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[2011] ZACC 16
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Electoral Commission of the Republic of South Africa v Inkatha Freedom Party (CCT 33/11) [2011] ZACC 16; 2011 (9) BCLR 943 (CC) (10 May 2011)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 33/11
[2011] ZACC 16
In
the matter between:
ELECTORAL COMMISSION
…........................................................................
Applicant
and
INKATHA FREEDOM PARTY
…..................................................................
Respondent
Heard
on : 6 May 2011
Decided
on : 10 May 2011
JUDGMENT
NGCOBO CJ:
Introduction
On 18 May
2011, local government elections are to be held in all 278
municipalities in this country. On 11 March 2011, the applicant,

the Electoral Commission (Commission), published the election
timetable for the 2011 local government elections.
1
According to the timetable, relevant
documentation to contest the election had to be submitted by no
later than 17h00 on 25
March 2011.
The respondent, the Inkatha
Freedom Party (IFP), a registered political party with
representatives in all spheres of government,
desires to contest
numerous municipal elections in the upcoming local government
elections. It did not, however, submit its
election documentation
relating to the Umzumbe local government elections at the local
offices of the Commission in Umzumbe
by the time and date
stipulated in the timetable. Its request to submit the relevant
documentation at the Durban offices of
the Commission on 25 March
was rejected by the Commission, as was a subsequent request in
writing to file the documentation
after the deadline.
The IFP subsequently
approached the Electoral Court seeking leave to appeal against the
decision of the Commission. In the alternative,
and should leave to
appeal be refused by the Chairperson of the Electoral Court, it
sought an order reviewing and setting aside
the decision of the
Commission. Without notifying and hearing the Commission, the Court
decided to consider the alternative
relief sought by the IFP. It
reviewed and set aside the decision of the Commission and made the
following order on 7 April
2011:
“
1.
The decision of the Respondent, the Electoral Commission, on 25
March 2011, refusing to allow the Applicant, Inkatha Freedom
Party,
to submit its necessary documentation in terms of Sections 14(1) and
17(1) and (2) of the Local Government:
Municipal Electoral Act 2000
,
at the Respondent’s Durban offices, is reviewed and set aside.
2. The respondent is ordered
to:
(a) allow the Applicant to
forthwith file all its relevant documentation as set out in prayer
1(a) with the Respondent;
(b) forthwith place Applicant’s
name on the list of registered parties entitled to contest the
Umzumbe local government
election;
(c) forthwith place the names
of Applicant’s candidates for the various wards, as per the
ward nomination forms attached
as Annexures “NS3(a)” to
“NS3(s)” to the founding affidavit, on the final list of
candidates of the Umzumbe
local government election;
(d) ensure that all ballot
papers [are] printed reflecting the result of the orders set out
above, alternatively to [the] extent
that ballot papers have already
been printed, to print forthwith ballot papers reflecting the result
of the orders set out above.
3. There will be no order as to
costs.
4. The reasons for this order
will be filed with the Registrar of this court in due course.”
The Court
indicated that the reasons for its order would be filed later.
Those reasons were given on 20 April 2011.
2
On 19 April, and during our
administrative recess, the Commission lodged the present urgent
application for leave to appeal
directly to this Court against the
judgment and order of the Electoral Court. Two days later, this
Court issued directions
setting the application down for hearing on
Friday, 6 May 2011, and setting the timetable for the lodging of
the record and
written submissions. The IFP opposed the
application.
The matter is one of great
urgency, as the elections are due to take place in less than two
weeks. While we would ordinarily
have preferred to have had more
time to formulate our reasons for our conclusions, the urgency of
the matter does not permit
that. It is necessary that we announce
our conclusions and reasons at once.
The issue
for determination on appeal is whether the Electoral Court erred in
reversing the decision of the Commission to refuse
to allow the IFP
to submit its election documentation relating to the Umzumbe local
government elections in Durban. The decision
of the Commission was
based on the ground that the provisions of sections 14 and 17 of
the Local Government:
Municipal Electoral Act
3
(Act), read with the election timetable,
required the IFP to submit election documentation by no later than
17h00 on 25 March
2011 at the Commission’s local
representative in Umzumbe.
The relevant statutory
provisions
The relevant provisions of the
Act are
sections 14
and
17
, in particular those portions which
require documents to be submitted “to the office of the
Commission’s local
representative”. The provisions of
these sections, with our emphasis added, are set out below.
Section 14
provides:
“
(1) A
party may contest an election in terms of
section 13
(1) (a) or (c)
only
if the party by not later than a date stated in the timetable for
the election has submitted to the office of the Commission’s

