THE ELECTORAL COURT OF SOUTH AFRICA ,
BLOEMFONTEIN
Not Reportable
Case No : 0035/2024EC
In the matter between:
AFRICAN TRANSFORMATION MOVEMENT Applicant
and
THE ELECTORAL COMMISSION OF SOUTH AFRICA First R espondent
AFRICAN NATIONAL CONGRESS Second Respondent
DEMOCRATIC ALLIANCE Third Respondent
ECONOMIC FREEDOM FIGHTERS Fourth Respondent
INKATHA FREEDOM PARTY Fifth Respondent
FREEDOM FRONT PLUS Sixth Respondent
UNITED DEMOCRATIC MOVEMENT Seventh Respondent
AFRICAN INDEPENDENT CONGRESS Eighth Respondent
CONGRESS OF THE PEOPLE Ninth Respondent
GOOD PARTY Tenth Respondent
AFRICAN CHRISTIAN DEMOCRATIC PARTY Eleventh Respondent
PAN AFRICANIST CONGRESS OF AZANIA Twelfth Respondent
AL JAMA -AH Thirteenth Respondent
UMKHONTO WESIZWE PARTY Fourteenth Respondent
ACTION SA Fifteenth Respondent
RISE MZANSI Sixteenth Respondent
BUILD ONE SOUTH AFRICA Seventeenth Respondent
NATIONAL COLOURED CONGRESS Eighteenth Respondent
UNITED AFRICANS FOR TRANSFORMATION Nineteenth Respondent
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PATRIOTIC ALLIANCE Twentieth Respondent
Neutral Citation : African Transformation Movement v Electoral Commission of
South Africa and Others (0035/2024EC) [2024] ZAEC 01 (14
January 2025)
Coram: ZONDI DP, ADAMS AJ and PROFESSOR NTLAMA -MAKHANYA
(Additional Member)
Heard : Matter disposed of without oral hearing in terms of s 19(a) of the
Superior Courts Act 10 of 2013.
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email, by publication on the website of the
Supreme Court of Appeal and by release to SAFLII. The date and time
for hand -down is deemed to be 1 1:00 on 14 January 2025.
Summary: The Electoral Act 73 of 199 8 – chapter 4 (ss 55 -56) – regulate any and
all objections to the outcome of an election – objections material to final results of
election – application for declaratory relief in relation to the validity and the lawfulness
of the 2024 National and Provincial Elections (NPE) – application for order declaring
the said elections not to have been ‘free and fair’ – application for order declaring
s 24A of the Electoral Act unconstitutional – s 24A requires a voter to vote only in the
voting district where she/he is registered – applicant alleges irregularities – therefore,
NPE were not ‘free and fair’ – results of the 2024 NPE, as declared by the
Commission on 2 June 2024, should be reviewed and set aside – factuall y found that
applicant did not ma ke out case for the relief sought – application lacks credible
evidence – respondents’ legal points in limine also upheld – application dismissed
with no order as to costs.
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ORDER
The application is dismissed with no order as to costs.
JUDGMENT
Adams AJ (Zondi DP and Professor Ntlama -Makhanya (Additional Member)
concurring) :
[1] The applicant , African Transformation Movement (ATM ), is a political party,
duly registered as such in terms of s 15(1) of the Electoral Commission Act 51 of
1996 (the Commission Act). It participated in the May 2024 National and Provincial
Elections (2024 NPE) and pursuant thereto won two seats in the National Assembly ,
as well one seat in a Provincial Legislature. The first respondent is the Electoral
Commission of South Africa (Commission), established in terms of s 181(1)(f) of the
Constitution of the Republic of South Africa, 1996 (Constitution) and it is the body
constitutionally mandated to manage elections in this country. The second to the
twentieth respondents are also registered political parties, which also participated in
the 2024 NPE and all of them are now represented in the National Assembly and/or
in one or more of the Provincial Legislatures.
[2] In this application ATM applies for wide ranging declaratory relief in relation to
the validity and the lawfulness of the 2024 NPE. Importantly , ATM seeks an order
declaring the said elections not to have been ‘free and fair’. It may be apposite to cite
the relevant portion of the notice of motion, which indicates that an order is applied
for in the following terms : -
‘(1). The 2024 National and Provincial Elections be and are hereby declared not to have
been free and fair insofar as there was no democratic electoral process by the Electoral
Commission of South Africa.
(2) The results of the National and Provincial Elections announced by the Electoral
Commission of South Africa on 02 June 2024 be and are hereby declared as a nullity
and are subsequently set aside.
