REPUBLIC OF SOUTH AFRICA

ELECTORAL COURT, BLOEMFONTEIN

CASE NO:006/11 IEC

In the matter between:

AFRICAN ALLIANCE

Applicant

and

THE ELECTORAL COMMISSION

Respondent

Neutral Citation: African Alliance v The Electoral Commission (Case no
006/11 IEC) [2011] ZAEC 5 (13 May 2011)

SUMMARY
Election law – Municipal elections – s 14 of Local Government:  Municipal
Electoral Act 27 of 2000 – Application to compel respondent to accept
documents
–
Submission
of
necessary
documents
to
the
local
representative’s office – Documents submitted to incorrect office of
respondent – Alleged ignorance of process – Respondent not obliged to
assist contesting political party other than upon request, providing information
given to all parties – Maintaining integrity of respondent and election process
of utmost importance in free and fair elections – Strict adherence to provision
of Act – Application dismissed.

JUDGMENT

PILLAY, J
[1] The applicant brings this application to this court as a matter of
urgency.  The relief it seeks includes an order compelling the respondent to
issue a registration certificate as a contesting party in the forthcoming local
government elections and to accept its list of candidates for the upcoming
local government elections scheduled for 18 May 2011 (“the elections”).

[2] The applicant applied for registration as a political party on 24
November 2010 in preparation to contest the elections.  The application was
defective in that certain legal requirements had not been complied with.  This
caused various delays as remedial actions to comply with those shortcomings
turned out to be time consuming.  Most, if not all, of these shortcomings were
of the applicant’s own making.  So, to were the delays in implementing
remedies to the application for registration as a political party.

[3] On 7 March 2011, the applicant received facsimile correspondence,
dated 5 March 2011, informing it that it’s registration as a political party had
been approved, subject to a thirty-day period during which objections thereto

could be made.  Despite the chairperson of the applicant party suggesting that
because the thirty-day period eclipsed the cut-off date set for the submission
of inter alia, candidate lists and deposits, he concedes that officials of the
respondent indicated to him that his party should submit its necessary
documents accordingly.  Consequently, to the extent that the applicant relies
thereon to demand in effect, an extension of time to submit these documents,
it was clearly not prejudiced by the thirty-day period which eclipsed the cut-off
date and therefore it cannot benefit thereby.

[4] It is common cause that the chairperson of the applicant attempted to
submit the list of candidates to the respondent’s Belville office as he thought
he could submit them at any of the respondent’s offices.  He arrived there at
16h53 and on attempting to submit this, he was told that he was at the wrong
office and that these document(s) should in fact be submitted at the
Tygervalley office of the respondent (as the contesting political parties had
been informed).

[5] The chairperson of the applicant seems to have made all manner of
attempts to obtain relief compelling the respondent to accept the document(s)
in question.  (It is uncertain whether the chairperson of the applicant
attempted to submit all necessary documents at the material time.)  This

included an application to the Western Cape High Court on 26 April 2011.  It
did not succeed in any of its efforts and finally it came to this court.  The
aforementioned delays and the various futile attempts certainly raises
questions as to the urgency of this application.  It is however not necessary to
determine urgency in light of the decision arrived at.
[6] Much of the applicant’s affidavits and further submissions requested by
this court, entails assertions that the respondent did not inform it of
procedures and dates by which the initial preparatory steps for the elections
had to take place.  It holds the respondent responsible for its predicament
because it had not advised its officials.  For example, on the 8 March 2011, all
the parties were invited to a workshop where, by all accounts, crucial
information was given to the competing political parties and when discussions
took place.   The applicant was not invited to this.  The reason for this is quite
clear – it was not, at the time, a registered political party.  It was unknown to
the respondent and would thus not have received an invitation to the
workshop.

[7] By its own admission, the applicant heard of the procedure to be
followed and the established time frames from other people.  As its officials
stated, they had “no clue” as to the procedures to be followed.

[8] Section 14 and 17 of the Local Government:  Municipal Electoral Act
27 of 2000 (‘the Act’) governs the procedures as to which documents need to
be submitted and to which office they should be submitted.

[9] As alluded to, it is common cause that the applicant sought to submit
documents at the incorrect office.  It was correctly refused.  Section 14 (1) of
the act prescribes that the documents must be submitted at a particular office
of the respondent.  This provision is peremptory.

[10] In response to the assertions made by the applicant, it was contended
on behalf of the respondent that it carried no duty to offer assistance to a
particular party.  In any event, officials of the respondent would not know that
the party required assistance.

[11] In my view, without a request for information which is given to all
parties, particular attention to a party might result in a risk to the integrity of
the respondent.  By the very nature of managing elections, it is important that
it remains independent with its integrity in tact.  In protecting its integrity, the
respondent would maintain the necessary integrity of the whole electoral
process upon which the notion of a free and fair election depends.  (See:

Electoral Commission of the republic of South Africa V Inkatha Freedom
Party (CCT 33/11) [2011] ZACC 16 (10 May 2011) at para [55]).

[12] Furthermore, the respondent could not make an exception in the face
of compelling legislation.  The respondent cannot be held responsible for the
ignorance of the applicant’s officials in regard to the procedures required to be
complied with in order to enter the contestations of elections.  If it had no clue,
it should have taken the trouble of investigating and ascertaining the
necessary information once its officials had heard about it from others.

[13] The applicant did not submit documents at the proper offices of the
respondent.  Their reason for not doing so are not well founded and it will
therefore find itself unable to contest the forthcoming elections.  This inability
to contest the forthcoming elections arises solely from its failure to comply
with the mandatory provisions (See: Liberal Party v The Electoral
Commission and Others 2004 (8) BCLR 810 (CC) at 818 para [30]).  The
application therefore falls to fail.

[15] In the result, the application is dismissed.

________________________________
PILLAY J

JUDGE OF THE ELECTORAL COURT

CONCURRED:
MTHIYANE JA
MASIPA J

Date: 13 May 2011