THE ELECTORAL COURT OF SOUTH AFRICA
BLOEMFONTEIN
Not Reportable
Case no : 0041/24EC
In the matter between:
UMKHONTO WESIZWE PARTY First Applicant
NKOSIKHONA CYPRIAN MSHENGU Second Applicant
And
ELECTORAL COMMISSION OF SOUTH AFRICA First Respondent
KWAZI MBANJWA Second Respondent
CEBISILE ZUMA Third Respondent
SITHABISO SIBONISO NKABINDE Fourth Respondent
Neutral Citation : Umkhonto Wesizwe Party and Another v Electoral Commission of
South Africa and Other s (0041/2024EC ) [2024] ZAEC 02(6 March
2025)
2
Coram: Zondi DP, Modiba J, Mhlambi AJ, Professor Ntlama -Makhanya, and
Professor Phooko (Additional Member s)
Heard : Decided in chambers on the papers
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 6 March 2025 .
Summary: Application to compel Electoral Commission (EC) to recogni se
nomination of candidate submitted by person other than one who is the registered
contact of the party with E C – EC declines to do so – does not involve itself in internal
party disputes – review of EC’s decision to withdraw nomination of candidate
submitted to it by a non -registered contact person of the party – no case made for
the relief sought – application dismissed.
3
REASONS
Professor Phooko (Zondi DP, Modiba J, Mhlambi AJ, P rofessor Ntlama -
Makhanya, (additional member) concurring) :
Introduction
[1] This matter highlights how important it is for registered political parties to
diligently maintain their registered particulars with the Electoral Commission of South
Africa (the Commission) and for the Commission to not only manage electoral
processes thoroughly but to do so employing fair practices, lest the constitutional
ideal of free and fair elections is imperilled.
[2] A vacancy arose in Ward 2 of Msunduzi Municipality , Pietermaritzburg,
KwaZulu -Natal due to the Inkatha Freedom Party’s termination of one of its
councillor s’ membership. The vacancy had to be filled within 90 days of its occurrence
in terms of s 8 of the Local Government : Municipal Structures Act 117 of 1998 . The
MEC for Local Government proclaimed 18 December 2024 as t he date for the holding
of a by-election to fill the vacancy.
[3] Following the proclamation of the by-election date, the Commission on 22
November 2024 published the Electoral Timetable (Timetable) .1 Item 5 of the
Timetable required political parties to submit the names of a person nominat ed as
their ward candidate to the Commission to contest the by -election by no later than 25
November 2024 , at 17h00.
[4] On 11 November 2024, t he applicant , Umkhonto Wesizwe Political Party ( the
MK Party) through its member, Mr Vusumusi Mvelase (Mr Mvelase) , submitted the
name of one of its nominated candidate s, the second applicant, Mr Nkosinathi
Cyprian Mshengu ( Mr Mshengu ) to the Commission .
[5] On or about 25 November 2024 at 17h00 , the Commission notified Mr Mvelase
through SMS that it had received another submissio n from the third respondent, Ms
1 S 11 of the Local Government : Municipal Structures Act 117 of 1998.
4
Cebisile Zuma ( Ms Zuma ), nominating the fourth respondent, Mr Sithabiso Siboniso
Nkabinde ( Mr Nkabinde ) as the MK Party ’s candidate for the by -election. Ms Zuma
was authorised by the second respondent, Dr Kwazi Mbanjwa ( Dr Mbanjwa) to
submit Mr Nkabinde’s name to the Commission. Consequently, the Commission
withdrew Mr Mshengu’s name as the candidate for the MK Party , replacing it with Mr
Nkabinde’s name . The Commission contends that Dr M banjwa ’s regist ration as
contact person for the MK Party justifies its acceptance of the submission it received
on his behalf, informing it who the MK Party candidate is.
[6] Before the by-election could take place, the MK Party contacted the
Commission and sought it to reverse its decision to replace Mr Nkabinde’s name with
that of Mr Mshengu. On 26 November 2024 , the Commission informed the MK Party
through Dr Mbanjwa that its system was closed and that it was only this Court that
can reverse its decision.
[7] Aggrieved by the decision of the Commission, the MK Party approached this
Court on urgent basis seeking an order as follows:
‘1.1 Applicants' failure to comply with the forms and service provided for in the Rules of
Court be condoned and that the application be dealt with as an urgent application in terms
of Rule 11 of the Rules of the above Honourable Court.
1.2 Applicants' failure to comply with time period provided for in Rule 6(1) of the Rules of
the above Honourable Court be condoned in terms of Rule 10 of the said Rules.