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(3) The provisions of Section 24A of the Electoral Court Act, 1998, are hereby declared to
be unconstitutional as far as they limit the right to vote entrenched in Section 19(3) of
the Constitution.
(4) The President of the Republic of South Africa is directed to, by Proclamation as directed
by Section 49(3) of the Constitution, call and set a date for election re -run, and /or re -
vote, which must be held within 90 days from the date of grant of this order.
(5) The applicant is directed to serve copy of this Court Order to the President of the
Republic of South Africa and the Speaker of the National Assembly within five days
from the date of grant of this order.
(6) The Respondents opposing this application be directed to pay costs of this application,
such costs to include costs incurred for the employment of two Counsel.
(7) Granting the applicant such further and /or alternative relief. ’
[3] The applicant’s case, in a nutshell, is that, because of alleged inaccuracies
and inconsistencies in the Voters’ Roll, discrepancies in respect of the ballot boxes,
the alleged malfunction of the Voter Management Devices (VMD’s) and misconduct
on the part of certain Commissioners, it cannot be said that the 2024 NPE were ‘free
and fair’. This, in turn, means, according to the applicant's case , that the results of
the 2024 NPE, as declared by the Commission on 2 June 2024 , should be reviewed ,
declared a null ity and falls to be set aside. The applicant also contends that s 24A of
the Electoral Act 73 of 1998 , as inserted by s 7 of Act 34 of 2003 and as amended
by s 9 of Act 4 of 2021 (Electoral Act) , should be declared to be unconstitutional as
far as the provision limits the right to vote entrenched in s 19(3) of the Constitution.
Section 24A requires , as a general rule, a voter to vote only in the voting district where
she/he is registered.
[4] The Commission, as well as the third respondent (Democratic Alliance or DA) ,
oppose the application on the basis that no case is made out by the applicant for the
relief sought. These respondents contend that the applicant has failed to demonstrate
that there were indeed such serious irregularities prior to, during and /or after the
elections as to justify an order declaring the 2024 NPE to have been not ‘free and
fair’. Additionally, the Commission and the DA raise a number of legal points in limine,
which, according to them, are fatal to the applicant’s cause in this application. Those
legal points are non -joinder; lack of proper and effective service; lack of jurisdiction
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and non -compliance with the timeframes for the institution of reviews under the
Electoral Court Rule 6 .
[5] The issue s to be considered in this application are therefore of a factual
nature. The question to be decided by this Court is whether or not factually , there
were these irregularities in the election processes complained of by the applicant ,
and, if so, whether those irregularities were of such a material nature that they
invalidate the 2024 NPE. This Court should also consider whether there is any merit
in the legal points raised by the Commission and the DA.
[6] A convenient starting point for a discussion on the issues concerned is the
applicable legislative framework, notably Chapter 4 (ss 55 -56) of the Electoral Act,
which deals with objections to the outcome of an election . It reads as follows: -
‘Part 4 – Objections material to final results of election (ss 55 -56)
55 Objections material to final results of election
(1) Any interested party may lodge with the Commission an objection that is material to
the determination of the final result of the election , in respect of proceedings provided
for in –
(a) Part 1 of Chapter 4 concerning voting; and
(b) Parts 2 and 3 of Chapter 4 concerning the counting of votes.
(2) The objection must be made to the Commission in the prescribed manner not later than
21:00 on the second day after the voting day.
(3) The Commission, on good cause shown, may condone a late objection.
(4) The Commission, in the prescribed manner, must decide the objection, and must notify
the objector and any other parties involved in the objection, of the decision.
(5) An objector or other party involved in the objection and who feels aggrieved by the
decision of the Commission, may appeal to the Electoral Court in the prescribed
manner.
(6) The Electoral Court, in the prescribed manner, must consider and decide the appeal
and notify the parties to the appeal of its decision.
(7) The result of an election is not suspended pending the decision of the Electoral Court.
56 Powers of Commission and Electoral Court
If the Commission or the Electoral Court decides whether as a result of an objection or appeal
brought under section 55 or otherwise, that a serious irregularity has occurred concerning
any aspect of an election, the Commission or the Electoral Court may order –
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(a) that the votes cast at a particular voting station do not count in whole or in part; or
(b) that the votes cast in favour of a registered party at a particular voting station must
be deducted in whole or in part from the votes cast in favour of that registered party
in that election. ’
(Emphasis added).
[7] By all accounts, ATM has failed miserably to comply with the procedural
requirements prescribed by s 55. I will revert to that aspect of the matter later on in
the judgment. First, I need to deal with the factual issues in the matter.
[8] It is contended by the Commission and the DA that the ATM’s application as
a whole has no merit. I agree. I do so for the reasons set out in the paragraphs which
follow.