local representative
—
(a) in the prescribed format
and signed by the party’s duly authorised
representative—
(i) a notice of its intention
to contest the election;
(ii) a party list;
(iii) an undertaking binding
the party, its candidates, persons
holding political or executive
office in the party, its representatives, members and supporters, to
the Code; and
(iv) a declaration that none of
the candidates on the party list is disqualified from standing for
election in terms of the Constitution
or any applicable legislation;
and
(b) a deposit equal to a
prescribed amount, if any, payable by means of a bank guaranteed
cheque in favour of the Commission.
(2) If it is an election in a
district municipality which has one or more district management
areas, a party intending to contest
the election in such an area
must submit a separate party list for the election in that area.
(3) The following documents
must be attached to a party list when the list is submitted to the
Commission:
(a) A prescribed acceptance of
nomination signed by each party candidate; and
(b) a copy of that page of the
candidate’s identity document on which the candidate’s
photo, name and identity number
appear.
(4) If a party omits to attach
to its party list any of the documents mentioned in subsection (3),
the Commission must—
(a) notify the party in writing
by no later than the relevant date and time stated in the election
timetable; and
(b) allow the party to submit
the outstanding documents to the office of the Commission’s
local representative by no later
than the date and time stated in
the election timetable.
(5) The Commission must remove
from a party list the name of a candidate—
(a) in respect of whom any
outstanding document has not been submitted by the date and time
referred to in subsection (4); and
(b) who is not registered as a
voter on that municipality’s segment of the voters’
roll.
(6) The Commission must notify
the party of the removal of the name of the candidate contemplated
in subsection (5).”
Section 17 provides:
“
(1) A
person may contest an election as a ward candidate
only
if that person is nominated on a prescribed form and that form is
submitted to the office of the Commission’s local

representative
by not later than a date stated in the timetable for the election.
(2) The following must be
attached to a nomination when it is submitted:
(a) In the case of an
independent ward candidate, a prescribed form with the signatures of
at least 50 voters whose names appear
on the municipality’s
segment of the voters’ roll for any voting district in the
contested ward;
(b) a prescribed acceptance of
nomination signed by the candidate;
(c) a copy of the page of the
candidate’s identity document on which the candidate’s
photo, name and identity number
appear;
(d) a deposit equal to a
prescribed amount, if any, payable by means of a bank guaranteed
cheque in favour of the Commission;
(e) a prescribed undertaking,
signed by the candidate, to be bound by the Code; and
(f) a prescribed declaration,
signed by the candidate, that he or she is not disqualified from
standing for election in terms
of the Constitution or any applicable
legislation.
(2A) If any document mentioned
in paragraphs (b) and (c) of subsection (2) were not attached to the
nomination, the Commission
must—
(a) notify the nominating party
or person in writing by no later than the date stated in the
election timetable; and
(b) allow the nominating party
or person to submit the outstanding
document by no later than a
date stated in the election timetable.
(3) The Commission must accept
a nomination submitted to it and allow the nominated person to stand
as a candidate in the ward
if—
(a) the provisions of section
16 and this section have been complied
with; and
(b) the candidate is registered
as a voter on that municipality’s segment of the voters’
roll.”
The factual background
The background facts are
common cause.
As stated above, on 18 May
2011 separate elections for 278 municipal councils will be held,
each in its own municipality. This
case concerns only the election
for Umzumbe Municipality. In terms of sections 14 and 17, the
documentation necessary to contest
the elections must be submitted
at the local offices of the Commission. Local offices of the
Commission are located in each
of the 278 municipalities. As the
IFP intends to contest municipal elections for Umzumbe
Municipality, the Act required it
to submit its election
documentation to the Umzumbe office of the Commission by 17h00 on
25 March 2011. It did not do so.
The IFP alleges that all the
relevant documentation that was to be submitted in each
municipality “was timeously collated
and placed into separate
marked envelopes for delivery” to the relevant offices of the
Commission. This was done “before
the stipulated deadline”,
it maintains. The IFP is silent on when this took place. What is
clear, however, is that collating
the documents destined for
Gauteng “continued through the evening of 24 March 2011 and
into the early hours of 25 March
2011.” Despite having
“double checked” the documents destined for Gauteng,
once in Gauteng, it was discovered
that documentation that was
destined for Cape Town and Umzumbe had been erroneously included in
the Gauteng bundles. This was
discovered at “around 10am”
on 25 March 2011.
Arrangements were made to send
the stray documents to their respective destinations by courier.
Those destined for Umzumbe could
be sent to Durban only on a 14h00
flight that would arrive at King Shaka International Airport in
Durban at approximately 15h00.
A helicopter was chartered to fly
the documents to Umzumbe from Virginia Airport. This would have
taken approximately 20 minutes.
But a storm in the mid to late
afternoon in Durban grounded the helicopter. At approximately
16h25, the IFP was advised that
the helicopter had been grounded by
the weather and that it would not be able to take off.
As the deadline was fast
approaching, the IFP telephoned the Commission’s provincial
electoral officer for KwaZulu-Natal
and asked if the Commission
might accept the documents in Durban instead of Umzumbe. The
Commission advised that it would not.
On the advice of the
KwaZulu-Natal provincial electoral officer, the IFP instructed its
local representative in Umzumbe to
fill out the relevant party list
and to submit it. This was done and the Commission’s local
representatives in Umzumbe
accepted the emergency documentation
which related to only three candidates, and which was “filed
just before the 5pm
deadline.” At the hearing, the IFP
explicitly disavowed any reliance on the submission of these
documents.
On the
afternoon of Sunday, 27 March 2011, the IFP’s legal
representatives addressed a letter to the Commission’s
head
office. The letter explained the circumstances that led to the
failure of the IFP to submit its election documentation
in Umzumbe
timeously. It also set out the steps taken by the IFP to deliver
the documents in Durban and in Umzumbe. It urged
the Commission to
accept delivery of the documentation and allow the IFP to contest
the elections in Umzumbe. As pointed out
above, the Commission
declined. In a letter dated 28 March 2011, it stated that the
statutory provisions were peremptory, and
that
its processes
were configured to capture the election data at the local
level.
This prompted the IFP to approach the Electoral Court on 30 March
2011 for the relief referred to above.
The issues for determination
must be understood in the light of the core reasoning of the
Electoral Court, as well as the contentions
of the parties.
The reasoning of the
Electoral Court
The
Electoral Court placed much reliance on the decision of this Court
in
African Christian Democratic Party
(
ACDP
).
4
In that case, this Court considered whether the
establishment of a bulk payment facility by the Commission, after
consulting
the Party Liaison Committees, complied with the
provisions of the Act. The facility contemplated that payment of
the deposit
required under sections 14 and 17 of the Act can be
made elsewhere – at the national office of the Commission –