2. The First Respondent's decisions :
2.1 withdraw and/or not to place the Second Applicant's name as the candidate entitled
to contest the election in Ward 52205002, KZN225 Msunduzi By Election to be held
on 18th December 2024, on behalf of the First Applicant (hereinafter referred to as "the
election").
2.2 to place the name of the Fourth Respondent as the candidate entitled to contest the
election in Ward 52205002, KZN225 Msunduzi By-Election to be held on 18th December
2024, on behalf of the First Applicant.
5
be and is hereby reviewed and set aside ;
3. THAT is declared that the Second Respondent ’s representation to the First
Respondent that the Third Respondent is dully authorized to register the Fourth Respondent
as a candidate on behalf of the First Applicant is declared unlawful and set aside.
4. That the nomination of the Fourth Respondent as the candidate entitled to contest
the election in Ward 52205002, KZN225 Msunduzi By-Election to be held on 18th
December 2024, on behalf of the First Applicant, is declared unlawful and set aside.
5. The First Respondent is ordered to forthwith place the Second Applicant's name on
the list of candidates entitled to contest the election in Ward 52205002, KZN225
Msunduzi By-Election to be held on 18th December 2024, on behalf of the First Applicant.
6. The First Respondent is ordered to print forthwith the ballot papers reflecting the
Second Applicant's name as the candidate entitled to contest the election in Ward
52205002, KZN225 Msunduzi By-Election to be held on 18th December 2024, on behalf of
the First Applicant.
7. That if any of the Respondent/s who oppose/s the application pays the cost of the
application jointly and severally, the one paying the other to be absolved. ’
[8] The Commission oppose s the application. After reading and considering the
papers filed, on 17 December 2024 t his Court issued an order dismissing the
application with reasons to follow . These are the reasons for the Court’s order.
Issues
[9] The issue s to be determined by this Court are as follows :
(a) Whether this matter should be heard as one of urgency ;
(b) Whether the MK Party ’s late filing of the application should be condoned ;
(c) Whether the second respondent’s late filing of their answering affidavit should
be condoned ;
6
(d) Whether Dr Mbanjwa is duly authorised to make a submission to the
Commission, that Mr Nkabinde is MK Party’s candidate and if not, whether the
submission should be declared unlawful and set aside ;
(e) Whether Mr Nkabinde’s nomination as the by -election candidate for the MK
Party should be declared unlawful and set aside ; and
(d) Whether the Commission acted unlawfully when it replaced Mr Mshengu with
Mr Nkabinde as the MK Party’s candidate for the by -election and if so, whether
that decision falls to be set aside .
Submission of the parties
[10] The MK Party submitted that the Dr Mbanjwa had no authority whatsoever to
communicate with the Commission on behalf of the MK Party as he was released
from his responsibilities as the party’s provincial co -ordinator on 28 October 2024.
Consequently, the MK Party contends that any decision taken by the Commission in
so far as is relates to him, purport ing to act on behalf of MK Party after the 28 October
2024 was unlawful.
[11] The MK Party further averred that it had demonstrated its democratic process
which resulted in the nomination of Mr Mshengu as its candidate for the by -election.
He received 157 votes during the internal party nomination process. To this end, the
MK Party conten ded, there is no evidence suggesting that Mr Nkabinde was
nominated through a democratic process and had received the highest number of
votes. It is, to the contrary , undisputed that Mr Nkabine obtained 137 votes and was
therefore the second highest candidate.
[12] Additionally , the MK Party ’s argument goes, Mr Nkabinde’s nomination and
registration is contrary to the will and wishes of the members of the MK Party.
[13] The MK Party argued that the Commission was missing the point when it
submitted that no new submissions could be made as the name of the MK Party’s
duly nominated candidate was submitted timeously on 11 November 2024 by Mr
Mvelase in conformity with the law regulating the election of Municipal Councillors.
7
However, the Commission opted to withdraw his name and replace it with Mr
Nkabinde’s.
[14] About the Timetable, t he MK Party further submitted that its case is not
concerned with the amendment of the Timetable, but it was open to the Commission’s
powers as per s 20(2) of the Electoral Act 73 of 1997 (Electoral Act) to amend the
Timetable where it is necessary to ensure that election w ould be free and fair.
Consequently, the MK Party argued that the insistence of the Commission in that the
last day for the submission of candidates was 25 November 2024 when the
Commission itself withdrew Mr Mshengu’s name was untenable.
