an
additional budget of over R500 million. It would also, it submitted, not be fair to the
political parties who had complied. If we were to find in favour of the applicants, it
submitted, we should simply grant a declaration of rights.
[171] Taking all these factors into account, in the circumstances, I would have granted
leave to appeal and issued a declaration of rights. 169 O’Regan J in Rail Commuters,
makes the following pertinent remarks about declaratory relief:
“A decl aratory order is a flexible remedy which can assist in clarifying legal and
constitutional obligations in a manner which promotes the protection and enforcement
of our Constitution and its values. Declaratory orders, of course, may be accompanied
by other forms of relief, such as mandatory or prohibitory orders, but they may also
stand on their own. In considering whether it is desirable to order mandatory or
prohibitory relief in addition to the declarator, a court will consider all the relevant
circumstances.”170
[172] A declaration of rights, in these circumstances, has the benefit of clarifying the
legal position that the Commission has a duty to be responsive to political parties and
that it must investigate and consider complaints that are made to it. In doing so, it must
consider the validity of those complaints, the impact on the political rights of individuals
and whether the elections would be free and fair if the timetable were not to be amended.
That provides a determination of its duties, but does n ot create the deleterious
consequences that would arise from setting aside the failure to make a decision at this
time.
169 See, generally, Hoexter and Penfold above n 156 at 798-800.
170 Rail Commuters above n 71 at para 107. This Court has also, for instance, in Government of the Republic of
South Africa v Grootboom [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) only granted
declaratory relief.
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The admission of additional affidavits
[173] In both Labour Party and ACT, there were a number of unusual requests to admit
additional affida vits. Rule 12 of the Rules of this Court explicitly contemplates a
departure from ordinary procedures in urgent applications such as the present. In terms
of rule 32, there is also a discretion of this Court to condone non-compliance with these
rules. Given the importance of the factual disputes in this case, and the urgency with
which filings had to take place, it seems to me a generous and less rigid approach is
required in these circumstances. Provided no prejudice is caused to an opposing party,
it is also to the benefit of this Court to have a full view of the factual issues that arise.
[174] Indeed, the instructive words of Madlanga J should be borne in mind when he
considered this issue in Eke.171 In that case, he stated the following:
“Without doubt, rules governing the court process cannot be disregarded. They serve
an undeniably important purpose. That, however, does not mean that courts should be
detained by the rules to a point where they are hamstrung in the performance of the
core function of d ispensing justice. Put differently, rules should not be observed for
their own sake. Where the interests of justice so dictate, courts may depart from a strict
observance of the rules. That, even where one of the litigants is insistent that there be
adherence to the rules. Not surprisingly, courts have often said ‘(i)t is trite that the
rules exist for the courts, and not the courts for the rules’”.172
[175] In this light, I would like to consider the various requests. My
Colleague Majiedt J is correct that, in direct access matters, the permissibility of filing
a replying affidavit is contingent upon the directions provided by this Court. Given the
directions issued did not provide for such an affidavit, the applicants should have
launched a substantive application to justify filing such an affidavit. I disagree with my
Colleague Majiedt J, however, that we are obliged to disregard the replying affidavit as
a result. The Labour Party’s request to file a replying affidavit is contained in the
171 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC).
172 Id at para 39.
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affidavit itself and it justifies its failure to launch a substantive application because of
the urgency with which this matter was heard. The enquiry before us is whether, in
terms of rule 32 of this Court’s Rules, we should condone non -compliance with the
rules in this instance. Since the replying affidavit takes the applicant’s case no further,
consists mostly of ad seriatim responses and also concerns matters that could all be
dealt with adequately in written or oral argument, in my view, there is no good reason
to justify its admission.
