African National Congress v Chief Electoral Officer of the Independent Electoral Commission (CCT 45/09) [2009] ZACC 13; 2009 (10) BCLR 971 (CC) ; 2010 (5) SA 487 (CC) (3 June 2009)

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[2009] ZACC 13
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African National Congress v Chief Electoral Officer of the Independent Electoral Commission (CCT 45/09) [2009] ZACC 13; 2009 (10) BCLR 971 (CC) ; 2010 (5) SA 487 (CC) (3 June 2009)

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CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 45/09
[2009] ZACC 13
AFRICAN NATIONAL
CONGRESS
Applicant
versus
CHIEF ELECTORAL
OFFICER OF THE INDEPENDENT ELECTORAL COMMISSION
Respondent
Heard on : 5 May 2009
Decided on : 5 May 2009
Reasons furnished on : 3
June 2009
JUDGMENT
THE COURT:
Introduction
On 5 May 2009 this
Court issued the following order in this matter:
“
1. The
applicant’s non-compliance with the form of service of process
as provided for in the Rules of this Court is condoned.
2. The applicant is granted leave to appeal against
the decision of the Electoral Court dated 30 April 2009, under
case
number 04/2009, upholding the respondent’s objection to
the eligibility of Mr Holmes Peter Maluleka as member of
Parliament.
3. The appeal is granted and the decision of the
Electoral Court relating to Mr Holmes Peter Maluleka is set
aside.
4. It is declared that Mr Holmes Peter Maluleka is
eligible to be on the list of candidates for Provincial and
National
Elections of 2009.
5. It is declared that Mr Holmes Peter Maluleka does
qualify for inclusion on the list as a candidate for the
elections
held on 22 April 2009.
6. Reasons for this decision will be furnished
later.”
1
The reasons referred to in
paragraph 6 of the order now follow. The order resulted from an
application brought on the basis
of urgency by the African National
Congress (ANC), a political party registered in terms of the
electoral laws of the Republic
of South Africa.
The facts of the
case are briefly as follows. The ANC included Mr Holmes Peter
Maluleka on its list of candidates for election
to the National
Assembly in the general elections held on 22 April 2009. Section 30
of the Electoral Act 73 of 1998 (the Act)
provides that any person,
including the Chief Electoral Officer (the CEO), may object to the
nomination of a candidate on a
number of grounds.
2
The CEO objected to Mr Maluleka’s candidature (and to the
candidature of several other nominated candidates) on the ground

that his name did not appear on the voters’ roll. As a result,
the CEO reasoned that he was ineligible to be a member of
the
National Assembly.
3
The objection was considered and rejected by the Electoral
Commission on 22 March 2009.
The CEO then
appealed against that decision to the Electoral Court in terms of
section 30(4)
of the
Electoral Act. The
Electoral Court upheld the
objection of the CEO on 4 April 2009 but only furnished its reasons
for this decision on 30 April,
after the general elections were
held on 22 April.
4
The applicant then applied urgently for leave to appeal against the
judgment of the Electoral Court. The papers in this Court
were
lodged on 5 May 2009 and the application was heard on the same day
at 17h00. The swearing in of members of Parliament
was scheduled to
take place – and in fact took place – the next day, 6 May 2009.
The CEO – the
respondent – did not oppose the application. In fact, an
affidavit filed on her behalf stated that she supported
the relief
sought in the application and her counsel furnished an oral
explanation of the events leading up to the application
to this
Court.
Jurisdiction
A preliminary point to be considered is the question
whether this Court has jurisdiction to consider an application for
leave
to appeal against a ruling of the Electoral Court.
Section
96(1)
of the
Electoral Act provides
:
“
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 the Electoral Court is subject to appeal or
review.”
The parties did not address this question in their
submissions and proceeded from the premise that this Court indeed
had jurisdiction.
In
African
Christian Democratic Party
,
5
O’Regan J (for the majority of this Court) refrained from
considering the effect of
section 96(1)
of the
Electoral Act on
the
jurisdiction of this Court in relation to disputes arising from
national or provincial elections. That matter dealt with
local
government elections to which
section 96
is expressly not
applicable. She held that “[l]egislation should not be presumed
to have intended to oust this Court’s
jurisdiction when it does
not expressly state as such”, and concluded that
section 96(1)
does not oust this Court’s jurisdiction in disputes arising from
municipal elections.
6
The question we must
consider now is whether
section 96(1)
ousts the jurisdiction of
this Court in this matter.
Section 96(1)
must be interpreted in a
manner that is consistent with the Constitution.
7
Indeed,
section 2
of the
Electoral Act provides
that any person
interpreting or applying the Act must do so in a manner that “gives
effect to the constitutional . . . guarantees”.
8
It is clear that were section 96(1) to be interpreted to oust this
Court’s jurisdiction to consider constitutional matters,
it would
be inconsistent with section 167(3)(a) of the Constitution which
provides that this Court is the highest court in
all constitutional
matters. Accordingly, section 96(1) should in the light of
section
2
of the
Electoral Act be
read in a manner consistent with
section
167(3)(a).
This can be achieved by reading
section 96(1)
to mean
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.
In this case, the
applicant argued that Mr Maluleka had a constitutional right in
terms of section 19(3)(b) of the Constitution
to stand for election
to the National Assembly and that the effect of the decision of the
Electoral Court constituted an unjustifiable
infringement of that
right. Clearly this case raises a constitutional matter within the
jurisdiction of this Court, a jurisdiction
which
section 96(1)
of
the
Electoral Act does
not oust.
Given that the case
raises a constitutional matter, and given the prospects of success
as shall emerge later in this judgment,
it was clearly in the
interests of justice for this Court to hear the matter and to grant
leave to appeal.
Urgency
Ordinarily, this
Court is not suited to hear urgent matters, because of its
composition and functions. The Court consists of
eleven judges, who
sit together
en banc
. Every matter must be heard by at least
eight judges.
9
From what follows below though, it is clear that this matter was
indeed one of urgency and that it was in the interests of
justice
that it be dealt with expeditiously, as was done in
African
Christian Democratic Party
.
10
Judgment of the
Electoral Court
In its judgment handed down on 30 April 2009, the
Electoral Court held that the CEO’s objection was justified and
“legally
sound”.
11
It held that Mr Maluleka, after correcting his identity
documentation, should also have rectified the situation with regard