[15] The MK Party further argued that to remedy Mr Mshengu’s withdrawal , the
Commission will have to print a ballot paper that reflects his name. Adding that, if this
cannot be done before the 18 December 2024, it was open to the Commission to
amend the Timetable ‘to give effect to the court order ’.
[16] The MK Party further argued that the Commission contradicted itself when it
accept ed payment and communication from Mr Mvelase including the registration of
Mr Mshengu as the MK Party candidate on 11 November 2024. In amplification of
this, the MK Party asserted that by accepting communication from Mr Mvelase and
notifying him that it has removed Mr Mshengu as the electoral candidate for MK Party
confirm s its acceptance that Mr Mvelase had locus standi to communicate with the
Commission on behalf of the MK Party. The Commission had never object ed to Mr
Mvelase’s authority to act as aforesaid. Therefore, its conduct is inconsistent and
amount s to procedural unfairness. According to the MK Party , the Commission ought
to have objected to Mr Mvelase’s authority when he made submi ssion.
[17] The MK Party further submitted that s 21 of the Electoral Act allows a person
who has called for the election to postpone same if the postponement is necessary
for free and fair election amongst other factors. Additionally, the MK Party averred
that s 22(1) of the Electoral Act also allows the Commission to postpone election at
a given voting station provided that ‘it is not reasonably possible to conduct a free
and fair election ’ on the date proclaimed. Based on these factors, the MK Party
submitted that it was up to the Commission to ensure free and fair elections and that
8
the Commission’s ‘internal administrative consideration s should not [out]-weigh the
applicant’s right to free and fair election ’.
[18] According to the MK Party, this Court must embark on a balancing exercise
and conclude that its order is capable of practical implementation.
[19] The MK Party emphasi sed that the Commission made a reviewable decision
when it replaced Mr Mshengu’s name with Mr Nkabinde’s. T herefore , it incorrectly
asserts that it did not make an administrative decision but merely disregarded
communication from Mr Mvelase.
[20] The MK Party also contends that the Commission flouted the rules of natural
justice when it unilaterally took a decision to replace Mr Mshengu’s name without
affording Mr Mvelase an opportunity to make representations in order to ‘improve the
quality and rationality of [its] administrative decision -making ’ process.
[21] The Commission arg ues that the MK Party may not rely on the fact that Mr
Mvelase submitted the name of their candidate and paid the required fee. Adding that
the fact that an official of the Commission received a submission from Mr Mvelase
and communicated with him does not render him [Mr Mvelase] the registered and
contact person of the MK Party. The Commission acknowledges that it ought to have
informed Mr Mvelase that he was not the registered contact person. However, even
if this was not done earlier, it does not render him a registered contact person or
confer him with the authority that he does not have.
[22] The Commission also argued that Mr Mvelase may not confer authority upon
himself and further argued that the MK Party’s submission in so far as it relates to Mr
Mvelase should be ‘regarded as pro non scripto from the outset ’.
[23] The Commission adds that it is apparent from the pleadings that the MK Party
has an internal dispute about who should have been the party’s candidate on the
then 8 December 2024 by -election. According to the Commission, it is beyond its
powers to deal with party positions and titles. Consequently, the Commission argued
that the MK Party ’s submission that Dr Mbanjwa was removed as the MK Party’s
9
provincial co -ordinator on the 28 October 2024 was immaterial as he is still the
registered contact person of the MK Party with the Commission.
[24] The Commission submitted that the MK Party ’s prayer that the by-election
should be postponed is misplaced because the Commission may amend the
Timetable where necessary to ensure a free and fair election. That this may only
occur as a matter of last resort and where there is a necessity for an amendment.
Consequently, the Commission submitted that a party’s failure to comply with the
Timetable does not trigger the amendment of the Timetable. The Commission
therefore argued that the MK Party’s internal dispute resulted in the submission of 2
candidates giving rise to a further dispute regarding who was a legitimate person to
contact the Commission. To this, t he Commission submitted that the fact that Mr
Mshengu will not be the MK Party’s representative does not entail that the by -election
will be not free and fair.
[25] Relying on Liberal Party v The Electoral Commission and Others2, the
Commission argued that the MK Party inter alia seeks to put the Commission ‘in a
situation where it has to make ad hoc decisions about political parties and candidates
who have not complied with the Act ’. The Commission reasoned that with special
votes cast, the by-elections had already begun and could no longer be postponed.
[26] The Commission submitted that the MK Party ’s reliance on the SMS that was
sent by the Commission’s official to Mr Mvelase informing him of Mr Mshengu’s
replacement is misplaced because Mr Mvelase is not the registered contact person
for the MK Party.