[176] The second request this Court had to consider is the Commission’s request to
admit a confirmatory affidavit from a company, Lockdown IT, which was contracted
by the Commission to monitor the functioning of OCNS. The information contained in
the affidavit is clearly of much relevance to the matter before us because it corroborates
the information already placed by the Commission on the record before the
Electoral Court regarding the website having 100% uptime. The affidavit explains what
that means and what tests were done to monitor the website. It is hard therefore to see
the prejudice to the applicant from admitting this affidavit: they were already aware of
these claims by the Commission in the Electoral Court, and it was also n ot their case
that the website crashed or was completely dysfunctional. 173 The affidavit is of a
scientific or technical nature and capable of easy verification: in fact, this Court was
provided with the data on the basis of which the claims in the confirma tory affidavit
were made and so it is difficult to see on what basis it could be contested. I would
therefore have admitted this affidavit.
[177] The last request I shall address is the admission of the “supporting” or
“answering affidavits” filed by many of t he other unrepresented political parties in
Labour Party. In addition to the Commission, Labour Party joined roughly
362 additional unrepresented political parties as respondents. Some of those parties
filed answering affidavits which provide evidence supporting the claim of Labour Party
that there had been technical glitches with OCNS. For instance, 10 of these parties said
173 As indicated above, their case is rather that the website malfunctioned on an ad hoc basis, slowing down and
freezing temporarily. The Lockdown IT report does not exclude that possibility.
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that the portal malfunctioned or froze on an ad hoc basis, six alleged the portal payment
function did not work properly and seven alleged the portal malfunctioned when
uploading documents and signatures.
[178] My Colleague Majiedt J has decided not to admit those affidavits on the basis
that it is prejudicial to the Commission to have to respond to multiple affidavits by
co-respondents who “make common cause with the applicants but do not come out and
assert that they too are applicants and seek relief as applicants”. 174 He further cites the
dubious evidential value of the affidavits as reasons why they stand to be disregarded.
[179] The admission of affidavits by co-respondents supporting the case of applicants
is a matter that has attracted several recent judicial decisions. Minerals Council 175
provides a recent illustration of the issues that arise in this regard. That case dealt with
an application to determine the legal status of the 2018 Mining Charter – as either law
or policy – which was important to clarify the framework within which rights -bearers
could exercise their rights as well as the limitations on the regulatory powers of the
Minister of Mineral Resources and Energy (Minister). The application was brought by
the Minerals Council of South Africa against the Minister. A prior hearing ordered the
joinder of three communities affected by the mining operations, three organisations who
advocated for the rights of those communities and two trade unions. It is clear, in this
case, that these additional respondents had a legal interest in the matter but that they did
not have an identity of interests with the Minister. This is not, neces sarily, an unusual
situation. It is often the case, for instance, that it is necessary to join different levels of
government in a matter but the approach of the provincial government may differ from
that of the national government.
[180] In Minerals Council, the respondents from local communities filed answering
affidavits. Those affidavits did not oppose the relief sought by the applicant but sought
174 First judgment at [78].
175 Minerals Council of South Africa v Minister of Mineral Resources and Energy 2022 (1) SA 535 (GP).
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additional relief on other grounds including the review and setting aside of the
Mining Charter completely. T he Full Court found that the respondents had been
correctly joined in the matter given that they stood to lose certain rights if the applicant’s
relief was granted. Once they were joined, the Court states the following about what
they were entitled to do:
“They were each then entitled to file a notice of intention to oppose and thereafter an
answering affidavit. Their joinder did not, however, entitle them to mount a collateral
attack on the Minister on grounds different from those relied upon by the
Minerals Council.”176 (Emphasis added.)
[181] It is no doubt correct that a respondent cannot seek different relief to the applicant
without bringing its own application or counter -application. However, I do not read
Minerals Council to prevent the additional co-respondents in their answering affidavits
from adducing arguments or evidence that support the applicant’s case. If we accept
that the co-respondents had to be joined on the basis that they had an important legal
interest in the matter, it is undesirable t o force them into a choice between supporting
the applicant or abiding by the ruling. A respondent that has an interest in the matter
should be entitled to respond in the way which reflects their interests. Simply
supporting the case of the applicant with confirmatory claims is unobjectionable.