to his registration on the voters’ roll; in failing to so he had
only himself to blame for his predicament.
12
We turn now to deal
with the circumstances surrounding the appearance of Mr Maluleka’s
name on the voters’ roll.
Mr Maluleka was
issued two identity documents – one in 2000 and the other in 2006
– bearing different identity numbers.
The second identity
document was issued as a result of corrections made to the spelling
of his name and his date of birth in
the first identity document.
Mr Maluleka used the first identity document to register as a
voter. He however used the second
identity document to accept
nomination as a candidate in the elections. The discrepancy between
the identity number on the
voters’ roll and the identity number
on the nomination form gave rise to the objection of the CEO, who
was of the view that
he was not on the voters’ roll. It was only
subsequent to the Electoral Court’s order that the circumstances
surrounding
Mr Maluleka’s use of two identity numbers was brought
to the attention of the CEO. She submits that, had she known of the

facts relating to Mr Maluleka, she would not have objected to his
candidature in the first place as she was only concerned with
those
candidates who were not on the voters’ roll and thus not eligible
to be candidates. As he in fact appeared on the voters’
roll, she
erroneously believed that the order by the Electoral Court did not
apply to him.
Only after receiving
the full reasons of the Electoral Court on 30 April 2009, did she
realise that she was obliged to comply
with the court order and
thus remove Mr Maluleka from the list of candidates.
13
Were the relief sought in this matter not granted, he would not
have been eligible to be sworn in as a member of the National

Assembly and would have been replaced by another candidate, and the
CEO would have had to issue a correction notice in the
Government
Gazette. Given as appears from the facts set out – that there was
no sound reason to justify prohibiting Mr Maluleka
from standing
for election – the effect of the Electoral Court decision would
have given rise to an unjustifiable infringement
of Mr Maluleka’s
right to stand for public office conferred by section 19(3)(b) of
the Constitution.
It is important to
observe here, however, that were this issue to have been raised
only after members of the National Assembly
had been sworn in, it
may well have been that this Court could not have granted any
effective relief to Mr Maluleka. Given,
however, that this
application was brought before members of the National Assembly had
been sworn in, this is not a question
we have to determine now.
Moreover, given that Mr Maluleka’s name had not been removed from
the list of candidates, despite
the Electoral Court decision on 4
April, we also do not need to consider whether he would at this
stage be entitled to relief
if his name had been removed from the
list on 3 April consistent with the Electoral Court decision, as
the Election Timetable
appears to contemplate. As his name does
appear on the list, granting the relief the applicants seek will
cause no prejudice
to any third party.
Conclusion
It is clear that the objection of the CEO, which was
upheld by the Electoral Court, resulted from a misunderstanding as
far
as Mr Maluleka’s situation is concerned. In spite of the
confusion created by the two identity numbers, he was indeed on the