[27] The Commission further highlighted that the MK Party ’s submission
suggesting that it was denied the right to be heard is misguided as the Commission
does not deal with internal party disputes on who has the authority to submit the
party’s nominated candidate.
Urgency/condonation
[28] The MK Party applied for condonation as it brought the application outside the
three -day period after the impugned decision was made by the Commission.
2 Liberal Party v The Electoral Commission and Others [2004] ZACC 1; 2004 (8) BCLR 810 (CC).
10
[29] Rule 6(1) of this Court’s rules require a party who seeks to take a decision of
the Commission on review to do so within three days after the decision was made.
Furthermore, Rule 10 provides that ‘failure to comply with the prescribed time limits
or directives of the Court will, by this mere fact thereof, result in a party being barred,
unless the Court, on good cause shown, directs otherwise ’.
[30] I am of the view that satisfactory reasons have been provided by the MK Party
about why this application was brought 5 days late . The MK Party extensively
explained that it had inter alia tried to first engage with the Commission to try to find
a solution and was only told on 25 November 2024 by the Commission that only a
court of law can reverse its decision.
[31] The Commission also seeks condonation for filing its answering affidavit late.
Its explanation for the delay is that it had limited time to finali se its answering affidavit
and have it signed and commission ed. The delay by a mere 3 0 minutes was not
inordinate. In the matter of Melane v Santam Insurance Co. Ltd3 it was held that when
granting condonation, the court exercises a discretion having regard to all relevant
factors including the degree of lateness, and the explanation thereof. I am satisfied
that both parties have shown good cause and that they have made up a proper case
to be granted condonation
[32] About the urgency, the MK Party was informed about the withdrawal of the
name of the second applicant on the 25 of November 2024. The elections were to
take place on 18 December 2024. There is no doubt that the MK Pary had limited
time within which to t ry and resolve its dissatisfaction with the decision of
Commission. I say so because the MK Party had first sought to engage with the
Commission to resolve the matter, but the Commission was clear in that it does not
involve itself into party internal d isputes. Consequently, the MK Party had to explore
and eventually take the legal route so that that the issue of their eligible ward
candidate could be determined before the by -election . In African Independent
Congress v Electoral Commission of South Africa and Others4, this Court held that
‘electoral matters are by their nature inherently urgent ’. I therefore see no reason as
3 1962 (4) SA 531 (A) At 532 B-E.
4 (003/2024EC) [2024] ZAEC 19 at para 14. See also African National Congress v Electoral
Commission of South Africa and Others (001/2024EC) [2024] ZAEC 03 at para 29.
11
to why this matter should not be heard as one of urgency given the then fast
approaching date of the by -election.
Merits
[33] Apart from all the other issues that have been raised by the parties in this
matter, i n my view the crux of this case centres around the registered contact person
of the MK Party with the Commission. To this end, it is important that I refer to the
applicable legal framework . On 27th August 2021 Regulation 9 for the Registration
of Political Parties 2004 was amended by Gazette Notice 45060 Proclamation R35
of 27th August 2021 (Regulation 9) . The current Regulation 9 reads as follows:
‘Notification of change in registration particulars –
Any change in the particulars furnished in Annexure 1 must be notified to the Chief
Electoral Officer in writing within 30 days after such change by the registered [contact
person or the] leader of the party. ’
[34] In May 2024 , in his capacity as the Provincial Convener for the MK Party, Mr
Thobane Zuma wrote a letter to the Commission notifying it of a change in its
provincial leadership. The letter read s as follows in relevant parts :
‘Dr Mbanjwa is the principal contact person who would represent our organization [the
MK Party] in all Party matters ’ (Emphasis added) .
[35] It is common cause that the MK Party replaced Dr Mbanjwa with one, Mr
Mchunu as its Commission contact person . Therefore, Mr Mvelase had no authority
to make a submission to the Commission regarding the MK Party’s nominated
candidate for the election. It is unclear why the Commission never informed Mr
Mvelase forthwith that it is not accepting his submission because he is not MK Party’s
registered contact person. Had it done so, this application may not have seen the
light of day because the Commission’s refusal to accept Mr Mvelase’s submission
would have alerted the MK Party to set its Commission records in order.