[182] In Kruger177 too, a co -respondent was joined to the matter who supported the
case of the applicant. As is made clear in Waglay JP’s judgment:
“[I]ts involvement was not limited to placing evidence before the court but it became
involved as if it was an applicant in the proceedings, arguing the case of the said
appellants and asking for the relief sought by the said appellants.”178 (Emphasis added.)
176 Id at para 62.
177 Kruger v Aciel Geomatics (Pty) Ltd [2016] ZALAC 92; (2016) 37 ILJ 2567 (LAC).
178 Id at para 6.
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[183] From this sentence, it is clear that Waglay JP did not have an objection to placing
evidence before the Court by the co -respondent. Instead, the problem arose from the
fact that the co -respondent sought the relief claimed by the applicant and argued the
case as a co-applicant. That impression is bolstered by the following claim:
“Once GSA [the co-respondent] sought the relief asked for by the said appellants it was
no longer placing evidence before the court [of first instance], it was making itself an
applicant in the proceedings.”179 (Emphasis added.)
[184] What these cases establish is that it is impermissible for a respondent to try to
become an applicant via the backdoor: simply placing evidence before the Court which
supports the applicant’s case is not. A contrary view on this same point was expressed
in African Transformation Movement.180 The Full Court in that case held the following:
“There is no provision in the rules for a respondent in motion proceedings to deliver
supporting papers thereby making itself in effect a co-applicant. If a respondent wishes
to be a principal party in obtaining the relief sought by the applicant, it should apply to
be joined as a co -applicant so that the other respondents in the matter can answer the
case put up by it and so that the exchange of papers and subsequent hearing can proceed
in the structured manner contemplated by the rules.”181
[185] I recognise that, in some sense, these conflicting decisions arise from a gap in
the Uniform Rules of Court. 182 As Minerals Council indicates, all parties with a legal
interest in the matter should be included as respondents.183 Yet, as they stand at present,
rule 6(5)(c) and (d) of the Uniform Rules of Court appear only to contemplate the filing
179 Id at para 11.
180 African Transformation Movement v Speaker of the National Assembly [2023] ZAWCHC 101 [2023] 3 All SA
58 (WCC).
181 Id at para 77.
182 The gap would be best addressed by an amendment to these Rules to address the situation described in the text
above.
183 Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O) at 168–70. This view of what constitutes a
direct and substantial interest has been referred to and adopted in a number of subsequent decisions.
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of an answering affidavit if one opposes the order sought in the notice of motion. 184 A
similar provision is included in rule 11(3) of the Rules of this Court. The difficulty is
that one may have a legal interest in the matter and support the relief sought by the
applicant without wishing to become an applicant oneself.
[186] Adopting the approach articulated in African Transformation Movement, would
confront a respondent with an interest in the matter with a Hobson’s choice: either they
abide by the decision of the court or they seek to join the matter as an applicant
themselves or issue a counter -application. Howeve r, the co -respondents may have
cogent reasons for supporting the relief sought by the applicant but not wishing
themselves to become co -applicants. A pertinent example would be where an
impecunious individual or community may have a legal interest in the matter but would
not themselves have approached the court. That may be for a range of reasons: it could
be that the relief would be advantageous but it is not a pressing matter on which they
feel compelled to litigate; it could be that they lack the resou rces to become
co-applicants; or, alternatively, that they are deterred from launching litigation as they
do not wish to be mulcted with an adverse costs order if the claim is unsuccessful.185
[187] Moreover, it is also clear that the rules require joining differ ent levels of
government where the validity of a law is challenged which they administer.186 It would
be undesirable to force different branches of government to oppose such an application
where they in fact have clear information as to why that law should be invalid even
though they are not seeking that relief themselves.
[188] It is clearly important for a respondent opposing the order sought by an applicant
to have an opportunity to respond to any arguments or evidence placed before a court
by a co-respondent. At the hearing, counsel for Labour Party made the good point that
184 African Transformation Movement above n 180 at para 76.
185 The example highlights the fact that not every respondent which has a legal interest in a matter may have the
resources to become an applicant. In developing procedural rules, courts should err in favour of enabling access
to justice particularly in a country with such a large inequality of resources as our own.