voters’ roll. There was no uncertainty about his identity. In
fact, he had already served as a member of Parliament from
2004 to
2009. He was therefore entitled at any time to a rectification of
his voters’ roll details, and the fact that he
overlooked doing
so does not detract from the fact that he was on the roll.
The urgency of the
application lies in the fact that the reasons for the Electoral
Court’s decision were issued on Thursday
30 April. Friday 1 May
was a public holiday. On Tuesday 5 May the applicants approached
this Court in order to obtain the necessary
relief before the
swearing-in ceremony scheduled for the next day.
14
As mentioned above it may well be that, if the application had been
considered after the swearing-in ceremony, no effective
relief
could have been afforded to Mr Maluleka.
Leave to appeal was
granted and the appeal was upheld. Costs were neither sought, nor
argued, and no costs order was therefore
made.
Moseneke DCJ, Cameron J,
Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J, Skweyiya J and Van
der Westhuizen J.
For the Applicant:
Advocate K Moroka SC and Advocate K Lengane instructed by Edward
Nathan Sonnenberg Inc.
For the Respondent:
Advocate N Fourie instructed by Bowman Gilfillan Inc.
1
Minor
textual amendments have subsequently been made to the order.
2
Section
30 of the Act provides as follows:
“
(1) Any
person, including the chief electoral officer, may object to the
nomination of a candidate on the following grounds:
(a) The candidate is not qualified to stand in the
election;
(b) there is no prescribed acceptance of nomination
signed by the candidate; or
(c) there is no prescribed undertaking, signed by
the candidate, that the candidate is bound by the Code.
(2) The objection must be made to the Commission in
the prescribed manner by not later than the relevant date stated
in
the election timetable, and must be served on the registered
party that nominated the candidate.
(3) The Commission must decide the objection, and
must notify the objector and the registered party that nominated
the candidate
of the decision in the prescribed manner by not
later than the relevant date stated in the election timetable.
(4) The objector, or the registered party who
nominated the candidate, may appeal against the decision of the
Commission
to the Electoral Court in the prescribed manner and by
not later than the relevant date stated in the election
timetable.
(5) The Electoral Court must consider and decide the
appeal and notify the parties to the appeal and the chief
electoral
officer of the decision in the prescribed manner and by
not later than the relevant date stated in the election
timetable.
(6) If the Commission or the Electoral Court decides
that a candidate's nomination does not comply with section 27,
the
Commission or the Electoral Court may allow the registered
party an opportunity to comply with that section, including an

opportunity to substitute a candidate and to re-order the names
on the list as a result of that substitution.”
3
Section
47(1) of the Constitution provides that “[e]very citizen who is
qualified to vote for the National Assembly is eligible
to be a
member of the Assembly”.
4
The
Chief Electoral Officer v The Electoral Commission and Others
,
Case No 04/2009, Electoral Court, 30 April 2009, unreported.
5
African
Christian Democratic Party v Electoral Commission and Others
[2006] ZACC 1
;
2006 (3) SA 305
(CC);
2006 (5)
BCLR 579
(CC). See also
Liberal Party v
The Electoral Commission and Others
[2004] ZACC 1
;
2004
(8) BCLR 810
(CC) at para 15 in which the effect of section 96 on
this Court’s jurisdiction was also left undetermined.
6
African
Christian Democratic Party
above n 5 at paras 14-6. See also
Liberal Party
above n 5 at paras 11-5.
7
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at para 23.
8
Section
2 of the Act provides:
“
Every
person interpreting or applying this Act must—
(a) do so in a manner that gives effect to the
constitutional declarations, guarantees and responsibilities
contained
in the Constitution; and
(b) take into account any appropriate Code.”
9
See
section
167 of the Constitution. See also
President of the Republic of South
Africa and Others v South
African
Rugby Football Union and Others
[1999]
ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) at para 9.
10
See
above n 5 at
para 1. See also
African
National Congress v United Democratic Movement and Others
(
Krog and Others
Intervening)
[2002] ZACC 24
;
2003 (1)
SA 533
(CC);
2003 (1) BCLR 1
(CC) at para 13.
11
Chief
Electoral Officer
above n 4
at para 12.
12
Id
at paras 10-2.
13
As
it happens, in terms of the Election Timetable published in terms of
section 20
of the
Electoral Act, the
voters’ roll should have been
corrected by 3 April when the final list of candidates was to be
published (see item 12 of the
Election Timetable published under GN
189 GG 31906, 16 February 2009). Compliance with these provisions
was not raised in the
case before us and we need not address it
here.
14
Section
51(1) of the Constitution provides:
“
After an
election, the first sitting of the National Assembly must take
place at a time and on a date determined by the Chief
Justice, but
not more than 14 days after the election result has been declared.
The Assembly may determine the time and duration
of its other
sittings and its recess periods.”