[36] The Commission tries to extricate itself from th is debacle by arguing that it
does not involve itself in internal party dispute s which is eviden t from the fact that the
MK Party through its two officials , submitted two different names of ward candidates
for the by -election. The Commission misses the point. This matt er does not involve
12
an internal party dispute because none is manifest in these proceedings. Lack of
diligence in the management of their affairs by both MK Party and the Commission
led to this debacle. The former by failing to comply with regulation 9 and the latter by
accepting a submission from a party official who is not its duly registered contact
person.
[37] It can also be deduced from the evidence before this Court that ther e are
apparent weaknesses in both the Commission’s internal system s and the MK Party’s
internal communication channels. If the Commission’s internal system s were
effective, it ought to have immediately identified that Dr Mbanjwa is the registered
contact person for the MK Party and notified Mr Mvelase immediately . It did not have
to wait until it received the second submission from Dr Mbanjwa to reali se that it
should not have accepted Mr Mvelase’s submission. Similarly, MK Party ought to
have notified the Commission of the change in its contact person within thirty days of
the change as required by regulation 9.
[38] In terms of regulation 9, the Commission should accept a nomination of the
MK Party’s by-election candidate from its registered contact person and no other
person. Thus legally, it was correct in rejecting Mr Mvelase’s submission. It is
unfortunate that it communicated its decision so late, thus denying MK Party an
opportunity it would have enjoyed had the Commission responded promptly to Mr
Mvelase’s submission.
[39] Notwithstanding the above finding , it is important for this Court to express its
displeasure about the conduct of the Commission in its hand ling of th e MK Party’s
nomination for the candidate for the by -election. The Commission conduct ed itself
imprudent ly and inefficiently . It has failed to offer an adequate explanation for its
inefficient conduct of which should never be repeated. In Labour Party of South Africa
and Others v Electoral Commission of South Africa and Other s,5 there Professor
Phooko writing for the minority emphasi sed that:
‘Electoral justice is a process and not an event, it starts not only when one casts his or
her vote at the ballot box but from the initial stage that eventually lead to the election
5 Labour Party of South Africa and Others v Electoral Commission of South Africa and Others
(008/2024EC; 012/2024EC; 011/2024EC; 009/2023EC; 010/2024EC) [2024] ZAEC 04 at para 54.
13
day. In other words, both the pre - and post -election processes should be seen as being
free and fair ’ (Emphasis added .)
[40] The Commission has a constitutional obligation to manage elections and to
ensure that the elections are free and fair .6 The Commission is one of the pillars
supporting our hard-earned constitutional democracy. Its ‘processes must create an
environment that do not place a doubt about our democratic processes. ’7 The
Commission’s processes are a means towards the attainment of free and fair
elections which in turn contribute to the overall scheme of electoral justice. The
Commission should ensure that its systems are beyond reproach otherwise it is
failing in fulfilling its constitutional mandate as set out in s 190(1)(a) and (b) of the
Constitution.
[41] Regrettably for the MK Party, this Court is not satisfied that it has made out a
proper case for the relief it seeks. It s failure to comply with regulation 9 and the fact
that when it ultimately instituted this application, the horse had al ready bolted. The
by-election had already commenced . Therefore, ordering that the election be
postponed is not a j ust and equitable remedy under these circumstances. It would
not be fair to registered political parties and the electorate who followed all legal
proce sses to participate in the by -election.
[42] For these reasons , I conclude that the application falls to be dismissed.
Costs
[43] As a general rule , cost s orders are not imposed upon a losing party in electoral
matters unless such party’s conduct has been vexatious, frivolous or abusive of the
court processes.8 In my view, both parties’ internal communication channels
somehow failed or were inadequate. In the circumstances , there is no order as to
costs .
6 S 190 1(a) and (b) of the Constitution, 1996. See also S 5 of the Electoral Commission Act 51 of
1996.
7 Ibid at para 56.
8 Arise Afrika Arise (AAAR) v Electoral Commission of South Africa (008/2023 EC) [2024] ZAEC 1 at
para 31.
14
Order
[44] In the result, the following order granted on 18 December 2024 is confirmed :
1. The applicant’s failure to comply with the forms and service provided for in
the Rules of Court is condoned, and the application is dealt with as one of urgency
in terms of Rule 11 of the Rules of this Court.
2. The applicant’s late filing of the application i s condoned.
3. The Commission’s late filing of the answering affidavit is condoned.
4. The application is dismissed with no order as to costs.
_____________________________
PROF ESSOR MR PHOOKO
Additional Member of the Electoral Court
15
APPEARANCES
For the applicant : SK Xulu
Instructed by: Njabulo Gordon Zungu INC , Durban
For the first respondent: M Tsele
Instructed by : DMO Attorneys , Sandton