Mketsu and Others v African National Congress and Others (315/2001) [2002] ZASCA 106; [2002] 4 All SA 205 (SCA) (13 September 2002)

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Mketsu and Others v African National Congress and Others (315/2001) [2002] ZASCA 106; [2002] 4 All SA 205 (SCA); 2003 (2) SA 1 (SCA) (13 September 2002)

Case
No 315/2001
Reportable
In
the matter between
ZOLEKA
MKETSU & OTHERS APPELLANTS
and
AFRICAN
NATIONAL CONGRESS
&
OTHERS RESPONDENTS
Coram :
VIVIER ADP, OLIVIER, SCOTT, CAMERON et
BRAND
JJA
Heard : 20
AUGUST 2002
Delivered : 13
SEPTEMBER 2002
Election – jurisdiction of High Court – interpretation of s
65 of Act 27 of 2000
J
U D G M E N T
SCOTT JA
/…
SCOTT JA
:
[1]
The proceedings culminating in this appeal have their
origin in the local government elections held on 5 December 2000 in
the Eastern
Cape. The elections took two forms; the election by
proportional representation of councillors to municipal councils of
different
kinds and the election of individual councillors to
particular wards.
The five applications which are the subject
of the present appeal were launched on 19 December 2000, i e some 14
days after the election.
Three related to the election by
proportional representation of councillors to three different
councils, one being a district council
and the other two being local
councils. (Nothing turns on the distinction.) The remaining two
applications related to the election
of individual councillors to
particular wards.
[2]
The applicants, now the appellants, in all five cases
were members of the African National Congress (‘ANC’), a
registered party
in terms of the Electoral Commission Act 51 of 1996
(‘the Commission Act’). They allege that the selection process
by which
candidates were chosen for inclusion on the party’s list
for election by proportional representation and as candidates for the
ward elections was flawed for want of compliance with the procedures
laid down in a party document entitled ‘ANC Campaign Manual’.

They contend that had the proper procedures been followed they would
have been included in the respective party lists or nominated
for the
wards in question and in due course elected as councillors. The
first respondent in each of the three proportional representational
matters was the ANC. The second respondent was the chairperson of
the Electoral Commission while the remaining respondents were
the
municipal council in question and the successful ANC candidates whose
names had appeared on the party’s list. In each of the
ward
election matters the first respondent was the successful ANC
candidate, the second was the ANC, the third was the chairperson
of
the Electoral Commission and the fourth respondent was the municipal
council concerned.
[3]
As shall become apparent, the relief claimed in the Court
a quo
is significant. In the proportional representation
matters the applicants sought an order (a) declaring that the party
list of
the ANC for the council in question and certified by the
chairperson of the electoral commission ‘is not and never was the
party
list of the [ANC]’ for that council and (b) that the
determination by the chief electoral officer of the successful ANC
candidates
as councillors of the council in question be set aside.
In the ward election matters an order was sought declaring (a) that
the
successful candidate in the election was not properly nominated
by the ANC to contest the ward in question and (b) that his
candidature
and subsequent election was null and void.
[4]
The applications were opposed on various grounds. One of
them was that the appellants had failed to follow the procedure laid
down
in s 65 of the Local Government : Municipal Electoral Act 27 of
2000 (‘The Municipal Electoral Act’) and that the High Court
lacked jurisdiction to entertain any of the matters. As this and
other issues were common to all the matters, they were argued
together. Kroon J in the Eastern Cape High Court upheld the defence
of lack of jurisdiction and found it unnecessary to decide
the
remaining grounds of opposition. The appeal is with the leave of the
Court
a quo
.