than at the local office of the Commission.
The
question for decision was whether the provisions of sections 14 and
17 relating to the payment of deposits are peremptory
so as to
prevent the Commission from providing an alternative location for
payment.
5
We held that “there is no central
legislative purpose attached to the precise place
where
the deposit is to be paid
.”
6
We accordingly concluded that, properly
construed, the provisions of sections 14 and 17, which require
payment to be made at
the local office of the Commission, do not
prevent the Commission from establishing the central payment
facility in question.
7
We also held that the ACDP’s failure to
notify the Commission that the surplus funds held to its credit at
the central
payment facility should be used to meet the deposit due
in Cape Town did not constitute non-compliance with sections 14 and

17 of the Act.
8
The
reasoning of the Electoral Court was that “there is no
difference in principle between [this case and
ACDP
]”
9
and that “the principle laid down [in
ACDP
] in
respect of the payment of the deposit by parity of reasoning
applies with equal force to the submission of documents.”
10
Borrowing from the language used in
ACDP
,
it held that “there seems to be no central legislative
purpose attached to the precise place where in a province the

relevant documentation is submitted to the Commission.”
11
The Court took the view that the Commission’s
“refusal to accept the documentation was not only obstructive
. .
. but involved an unduly narrow reading of the provisions of
sections 14 and 17, and a misunderstanding of the central purpose

of the provisions.”
12
The
Electoral Court accordingly upheld the challenge to the decision of
the Commission and made the order set out above.
13
The contentions of the
parties in this Court
The
Commission contends that the Electoral Court erred in four material
respects. First, the Commission was not afforded the
right to be
heard. Second, it departed from the decision of this Court in
Liberal Party v The Electoral
Commission and Others
, in which this
Court answered the question whether the Commission “had any
discretion to condone the late submission
of a candidates’
list”
14
in the negative. Third, its finding that the
Commission can and should, under the circumstances, grant
condonation for non-compliance
with the Act is inimical to free and
fair elections. Fourth, it made a material misdirection of fact in
finding that there
was no central legislative purpose to the local
filing provisions in question, which are designed to prevent
administrative
dislocation where parties, at the eleventh hour,
file in the wrong depot.
For its
part, the IFP supports the decision of the Electoral Court. And
like that Court, the IFP places much store by our decision
in
ACDP
.
It contended that
ACDP
laid
to rest the question whether the provisions of sections 14 and 17
are peremptory by holding that they are not. The IFP
submits that
the Electoral Court had proper regard to the interpretive
injunction articulated by this Court in
ACDP
,
namely, that courts should favour an interpretation of the Act that
promotes enfranchisement and participation over
disenfranchisement.
15
The IFP stresses the importance of the right to
vote, universal franchise, and multi-party democracy as
foundational values
of the Republic, and argues that the Commission
has a positive obligation to promote enfranchisement.
16
In oral argument, the IFP contended that, in the
light of these values, when the Durban officials applied the
statute, they
should have interpreted the provisions to allow
acceptance of the documentation at Durban.
Issues for determination
This
case is not about whether the Commission has the power to grant
condonation for non-compliance with the Act. Nor is it about
the
discretion to condone the late submission of the election
documentation, as contended by the Commission. Accordingly, we
are
not considering whether the Commission has the power to condone
non-compliance with the Act or whether it has the discretion
to
relax the requirements of the Act.
Reduced to its essence, the
debate between the parties turns upon two interrelated questions.
The first is whether the present
case is distinguishable from
ACDP
.
The Electoral Court held, and the IFP maintains, that it is not.
However, the Commission asserts that it is. The second question,