[9] The case of ATM is that serious irregularities occurred concerning many
aspects of the 2024 NPE. They complain of ‘voters roll inconsistences, the irregular
vote counting, acts of misconduct by Commission employers’, all of which ATM
alleges ‘point to vote rigging and vote corruption coupled with manipulation of results
to the advantage of one or mor e political parties .’ ATM also submits that the evidence
it has adduced demonstrates that the 2024 NPE were not free and fair and that for
that reason , the Comm ission should not have declared the elections ‘free and fair’ on
2 June 2024. ATM, in particular, avers that it ‘has been a victim of miscalculations,
voter rigging and voter corruption’.
[10] The main difficulty with ATM’s case is that, as contended by the Commission
and by the DA, the application consists almost exclusively of a series of sweeping,
vague and general allegations , none of which are supported by any evidence, let
alone credible evidence. The unsubstantiated averments, which litter the founding
papers of ATM, are nothing more than mere assertions and expressions based on
unfounded suspicions and more often than not based on inadmissible hearsay. This
is in fact admitted by the deponent to the founding affidavit, Vuyolwethu Zungula
(Mr Zungula), who , for example, has this to say at para 73 of the founding affidavit: -
‘There has been speculations and allegations that the current Commission is biased to the
ruling party, is nothing but the vehicle of the ruling party as it mostly favours its intentions.
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This speculation, unproven as it may be , but is sufficient to alarm a threat to the
independence and impartiality of the Commission.’ (Emphasis added).
[11] In its answer to the application, the Commission denies all of these allegations
of irregularities and points out, over and over again , that no evidence is produced by
ATM in support of the allegations advanced by it.
[12] The Commission also contend s that t he application is fatally defective as a
result of ATM’s repeated failure to appreciate and utilise the appropriate mechanisms
under the Electoral Act to raise its complaints at the appropriate time. This pertains
to its complaints of alleged inaccuracies in the certified voters’ roll; refusals to furnish
voters with ballot papers; tampering with ballot boxes; manipulation in the sorting and
counting of votes; and manipulation in the verification of votes. Moreover, so the
Commission contends, ATM does not appreciate the purpose and effect of the
provisions in the Electoral Act on which it rel ies.
[13] I agree with these contentions. The simple point is that ATM disregards the
requirements for a valid s 55 objection, and it fails to recognise that s 55 objection s
concern ‘voting and counting of votes, that is material to the determination of the final
result of the election ’. ATM’s complaints and objections do not move the needle in
respect of the final results of the election (even if they were valid s 55 objections,
which they are not). The point is that the non -compliance with the procedural
requirements of s 55 objections supports a conclusion that, at a factual level, there is
no basis for the complaints. Moreover, nowhere in its papers does ATM make out a
case that the irregularities complained of are of a serious nature such that it is
‘material to the determination of t he final result of the elections’, as envisaged by s
55. In fact, that essential averment is not made anywhere in the founding papers, nor
is any evidence tendered as proof of such materiality. That, in my view, should be the
end of the applicant’s case.
[14] In any event, the Commission, in dealing with ATM’s case in its answering
affidavit, adequately addresses any and all of the complaints and objections raised
by ATM in support of their cause. First, as regards the allegations that ATM voters
were incorrectly registered on the voters roll and refused ballot papers when they
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attended at voting stations on voting day , the Commission alleges that those
allegations are vague and unspecific. They are not supported by evidence, but are
based solely on hearsay and unsubstantiated, general assertions. I can find no fault
with this assertion by the Commission. The evidence thereof lies in a perusal and
consideration of the founding affidavit of ATM.
[15] The reliance in that regard by ATM on a confirmatory affidavit by one Mr
Nyaniso Jeku (Mr Jeku) dated 20 June 2024 is singularly unhelpful. The statement
Mr Jeku makes about the issue of voters being registered in the incorrect voting
district is, as contended by the Commission, a generalised statement about the
objections he allegedly received, without any evidence. Mr Jeku does not purport to
state facts of which he has any personal knowledge; he only describes ‘alleged ’
objections he received , without gi ving any further details in relations to such reports.
His affidavit has no probative value – none whatsoever.
[16] Bizarrely, Mr Zungula attempts to justify the lack of evidence by stating in his
founding affidavit that he ‘need not burden the Court with voluminous papers ’ to
evidence his claims. This is patently wrong. ATM’s claims must be proved with
evidence.
[17] Moreover, ATM’s complaints about the voters’ roll also cannot be sustained
as they did not serve any notice of objection to the provisional voters' roll under s 15 ,
which ought to have been raised with and decided upon by the Commission during
March 2024. ATM also collected the certified voters’ roll on 24 April 2024. No
explanation is given for its delay in raising objections to the certified voters' roll at this
late stage.