[5]
In order to better understand the issues relating to the
question of jurisdiction it is convenient to refer briefly at this
stage
to certain of the more relevant statutory provisions governing
the elections in question and the steps taken in pursuance of those
provisions. In terms of s 11 of the Municipal Electoral Act the
Electoral Commission (‘the Commission’) is obliged when an
election
is called to compile a timetable for that election and
publish it in the Government Gazette. The Commission is a statutory
body
established in terms of s 3 of the Commission Act with wide
powers in relation to elections, including their management. It
consists
of five members, one of whom must be a judge. (Section 6 of
the Commission Act.) Returning to the Municipal Electoral Act, in
terms of sections 13, 14, 16 and 17 a registered party may contest an
election of a municipal council by submitting to the Commission
in
the prescribed manner and by the date set out in the timetable a
notice of intention to contest the election and a party list
of
candidates for election by proportional representation. It may
similarly submit in the prescribed manner and by the date so set
its
nomination of a candidate for election in a ward. In terms of s 15
the Commission is obliged by not later than the date stated
in the
timetable to compile a list of the parties contesting the election
and to certify the party lists which it is to keep available
at the
office of its local representative. Similarly, in terms of s 18, the
Commission is required by a date not later than the
date so set to
compile for each ward a list of candidates contesting that ward and
to certify those lists which are to be kept available
at the office
of the Commission’s local representative.
[6]
In accordance with the timetable compiled by the
Commission, the ANC gave notice of its intention to contest the
election and submitted
its party lists and its nomination of ward
candidates to the Commission by not later than 19 October 2000. The
Commission, in turn,
by 30 October 2000 compiled a list of the
parties contesting the election and of the candidates contesting the
ward elections, certified
the party lists and lists for ward
elections, and had the lists available at its local office. As
previously mentioned the election
was held a little more than a month
later on 5 December 2000. The results were determined by the chief
electoral officer in accordance
with the
formulae
contained in
Schedule 1 (in the case of proportional representation elections for
local councils) and in schedule 2 (in the case of
proportional
representation elections for district councils) of the Local
Government : Municipal Structures Act 117 of 1998 (‘the
Structures
Act’). In the case of the ward elections the candidate who
received the most votes was elected. Once declared elected
the
successful candidates, whether in a ward election or on the basis of
a party list, became councillors. The right of a successful
candidate to become and hold office as a councillor is guaranteed
both by s 21 (1) (b) of the Structures Act and s 19 (3) (b) of
the
Constitution.
[7]
Section 65 of the Municipal Electoral Act, being the
section on which the respondents rely for their contention that the
High Court
had no jurisdiction to entertain the applications, reads
as follows –
‘65(1) An interested party may lodge an objection concerning any
aspect of an election that is material to the declared result
of the
election with the Commission by serving, by not later than 17:00 on
the second day after voting day, at its office in Pretoria
a written
notice containing – [I omit the nine paragraphs setting forth
details of what must be contained in the written notice.]
(2) The Commission, on good cause shown, may condone a late
objection.
In
considering and deciding the objection, the Commission may-
investigate
the factual basis of the objection;
afford
interested parties an opportunity to make written or verbal
submissions;
call
for written or verbal submissions from other persons or parties;
call
upon the objecting party to submit further information or arguments
in writing or verbally; and
conduct
a hearing on the objection.
The
Commission must –
consider
the objection and decide it within three days after it was served
on the Commission, and either –
reject
the objection;
amend
the declared result of the election; or
rescind
the declared result of the election; and
immediately
notify the objector and any other parties involved in the
objection, of the decision.
An
objector or other party involved in the objection who feels
aggrieved by the decision of the Commission may, within three days
of the Commission’s decision, appeal to the Electoral Court in
terms of section 20 of the
Electoral Commission Act and
the Rules of
the Electoral Court.
The
Electoral Court must –
consider
the appeal and either –
reject
the appeal;
amend
the decision of the Commission; or
make
another appropriate order; and
notify
the parties to the appeal of its decision.
The
declared result of an election is not suspended by an appeal to the
Electoral Court.’
[8]
Before considering the arguments advanced in this Court it is
necessary to say something about the Electoral Court to which
reference
is made in the section just quoted. It was established in
terms of s 18 of the Commission Act. It enjoys the status of a High
Court
and comprises a judge of the Supreme Court of Appeal, two High
Court judges, plus two other members appointed by the President.
Its
powers, duties and functions are set out in s 20. They include
the power to hear reviews and appeals and to determine its
own
practice and procedures. I shall revert to this section later in
this judgment.