the answer to which depends upon the answer to the first, is
whether submitting documents at the Durban office of the Commission

instead of at its Umzumbe office constitutes compliance with the
local filing requirements of sections 14 and 17 of the Act
read in
the light of their legislative purpose. The IFP maintains that it
does and the Commission maintains that it does not.
Before considering the central
issues presented in this case, it is necessary to dispose of
certain preliminary matters. These
are: the issue raised by the
Commission relating to the procedure adopted by the Electoral
Court; condonation for the late
filing of the record; and whether
leave to appeal should be granted.
Preliminary issues
The procedure adopted by the
Electoral Court
The main
relief sought by the IFP in the Electoral Court was leave to
appeal. Leave to appeal to that Court is governed by rule
5 of the
Rules Regulating the Conduct of the Proceedings of the Electoral
Court.
17
Rule 5(3) requires the Secretary of the
Electoral Court to “inform the party who made the application
and the Commission
of
the decision of the Chairperson regarding the application without
delay.”
18
The rest of rule 5 deals with the procedure to
be followed if leave to appeal is granted, including the lodging of
written submissions.
When the Commission did not
hear from the Secretary on the application for leave to appeal, it
made enquiries on 7 April 2011
in writing to the Secretary as to
whether the IFP was persisting in its application. More
importantly, it drew attention to
the provisions of rule 5(3) and
(4) and specifically enquired whether it “must wait to be
informed about the result of
the application for leave to appeal
(as it is doing now) or whether any other action is required from
its side.” It did
not receive any response from the
Secretary. The order of the Electoral Court was made on the very
same day as the written
enquiry by the Commission.
In its
judgment, the Electoral Court explained that it had decided to
treat the matter as one for review, rather than for appeal,
as this
“allowed for more ‘expeditious disposal’”.
Under rule 6, the Commission was obliged to respond
within three
days of the review application.
19
This it did not do.
The Commission was fully
justified under the rules of the Electoral Court to make the
enquiry that it made. And it should have
been notified of the
decision of the Court not to deal with the application for leave to
appeal. In addition, the Commission
was justified in expecting that
the Court would first consider the main relief sought, the
application for leave to appeal,
and that, if the Court considered
it “expeditious” to deal with the alternative relief,
the Secretary would notify
it. On the facts and circumstances of
this case, the refusal of leave to appeal would have meant
inevitably that the review
would also fail.
The
Commission is the constitutionally designated authority to manage
elections in the Republic and ensure that elections are
free and
fair.
20
In all matters involving a decision of the
Commission, it must be given the opportunity to make submissions.
Failure to notify
the Commission of the Electoral Court’s
decision on the application for leave to appeal led regrettably to
the exclusion
of the Commission from participating in the
proceedings in the Court. The IFP did not contend otherwise.
Non-compliance with
rule 5(3) constituted an irregularity which
vitiated the proceedings in the Electoral Court. On this basis,
alone, the order
of the Electoral Court must be set aside. This,
however, does not finally dispose of the issues in this case.
Condonation
Our
directions of 21 April 2011 required the record to be filed on 26
April. The
Commission filed a ring-bound version of the
record on that day, and despite this Court’s indication that,
given the
urgency of the matter, a record in that form might
suffice, a properly bound and paginated version of the record was
nevertheless
filed on 29 April. Given the attenuated timetable
within which the record had to be filed and the intervening public
holidays,
the explanation for the delay in preparing and filing a
record that complies with the rules of this Court is satisfactory.