[18] Second, as regards the allegations of ‘discrepancies with ballot boxes ’, the
Commission contends, in my view rightly so, that ATM’s allegations are entirely
vague, unspecific and unsubstantiated. The Commission states that there were
complaints about ballot boxes not being sealed properly or being tampered during
the 2024 NPE. However , the Commission investigated and responded to all the
complaints it received. If any of the objecting parties or other parties involved in the
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objection felt aggrieved by the Commission's decision, it was open to them to appeal
in terms of s 55(5) of the Electoral Act.
[19] I agree with the Commission’s contention that t he mere fact that there were
complaints does not prove that they were well -founded and that the elections were
compromised, as ATM appears to believe. What is more is that, as alluded to supra ,
ATM does not allege, let alone prove, that these so -called discrepancies are material
to the final determination of the result of the elections.
[20] Third, as regards issues of vote counting , the Commission’s response is that
ATM’s allegations are premised on supposition and suspicion, not proven facts. As
is the theme throughout ATM’s founding papers, t hese allegations are also made in
the most sweeping and generalised terms, without any factual basis being laid , which
allegations are, in any event, denied by the Commission . There also appears to be
no merit in the conclusion drawn by ATM that faults would have crept into the vote
counting processes be cause of the supposed long hours the vote counters would
spent counting. The Commission described the measures it took to prevent fatigue
compromising the counting process. I have no reason not to accept these
explanations.
[21] The Commission also deals, in my view adequately so, with two s 55
objections raised by ATM. The first one, so the Commission explains, was made after
the extended cut -off time for submission of s 55 objections ( 10:00 on 1 June 2024)
and no condonation was sought . It was submitted at 18:26 on 2 June 2024. The
complaint was not made under oath, as required under regulation 31. The complaint
concerned the vote count in three wards in Mkhondo, Mpumalanga. The Commission
prepared a table , together with the resu lts slips, which details the vote count for each
of the three wards referred to. These records indicate that there is no marked
discrepancy in the number of votes cast across the three ballots in each ward, and
that the number of votes recorded on the resu lts slips and those captured on the
Results System match.
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[22] The second objection was, according to the Commission, not received by it
and i t was not made under oath. The complaint does not disclose a material
‘discrepancy ’ in the votes counted. The complaint contains an allegation that the
number of 44 votes was amended on the results slip to read 78. Even if the alleged
change on the results slip was incorrectly made (which the Commission does not
admit), it would not be material to the outcome of the elections.
[23] As regards the malfunctioning of Voter Management Devices (VMD ’s), the
Commission denies that the devices were not working in most, if not all voting
districts . In its answering affidavit, the Commission explains as follows: -
‘On election day, the VMDs used by voter officials did not work consistently across all voting
stations. In some cases, the devices malfunctioned, and others were impacted by a lack of
or intermittent internet connectivity. The problem did not extend to "most" voting districts. ’
[24] The Commission went on to emphatically state that ‘[t]he malfunctioning VMDs
did not compromise the integrity of the election or the results at all ’. In that regard,
the Commission explain that a ll voting stations were provided with an analogue (hard
copy) voters' roll together with VMDs. That means there were two methods to validate
the eligibility of voters. This was precisely so that if there was any technical problem
with the VMD, it would not affect the validation of eligible voters and the voting
process.
[25] For all of these reasons, I come to the conclusion that factually ATM does not
even begin to make out a case for the relief sought in its application. ATM has failed
to prove any of the irregularities complained of. Moreover, it has not demonstrated –
far from it – that the irregularities are material such that it had an effect on the
determination of the final result of the election.
[26] I come to the same conclusion when applying, in the context of this opposed
application, the principle in Plascon Evans1. The point is that it cannot possibly be
1 Plascon -Evans Paints (TVL) Ltd v Van Riebeeck Paints (Pty) Ltd [1984] 2 All SA 366 (A); 1984 (3)
SA 623; 1984 (3) SA 620 at pp 634 and 635 held as follows: -
‘It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the
affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if
those facts averred in the applicant's affidavits which have been admitted by the respondent,
11
said that the version of the Commission 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. If anything, the version of the Commission should be
accepted as being more probable than that of ATM .
[27] Accordingly, the applicant’s application falls to be dismissed. The application
is doomed because, at a factual and at a basic evidentiary level, there is no merit in
the claim for the relief sought. I repeat that the application consists of a series of
sweeping and vague allegations against the Commission, including of electoral fraud,
vote rigging and political bias. The allegations are unsubstantiated and not supported
by evidence. Instead, the application is based on mere assertion, suspicion and
hearsay. As contended by the Commission, the application is unfounded on the facts
and misguided on the law.