[9]
In the Court below it was contended on behalf of the appellants that
their objection to the selection process adopted by the ANC
in the
five instances in question was not an objection ‘concerning any
aspect that is material to the declared result’ and therefore
s 65
did not apply. In this Court, however, counsel abandoned the point.
I think he was wise to do so. One merely has to look
at the relief
claimed to see that the objection is material to the declared result.
Indeed, the effect of the relief claimed would
be to unseat the
successful candidates who now hold office as councillors. The
expression ‘any aspect of an election’ is
clearly wide enough to
encompass the objection in question, particularly when considered in
the light of the effect which the objection
would have on the
election result.
[10]
The
principal argument advanced on behalf of the appellants was that the
procedure set forth in s 65 was not mandatory and that
the High Court
retained its ordinary inherent jurisdiction to entertain the
applications. In support of this counsel relied heavily
on the word
‘may’ in ss 1. Quite clearly the legislature could not have
substituted ‘must’ for ‘may’ as the intention
could hardly
have been to compel an interested party to proceed with an objection
against his or her will. Admittedly, as counsel
pointed out, the
subsection could have been worded along the lines of the following
‘an interested party wishing to object shall
lodge etc’, but the
fact that the legislature could have expressed itself with greater
clarity is hardly decisive and the word
‘may’ in the context in
which it is used does little to advance counsel’s argument.
[11]
Section
65 must not, of course, be viewed in isolation but in its context in
the Act. It becomes necessary therefore to refer to
certain other
provisions of the Municipal Electoral Act. Section 78(1) provides:
‘(1) The Electoral Court has jurisdiction in respect of all
electoral disputes and complaints about infringements of the Code,
subject to section 20(4) of the Electoral Commission Act.’
Section 20(4)
of the Commission Act reads:
‘(4) The
Electoral Court shall –
(a) make rules in terms of which electoral disputes and complaints
about infringements of the Electoral Code of Conduct as defined
in
section 1 of the Electoral Act, 1993 (Act No 202 of 1993), and
appeals against decisions thereon may be brought before courts
of
law; and
(b) determine which courts of law shall have jurisdiction to
hear particular disputes and complaints about infringements,
and
appeals against decisions arising from such hearings.’
What is clear
is that the jurisdiction conferred on the Electoral Court in terms of
s 78(1) was intended to be exclusive, subject
to the power of the
Electoral Court to determine which courts of law would exercise
concurrent or exclusive jurisdiction to hear
particular electoral
disputes and complaints about infringements of the Code.
Furthermore, the use of similar language in s 78(1)
of the Municipal
Electoral Act and s 20(4) of the Commission Act,
viz
‘electoral disputes and complaints about infringements of the
Electoral Code’ and the fact that the former section is subject
to
the latter indicates that the power of the Electoral Court to
determine which courts of law have jurisdiction in terms of s 20(4)
of the Commission Act relates to the matters referred to in s 78 and
not s 65. The latter section, it will be recalled, is concerned
with
‘objections concerning any aspect of an election that is material
to the declared result.’ Such objections, therefore,
cannot be the
subject of a determination in terms of s 20(4) of the Commission Act.
[12]
The
expression ‘material to the
declared
result’ makes it
clear that what is contemplated is the adjudication of a dispute
after the election which could have the effect
of upsetting the
declared result. The wide meaning of ‘any aspect of the election’
is further indicative of an intention that
little, if anything, which
is material to the declared result is to be excluded from the ambit
of the section. By contrast, s 78
is concerned with ‘all electoral
disputes’ and ‘infringements of the Code’. What would seem to
be contemplated are disputes
and infringements in the course of what
Kroon J called ‘the run-up to the election’ and which would
ordinarily be determined
prior to the election. As far as the code
is concerned, it is apparent that its provisions relate to the
regulation of the conduct
of parties and candidates in respect of
such matters as their relationship with other candidates and parties,
the press and the electorate.
Any breach would typically be required
to be dealt with as soon as possible in order to put a stop to the
conduct complained of.