Having regard to the importance of the issues raised in this case
and the fact that the Commission did not have the opportunity
to
present its case in the Electoral Court, it is in the interests of
justice that the late filing of the record be condoned.
Leave to appeal
There can
be no doubt that this case concerns constitutional issues of
importance which go to the right to vote
21
and the right to stand for public office.
22
The central question presented in this case
concerns the nature and degree of compliance required by sections
14 and 17 when
submitting documents to contest local government
elections; in particular, whether they require, as the Commission
puts it,
anything other than “scrupulous compliance”
with the requirements of these provisions. This is an important
issue
that will affect the way the Commission performs its
constitutional duty to ensure free and fair local government
elections
both this month and in all local government elections in
the future. Having regard to the imminence of the elections, this

question must be adjudicated without delay.
23
In the Electoral Court, the
case was adjudicated without the participation of the Commission,
despite the Commission’s
importance as the body
constitutionally mandated to manage elections and ensure that they
are free and fair. It is undesirable
that matters involving the
conduct of elections should be decided without the benefit of the
views of the Commission. Having
regard to the importance of the
question raised in these proceedings in the conduct of elections, I
am satisfied that it is
in the interests of justice to grant leave
to appeal. An order to that effect will therefore be made at the
end of this judgment.
With those preliminary issues
out of the way, I turn to consider the central question presented,
namely, whether the provisions
of sections 14 and 17 require that
election documentation be submitted to the local offices of the
Commission.
Does the Act require local
submission of election documents?
The Commission contended that,
properly construed, in the light of their purpose, sections 14 and
17(1) and (2) of the Act require
electoral documentation always to
be submitted at the local offices of the Commission. The question
as I see it is whether
there is a discernible legislative purpose
in requiring that election documentation be submitted at the local
offices of the
Commission. The issue is one of statutory
construction.
As we have
held previously,
24
and as section 2 of the Act requires,
25
the provisions of the Act must be construed in a
manner that gives effect to the right “to vote in elections”
26
and the right “to stand for public
office”.
27
In addition, the Act must be construed in the
light of the foundational values of our constitutional democracy,
which include
“a national common voters roll, regular
elections and a multi-party system of democratic government, to
ensure accountability,
responsiveness and openness.”
28
These foundational values require courts and the
Commission to construe the electoral statutes in a manner that
promotes enfranchisement
rather than disenfranchisement and
participation rather than exclusion.
29
But as we pointed out in
ACDP
,
the exercise “remains one of interpretation.”
30
It is within this context that
the provisions of sections 14(1) and 17(1) and (2) must be
understood and construed. The essential
question is whether there
is any discernible legislative purpose in requiring the election
documentation to be submitted at
“the office of the
Commission’s local representative”.
The two fundamental premises
of the IFP’s argument are that: (a) there is no discernible
central legislative purpose attached
to the precise place in a
province where the necessary documentation required to contest an
election should be submitted; and
(b) this Court in
ACDP
authoritatively determined that the central purpose served by
sections 14 and 17 was to ensure that election candidates declare

their intentions and provide the Commission with the necessary
information to organise the election by the deadline. This purpose,