[28] The application should be dismissed also on the basis of all of the legal points
in limine raised on behalf of the Commission and on behalf of the DA. I will deal briefly
with those.
[29] A number of interested parties, notably at least one represented political party,
the Speaker of the National Assembly, the Chairperson of the National Council of
Provinces and the speakers of each of the Provincial Legislatures. All of these entities
and persons have a direct and substantial interest in any order that has the effect of
dissolving the legislatures that they represent. Moreover, the applicant ought to have
also joined the President of the Republic of South Africa, being a party in respect of
which specific relief is sought in prayer 4.
together with the facts alleged by the respondent, justify such an order. The power of the Court to
give such final relief on the papers before it is, however, not confined to such a situation. In certain
instances the denial by respondent of a fact allege d by the applicant may not be such as to raise
a real, genuine or bona fide dispute of fact …
… Moreover, there may be exceptions to this general rule, as, for example, where the allegations
or denials of the respondent are so far -fetched or clearly untenable that the Court is justified in
rejecting them merely on the papers …’
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[30] Further, the relief in prayer 3, declaring s 24A of the Electoral Act
constitutionally invalid, necessitates the joinder of the Minister of Home Affairs as the
Member of the national Executive responsible for the Electoral Act.
[31] Another legal point on which the respondents rely relates to failure to properly
and effectively serve the application on the respondents. Service by email in the
circumstances of this matter is, in my view, wholly inadequate.
[32] The application should also fail on the basis of a procedural defect in the
application, closely related to the issue of lack of jurisdiction of this Court. In that
regard, there has clearly been non -compliance with the applicable s 55 of the
Electoral Act, which prescribes the procedure to be followed when challenging the
results of the 2024 NPE. This too is a fatal defect.
[33] This section provides that where a party wishes to challenge the results, it
must first lodge an objection in terms of s 55(1). The scheme of section requires that
any objection that is material to the determination of the final result of the election
and that concerns voting or the counting of votes must first be lodged with the
Commission (s 55(1)). The objection must be l odged in the prescribed manner and
within the time stipulated in s 55(2) unless the Commission condones the late
objection under s 55(3 ).
[34] Once an objection has been lodged, the Commission must decide the
objection and notify the objector, and any other parties involved in the objection of
the decision (s 55(4)). An objector or other party involved in the objection and who
feels aggrieved by the decision of the Commission, may appeal to the Electoral Court
in the prescribed manner against t he Commission’s decision (s 55(5)). And the
Electoral Court must consider and decide the appeal in the prescribed manner (s
55(6)).
[35] No appeal is competent against a declaration of results unless the procedure
followed in terms of s 55 has been exhausted. The Electoral Court is only empowered
to decide an appeal once the objection procedure has been exhausted, and the
Commission has taken a decision in response. It is the Commission’s decision
13
pursuant to a s 55 objection that may be appealed to this Court, not ‘the declaration
of the election results’.
[36] The applicant failed to follow the foregoing prescribed procedure and it
therefore follows that the relief sought in prayers 1, 2 and the consequential relief in
prayer 4 are incompetent at law.
[37] Furthermore, the relief in prayer 3 of the notice of motion also falls outside this
court ’s jurisdiction as the Electoral Court does not have jurisdiction to declare the
provisions of an Act of Parliament invalid (The Giving Foundation NPC v Electoral
Commission of South Africa and Others2).
[38] For these reasons , the application should fail.
Costs
[39] The award of costs is a matter which is within the discretion of the court
considering the issue of costs. This discretion must be exercised judicially having
regard to all the relevant considerations. One such consideration is the principle that
in general in this Court an unsuccessful party ought not to be ordered to pay costs.
But this is not an inflexible rule, and it can be departed from where there are strong
reasons justifying such departure such as in instances where the litigation is frivolous
or vexatious.
[40] I can think of no reason why the foregoing general rule should be departed
from. Each party should therefore bear its own costs .
Order
[41] In the result and for these reasons , the following order is granted :
The application is dismissed with no order as to costs.
2 The Giving Foundation NPC v Electoral Commission of South Africa and Others [2024] ZAEC 21.
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_________________________________
L R ADAMS
Acting Judge of the Electoral Court
Bloemfontein
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APPEARANCES
For the applicant : M Mhambi
Instructed by: Ashersons Attorneys , Cape Town
For the first respondent: T Ngcukaitobi SC and J Bleazard
Instructed by: Moeti Kanyane Incorpo rated, Pretoria