(I mention in passing that the Electoral Act
1993 to which reference is made in s 20(4)(a) of the Commission Act
was repealed in
1998 by the
Electoral Act 73 of 1998
. The code of
conduct now applicable is contained in Schedule 2 of the latter Act.
That code is for all intents and purposes identical
to the code
contained in Schedule 1 of the Municipal
Electoral Act. I
shall
revert later to the
Electoral Act 1998
and the circumstances in which
it came to be inapplicable to municipal council elections.)
[13]
Although
not decisive, another indication that
s 78
is concerned with disputes
and infringements which are not material to the declared result is to
be found in subsection 2. It reads:
‘(2) If a court having jurisdiction by virtue of
section 20(4)(b)
of the
Electoral Commission Act finds
that a person or party has
contravened a provision of
Part 1
of this Chapter, it may in the
interest of a free and fair election impose any appropriate penalty
or sanction on that person or
party, including – ’ [What follows
are nine paragraphs in which are listed various penalties and
sanctions ranging from a formal
warning to an order cancelling the
registration of a party.]
Part 1
of the
Chapter referred to contains a number of prohibitions relating to the
conduct of the election, including a prohibition against
failing to
comply with the provisions of the code. What is significant,
however, is that the penalties and sanctions listed are
all
consistent with a result not yet having been declared and, as the
subsection suggests, have as their object ‘a free and fair
election’.
[14]
The
scheme that emerges from these various provisions is that all
electoral disputes, infringements of the code and contraventions
in
relation to municipal elections which are not material to the
declared result are to be dealt with by the Electoral Court or some
other court having jurisdiction in terms of s 78 of the Municipal
Electoral Act. Ordinarily
, but not necessarily, such matters would
be heard and resolved prior to the result of an election being
declared. Where, on the
other hand, an objection is lodged
concerning any aspect of an election that is material to the declared
result, the procedure
prescribed in
s 65
is to be followed.
[15]
It
is necessary at this stage to refer to the determination made by the
Electoral Court on 4 December 1998 in terms of s 20(4)(b)
of the
Commission Act. (See General Notice 2915 of 1998 contained in
Government Gazette No 19572 of 4 December 1998.) This, of
course,
was prior to the enactment of the Municipal
Electoral Act in
2000.
How this came about is as follows. The
Electoral Act 73 of 1998
was
in terms of
s 3(c)
to be applicable (in addition to national and
provincial elections) also to municipal council elections, but from a
date to be proclaimed.
In the event no date was proclaimed and
instead the Municipal
Electoral Act was
enacted in 2000.
Section 78
of the latter Act is virtually identical to
s 96
of the
Electoral Act
1998
. Nonetheless, the point remains that the determination was made
in relation to
s 96
of the latter Act and not s 78 of the former. I
shall assume however, without deciding, that the determination is
applicable to
municipal council elections.
[16]
The
relevant part of the determination reads as follows:
‘(1) The Magistrate’s Court and the High Court in whose area of
jurisdiction –
any
electoral dispute; or
any
complaint about an infringement of the Code,
has arisen, have, subject to subrules (2) and (3), jurisdiction to
hear such dispute or complaint.
(2) The following courts have jurisdiction to impose the following
sanctions referred to in section 96 of the Act:
The
[Electoral] Court, all the sanctions in subsection (2);
The High
Court, all the sanctions in subsection (2) except (2)(h) and (i);
The
Magistrate’s Court, all the sanctions in subsection (2) except
(2)(d)(vii), (h) and (i) and with regard to the sanctions in
subsection (2)(b) and (c), the Magistrate’s Court must have regard
to its civil jurisdiction.’
It appears
from paragraph 2 of the determination that the High Court was not
afforded jurisdiction to impose all the sanctions listed
in s 96 (2)
of the Electoral Act 1993 (the equivalent of s 78(2) of the Municipal
Electoral Act quoted in paragraph 13 above).