186 Rule 10A of the Uniform Rules of Court.
BILCHITZ AJ
79
the way to address this problem would be for a court to allow the filing of a
supplementary affidavit by a respondent who wishes to place before the court additional
submissions to respond to adverse answering affidavits filed by a co -respondent. This
Court has the discretion to allow for the filing of such a supplementary affidavit where
required.187
[189] In addressing the circumstances of co-respondents who wish to support the case
of applicants, I wish to refer once more to the words of Madlanga J in Eke:188
“Under our constitutional dispensation, the object of court rules is twofold. The first
is to ensure a fair trial or hearing. The second is to ‘secure the inexpensive and
expeditious completion of litigation and . . . to further the administration of justice’. I
have already touched on the inherent jurisdiction vested in the superior courts in
South Africa. In terms of this power, the High Court has always been able to regulate
its own proceedings for a number of reasons, including catering for circumstances not
adequately covered by the Uniform Rules [of Court], and generally ensuring the
efficient administration of the courts’ judicial functions.”189
[190] It is clear that the Constitution in section 173 confers on superior courts the
“inherent power to protect and regulate their own process”. Moreover, rule 32 of the
Rules of this Court allow the Court to “condone non -compliance with these rules” and
to “give such directions in matters of practice, procedure and the disposal of any appeal,
application or other matter as the Court or Chief Justice may consider just and
expedient.” In my view, the Court should utilise these powers to admit the affidavits of
the additional unrepresented parties in Labour Party for the following reasons.
[191] The unrepresented political parties who were cited as co -respondents in this
matter clearly did not wish to become applicants but had valuable information relating
187 Rule 11(3)(c)(d) permits the lodging of further affidavits upon direction from the Chief Justice. Rule 32, as
mentioned, provides a general discretion to condone non -compliance with the Rules and give directions in a
manner the Court considers “just and expedient”.
188 Eke above n 171.
189 Id at para 40.
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80
to their own experience of the difficulties that they faced with the OCNS.190 Moreover,
in a matter such as this where the facts are centrally connected to the constitutional
issues – whether the Election Timetable should have been amended and the effect on
the applicant’s section 19 rights – it is necessary to ensure that the Court has as full a
picture as possible to make a determination. The evidential value of these claims is
simply to confirm the difficulties faced by the applicant in relation to the OCNS – that,
in itself, is extremely important in determining whether the Commission’s failure to
consider their complaints should be reviewed in terms of PAJA. To the extent that the
co-respondents’ claims simply support the evidence provided by the applicant about
deficiencies in the OCNS, the Commiss ion had a full opportunity to reply to these
claims and in fact provided extensive evidence of its own in that regard (and, as already
mentioned, I would have favoured admitting the additional evidence it provided given
its relevance and importance to the determination of the issues before the Court). It is
hard to conclude therefore that there is any prejudice or unfairness suffered by the
Commission through the admission of these affidavits.
[192] For these reasons, I would therefore have found that the answering affidavits put
forward by other unrepresented parties – to the extent that they provided evidence of
their own experience with the OCNS – ought to have been admitted into evidence.
Conclusion
[193] In conclusion, this judgment, after examining the factual dispute between the
parties, concludes that the review of the failure by the Commission to apply its mind to
amending the Election Timetable must succeed. The ACT is entitled to a declaration
that the Commission had a duty to investigate, upon receipt of the many complaints it
received, whether the OCNS had placed impediments to the participation of those
political parties – that had acted reasonably – in the election. After such an
190 These are affidavits on oath confirming each party’s experience of utilising the OCNS.
BILCHITZ AJ
81
investigation, it then had a duty to consider whether to amend the Election Timetable in
light of its findings.191
191 This duty to consider would not ha ve obliged the Commission to amend the timetable as the complaints may
have lacked merit but it needed to be in a position to demonstrate that it had taken the complaints seriously and
that it could provide reasons for not exercising its discretion to amend the timetable.
For the Applicant:
For the Respondent:
For the Applicant:
For the First Respondent:
For the Applicant:
For the Respondent:
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