the IFP contends, applies to sections 14 and 17, generally, and not
just to the payment of election deposits at issue in
ACDP
.
In support of these propositions, the IFP drew our attention to the
following statement in
ACDP
:
“
Of
crucial relevance also is the underlying statutory purpose of
sections 14 and 17 which appears to be to ensure that candidates
and
political parties contesting elections declare their intentions to
do so by a certain date and provide the Electoral Commission
with
the necessary information to enable them to organise the
elections.”
31
Both these
premises are incorrect. The statement in
ACDP
relied upon was made on the
acceptance that the election documentation necessary to contest an
election had to be submitted
at the local offices of the
Commission. That is what the wording of the sections required and
that was the factual situation
in
ACDP
.
As we pointed out in
ACDP
,
it was “common cause in [that] case that the applicant had
lodged the notice of intention to contest the election and
the
party list
with the local office of
the Commission
.”
32
We also emphasised that the “dispute turns
on whether [the applicant] had lodged an adequate deposit as
required by the
section.”
33
Against this background, we considered the
question whether the central payment facility instituted by the
Commission was in
conflict with the provisions of sections 14 and
17. And it was in this context that we concluded that “[t]here
is no
central legislative purpose attached to the precise place
where the deposit is to be paid.”
34
The conclusion we reached in
ACDP
related specifically to the payment of electoral
deposits, as this Court went on to make clear in the passage cited
by the IFP.
The local filing requirements of sections 14 and 17,
more generally, were not at issue in
ACDP
. In this regard,
we pointed out that:
“
The
payment of the deposit is complementary to the key notification
required for organising the elections, namely, the notification
of
the intention to participate and the furnishing of details of
candidates.”
35
What was significant in
ACDP
is that money is a fungible. The Commission’s arrangement for
central payment therefore had no impact on the character
of local
elections, nor on the requirements set out in the statute. By
contrast, what is in issue, here, is the requirement
that a party
give local notice of its intention to contest a municipality and
furnish its candidate lists and other election
documents locally.
We must immediately stress,
however, that in describing the payment of the deposit as
“complementary” we were not
suggesting that the
provisions dealing with the payment of the deposit are less
important than those dealing with the submission
of election
documents.
For these reasons,
ACDP
is distinguishable from this case.
There is a manifest
legislative purpose for the requirement that documents be submitted
at the local offices of the Commission.
That purpose is to promote
the efficient processing and verification of election documents in
order to ensure the fairness
of an election. This purpose is
evidenced by: first, the nature of the documents to be submitted
pursuant to sections 14 and
17 for processing and verification;
second, the requirement that the Commission ensure that it has the
capacity to receive
and process election documents locally; third,
the administrative needs of the Commission in managing elections;
and fourth,
the necessarily local nature of the democratic process
in the context of municipal elections.
The documentation required to
be submitted under sections 14 and 17 would, by its nature, be more
efficiently processed at the
local level. Section 14(1)(a), for
example, requires a party contesting an election to submit its
notice of intention to contest
the election and a party list at the
local office of the Commission. Section 14(2) then provides that
parties intending to
contest elections in municipalities with
multiple district management areas must submit separate lists for
each area they wish
to contest.
It makes administrative sense
that the processing of documents and checking whether all the
required documentation has been
properly filed would be done more
efficiently in a decentralised manner. This is where, with regard
to the provisions of section
14(1)(a) and (2), the local office of
the Commission would immediately know whether the municipality in
which it functions
requires, as a result of its division into
different management areas, a party to submit multiple lists in
order to comply
with the Act.
Similarly, section 17(2)(a)
requires a person who wishes to contest an election as a ward
candidate to accompany the submission
of his or her nomination with
“the signatures of at least 50 voters whose names appear on
the municipality’s segment
of the voters’ roll for any
voting district in the contested ward”. The verification of
the documentation submitted
against that part of the voters’
roll in a particular municipality evidently involves the local
office of the Commission.
That part of the voters’ roll for
each municipality is recorded and monitored by the individual
municipalities themselves.
One of the
benefits of a decentralised system of local document processing and
verification is therefore that local offices
can expeditiously
process documents submitted in relation to the elections they are
required to manage, and can coordinate,
as necessary, with local
parties and candidates to ensure that documents submitted comply
with the provisions of the Act. It
is telling that the Act
specifically contemplates that the Commission will establish local
facilities to manage municipal elections.
Section 12 requires the
Commission, once an election has been called, to “appoint,
for the area of the municipality in
which the election will be
held, an employee or other person as its representative for the
purpose of the election.”
36
Sections 14(1) and 17(1) then contemplate that
the Commission has established local offices where election
documents can be
submitted and processed.
Not only
does a decentralised system facilitate the expeditious processing
and verification of documents, but it also facilitates
the
Commission’s work in efficiently distributing its own
resources in administering municipal elections nationwide.
Having
parties submit documents in those local offices where they intend
to contest elections prevents uneven and unpredictable
application
flows and resultant pressure in local offices. This helps to avoid
uncertainty on the part of the Commission as
to how it can best
allocate its financial and human resources between its various
offices. It therefore prevents the severe
administrative burden
that would no doubt follow if parties could freely submit documents
in the Commission office of their
choosing, regardless of the
proximity of that office to the location of the election to be
contested.
37
Perhaps
most importantly, the requirement that election documents be
submitted locally pays deference to the necessarily local
nature of
the democratic process in the context of municipal elections.
38
By providing for the local processing and
verification of election documents, the submission requirements of
sections 14 and
17 promote participation and transparency in the
democratic process at the very heart of where the democratic
process is going
to have its effect. Voters’ perception that
elections have been undertaken in a free and fair manner requires
that democracy
be seen to be done at the local level. The
submission requirements of sections 14 and 17 provide voters access
to the democratic
process not just on the day that they visit the
ballot box, but long before, so that interested voters may actually
go to the
local Commission offices and confirm, for themselves,
that the documents relating to the parties and candidates
contesting
their local elections have been duly submitted.
Contrary to the argument by
the IFP that disallowing its filing in Durban undermines the
foundational values of universal suffrage
and multi-party
democracy, these values are best advanced through the Commission’s
rigorous adherence to the provisions
of the Act, read in the light
of their legislative purpose. And this is crucial to the integrity
of the electoral process.
As this Court emphasised in
Liberal
Party
—
“
[an]
applicant’s inability to contest the forthcoming elections,
therefore, arises solely from its failure to comply with
the
mandatory provisions of the Electoral Act and regulations and cannot
be laid at the door of the Commission.”
39
For all these reasons, we
conclude that there is a central and significant legislative
purpose in requiring that election documentation
be submitted at
the local offices of the Commission. The submission of
documentation at a place other than “the office
of the
Commission’s local representative” does not, therefore,
constitute compliance with the provisions of sections
14(1) and
17(1) and (2) of the Act. It follows that the Commission was fully
justified in refusing to allow the IFP to submit
its election
documentation for Umzumbe Municipality at its Durban office. The
order made by the Electoral Court can therefore
not stand.
Counsel for the IFP urged this
Court to hold that this was an exceptional case. He emphasised the
fact that once the administrative
error was discovered, the IFP did
everything within its power to submit the documentation in Umzumbe,
but bad weather prevented
it from doing so. He also drew attention
to the fact that there are a number of IFP voters whose likely
choice of candidates
would be precluded from taking part in the
elections, and to the IFP’s historic strength in Umzumbe. The
provisions of
the Act are, however, an insurmountable hurdle for
the IFP. Once it is concluded, as this Court has done, that,
construed in
the light of their purpose, the provisions of sections
14 and 17 require local notification, the hands of the Commission
are
tied. In addition, because this case is not about condonation
for non-compliance, the question of discretion exercised in the