The sanctions in
respect of which it was granted jurisdiction were quite clearly
inappropriate in cases where the relief sought was
material to the
declared result of an election. This much was not in dispute. On
behalf of the appellant it was pointed out, however,
that s 78(2),
which lists the sanctions, was concerned only with contraventions of
Part 1 of Chapter 7 of the Act and that those
sanctions did not apply
to ‘any electoral dispute’ referred to in s 78(1) and in respect
of which jurisdiction was conferred
in paragraph 1(a) of the
determination. (Section 78(1) is quoted in para 11 above.)
Accordingly, so it was contended, the jurisdiction
conferred on the
High Court in terms of para 1 of the determination was not limited by
reference to the sanctions it could impose
and that therefore the
High Court had jurisdiction to entertain the applications which were
the subject of the appeal.
[17]
There
are several answers to this argument. For one thing, the wording of
the determination would seem to make it clear that the
limitation on
the sanctions that may be imposed applies to the jurisdiction
referred to in 78(1) of the Municipal Electoral Act
which is the
jurisdiction conferred in terms of para 1 of the determination. But
quite apart from the determination, and for the
reasons already
advanced, I am of the view that on a proper construction of the
Municipal Electoral Act the phrase, ‘any electoral
dispute’ in s
78(1) is to be understood as being limited to disputes which are not
material to the declared result of an election.
[18]
Against
this background I revert to s 65. The time limits imposed on the
lodging of objections in ss (1), the consideration of
such objections
by the Commission in ss (4) and the noting of an appeal to the
Electoral Court in ss (5) make it clear that what
was contemplated by
the legislature was an expeditious procedure to ensure that any
dispute affecting the result of an election was
to be resolved with a
minimum of delay. Subsection 5 provides that the appeal to the
Electoral Court is ‘in terms’ of s 20 of
the Commission Act. The
latter section similarly contains time constraints. If, as was
submitted by counsel, the High Court retained
its inherent
jurisdiction to entertain such an objection the time limits contained
in the section would serve no purpose. An objecting
party would
simply bring his or her case to the High Court.
[19]
It
is true that the ousting of the jurisdiction of the High Court will
not lightly be inferred. But it should not be overlooked
that the
Electoral Court enjoys the status of the High Court and three of its
five members are required to be judges, one a judge
of this Court.
[20]
It
is also significant that the legislature found it necessary to make
express provision for other courts, i e other than the Electoral
Court, to have jurisdiction in specific instances. One such example
is s 78. As previously mentioned, the fact that in terms of
s 78
(read with s 20(4) of the Commission Act) the Electoral Court is
afforded the power to determine which courts of law, other
than
itself, are to exercise the jurisdiction referred to in the section
is the clearest indication that, subject to that power,
the Electoral
Court’s jurisdiction was to be exclusive. Admittedly s 65 is not
subject to the same power. However, the obvious
inference to be
drawn from this is not that the jurisdiction of the Commission and
the Electoral Court under s 65 was intended to
be concurrent with the
High Court’s inherent jurisdiction but that the procedure set out
in s 65 was to be followed in all cases
where the result of the
election was in issue and that in such matters other courts of law
were not to have jurisdiction. Another
example is s 77. In terms of
this section the chief electoral officer is empowered to ‘institute
civil proceedings before a court,
including the Electoral Court, to
enforce a provision of this Act or the Code’. It is also
interesting to note that
s 55
of the
Electoral Act 1998
, which is the
equivalent of s 65 of the Municipal
Electoral Act, provides
for a
similar procedure culminating in an appeal to the Electoral Court.
The wording is however different and permits of no doubt
that the
procedure described therein is mandatory in cases where the objection
concerns ‘any aspect of an election that is material
to the final
result of the election.’
[21]
In
the result I am satisfied that the procedure set out in s 65 of the
Municipal
Electoral Act is
intended to be mandatory and that the High
Court accordingly has no jurisdiction to entertain objections of the
kind referred to
therein.
[22]
The
appeal is dismissed with costs including the costs occasioned by the
employment of two counsel.
D
G SCOTT
JUDGE OF APPEAL
CONCUR:
VIVIER ADP
OLIVIER JA
CAMERON JA
BRAND JA