face of exceptional circumstances simply does not arise.
It is necessary that the
integrity of the electoral process be maintained. Indeed, the
acceptance of the election as being free
and fair depends upon that
integrity. Elections must not only be free and fair, but they must
be
perceived
as being free and fair. Even-handedness in
dealing with all political parties and candidates is crucial to
that integrity and
its perception by voters. The Commission must
not be placed in a situation where it has to make ad hoc decisions
about political
parties and candidates who have not complied with
the Act. The requirement that documents must be submitted to the
local offices
of the Commission does not undermine the right to
vote and to stand for election. It simply gives effect to that
right and
underscores the decentralised and local nature of
municipal elections.
Finally,
counsel for the IFP urged us to exercise our just and equitable
jurisdiction under section 172(1)(b)
40
of the Constitution and direct the Commission to
allow the IFP to take part in the Umzumbe election even if we are
against it
on the law. The argument rests upon the fact that the
Commission has made contingent plans to include the IFP in the
election
in the event this Court confirms the order of the
Electoral Court.
This Court does not have the
power to grant relief that amounts to allowing the IFP’s
participation in the election when
it has not fulfilled the
requirements of the Act. It further cannot be just and equitable
for a court to penalise the successful
party for making contingency
plans to comply with the order of a court in the event that such
order is confirmed on appeal.
To do otherwise would not only be
contrary to the law, but it would also undermine the efficiency of
the Commission, which
may be reluctant, in the future, to make
contingency plans.
Costs
The Commission did not ask for
costs. And this is not an appropriate case in which an order for
costs should be made.
Conclusion
In all circumstances, the
Electoral Court should have refused leave to appeal and dismissed
the application by the IFP. The
order of the Electoral Court
should, therefore, be set aside and replaced with one to that
effect.
Order
In the event, the following
order is made:
Condonation of the late filing
of the record is granted.
Leave to appeal is granted.
The appeal is upheld.
The order of the Electoral
Court is set aside and is replaced with an order refusing leave to
appeal and dismissing the application.
There is no order for costs.
Moseneke DCJ, Cameron J,
Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Van der
Westhuizen J and Yacoob J concur in the
judgment of Ngcobo CJ.
For
the Applicant: Advocate JJ Gauntlett SC and Advocate FB Pelser,
instructed by Gildenhuys Lessing Malatji Inc.
For the
Respondent: Advocate Max du Plessis and Advocate Andreas Coutsoudis,
instructed by Lourens De Klerk Attorneys.
1
Exercising
its power under section 11 of the Local Government:
Municipal
Electoral Act 27 of 2000
, the Commission published the election
timetable in Government Notice 134, contained in Government Gazette
34114 of 11 March
2011.
2
Inkatha
Freedom Party v The Electoral Commission
, EC Case No 001/11, as
yet unreported. The date stamp of the Registrar of the Supreme Court
of Appeal on the judgment reflects
20 April 2011.
3
27
of 2000.
4
African
Christian Democratic Party v Electoral Commission and Others
[2006] ZACC 1
;
2006 (3) SA 305
(CC);
2006 (5) BCLR 579
(CC).
5
Id
at para 27.
6
Id.
(Emphasis added.)
7
Id
at para 28.
8
Id
at para 33.
9
Above
n 2 at para 15.
10
Id.
11
Id.
12
Id.
13
See
[3] above.
14
[2004]
ZACC 1
;
2004 (8) BCLR 810
(CC) at paras 21-5.
15
Above
n 4 at para 23.
16
The
IFP refers as authority for this argument to this Court’s
ruling in
August and Another v Electoral Commission
and
Others
[1999] ZACC 3
;
1999 (3) SA 1
(CC);
1999 (4) BCLR 363
(CC)
at para 17, which dealt specifically with the Commission’s
obligation to enable prisoners to register and vote.
17
These
are contained in General Notice 794 of 1998 published in Government
Gazette 18908 dated 15 May 1998.
Rule 5
, entitled “Appeal
proceedings”, provides:
“
(1) An application for leave
to appeal against a decision of the Commission must be made in
writing and lodged within three days
after the decision has been
made.
(2) The application in terms of subrule (1) must set
out succinctly, fairly and clearly the points of law concerned and
the information
necessary to enable the Chairperson to consider the
application.
(3) The Secretary must inform the party who made the
application and the Commission of the decision of the Chairperson
regarding
the application without delay.
(4) If leave to appeal has been granted, the party who
made the application and the Commission must lodge with the
Secretary comprehensive
written submissions within three days after
being informed in terms of subrule (3).
(5) The party that lodges an appeal must—
(a) set out fully in its written submission—
(i) the findings of law and fact, where appropriate;
(ii) the order or orders against which the appeal is
directed; and
(iii) the grounds on which its contentions are based;
and
(b) attach, if possible, any relevant record or minutes
of the proceedings concerned.”
18
Emphasis
added.
19
Rule
6
, entitled “Review proceedings”, provides:
“
(1) A party who is entitled
to and wants to take a decision of the Commission on review must
lodge a comprehensive written submission
with the Secretary within
three days after the decision has been made.
(2) The Commission must lodge a comprehensive written
submission with the Secretary within three days of receipt of a
submission
referred to in subrule (1).
(3) The party who takes a matter on review must—
(a) set out fully in its written submission—
(i) the decision or decisions which it requires to be
reviewed; and
(ii) the grounds therefor; and
(b) attach, if possible, any relevant record or minutes
of the proceedings concerned.”
20
Section
190(1)(a)-(b) of the Constitution.
21
Section
19(3)(a) of the Constitution.
22
Section
19(3)(b) of the Constitution.
23
As
emphasised by this Court in
ACDP
, where it noted: “it
needs to be borne in mind that electoral appeals will often be of an
extremely urgent nature”.
See above n 4 at para 17.
24
Above
n 4 at paras 20-3.
25
Section
2, entitled “Interpretation of this Act”, provides:
“
Any person interpreting or
applying this Act must—
do so in a manner that gives effect to the
constitutional declarations, guarantees and responsibilities
contained in the Constitution;
and
take into account any applicable Code.”
26
Section
19(3)(a) of the Constitution.
27
Section
19(3)(b) of the Constitution.
28
Section
1(d) of the Constitution.
29
Above
n 4 at para 23; above n 16 at para 17.
30
Above
n 4 at para 23.
31
Id
at para 31.
32
Id
at para 26. (Emphasis added.)
33
Id.
34
Id
at para 27.
35
Id
at para 31.
36
Section
12, entitled “Appointment of local representatives”,
provides:
“
(1) When an election has been
called, the Commission must appoint, for the area of the
municipality in which the election will
be held, an employee or
other person as its representative for the purpose of the election.
(2) A local representative of the Commission—
(a) may exercise the powers and must perform the duties
conferred on or assigned to a local representative by or under this
Act;
(b) performs those functions of office subject to the
directions, control and disciplinary authority of the chief
electoral officer;
and
(c) holds office subject to section 37.”
37
That
the local submission requirements of sections 14 and 17 facilitate
administrative efficiency in the application review process
is
evidenced by the supplementary affidavit filed on behalf of the
Commission. The Commission maintains local offices in order
to
provide the necessary support to a decentralised processing of
documents under sections 14 and 17. The local representative,

supported by the relevant municipal local office, receives
documents, issues an acknowledgment receipt, screens the documents

for completeness and captures the data therein. Local
representatives also provide notice to local parties of
non-compliance
so that they may take steps to come into compliance
with the rules. Supplementary documents are also processed at the
local level.
38
The
Preamble to the Act states, in part, that the Act is “[t]o
regulate municipal elections”.
39
Above
n 14 at para 30.
40
Section
172(1)(b) of the Constitution provides:
“
(1) When deciding a
constitutional matter within its power, a court—
. . . .
(b) may make any order that is just and equitable,
including—
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent
authority
to correct the defect.”