IN THE ELECTORAL COURT OF SOUTH AFRICA
HELD AT BLOEMFONTEIN

Not Reportable
Case number: 11/2022 EC
In the matter between:
TSOGANG CIVIC MOVEMENT
Applicant
and
ELECTORAL COMMISSION OF SOUTH AFRICA
First Respondent
GOVERNMENT PRINTING WORKS
Second Respondent

DITSOBOTLA LOCAL MUNICIPALITY
Third Respondent

Neutral Citation:
Tsogang Civic Movement v Electoral Commission of South Africa
and Others (11/2022 EC) [2022] ZAEC 12 (30 December 2022)

Coram:
Zondi JA, Shongwe AJ, Modiba J, and Professor Ntlama-Makhanya and
Professor Phooko (Additional Members)

Delivered:
These reasons were handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and release to SAFLII. The date and time for hand-down is deemed to be 09:45 am on
30 December 2022.

REASONS

Shongwe AJ (Zondi JA, Modiba J and Professor Ntlama-Makhanya and Professor
Phooko (Additional Members) concurring):

Introduction
[1] This is an urgent review application opposed by the Electoral Commission (the
Commission), first respondent only. The second and the third respondents did not file any
notice to oppose. The applicant prays for:
‘(1)
Reviewing and setting aside the decision of the first respondent, that notwithstanding
non-compliance with the 14-day period as envisaged in Section 15 and/or Section 16 of
the Electoral Commission Act 51 of 1996, which is a direct result of the conduct of the
[First] Respondent, the Chairperson of the Electoral commission or any such authorized
person within the Commission, could not issue a certificate in terms of Section 15(5) to
the Applicant;
(2)
That the First Respondent be compelled to allow the Applicant to register and publish its
candidate list in terms of the Act;
(3)
That first respondent be compelled to do all things necessary required by it to ensure that
the Applicant is able to participate in the election of 14 December 2022 in Ditsobotla
Municipality Local Elections.
(4)
Alternatively, and in the event that the above honourable court is unable to grant any of
the foregoing prayers, that the elections of 14 December 2022 be delayed and/or
postponed to a suitable date to enable the applicant to comply with the statutory prescripts
and contest in the elections currently scheduled to be heard on 14 December 2022 in the
jurisdiction of the third Respondent.’
After the first respondent filed its answering affidavit and the applicant having filed its
replying affidavit, the Court, having considered all the papers before it, decided the matter
in chambers on the papers, without any oral submissions as follows:
‘The application is dismissed with no order as to costs.’
What follows are the reasons for the order.

Factual Background
[2] The applicant applied to the first respondent to be registered as a political party in
November 2022. The intention was to participate and contest the by-elections were to be
held on 14 December 2022 in the area of Ditsobotla Local Municipality- the third
respondent in this matter. To confirm a registration of a political party, the Chief Electoral
Officer (CEO) of the Commission has to issue a registration certificate. Before a
registration certificate could be issued the applicant had to cause the notice of application
to be published in a Government Gazette or local newspaper circulating in the area in
terms of s 15(1) read with s 16(1) of the Electoral Commission Act 51 of 1996 (the
Commission Act). Only after 14 days of the publication can the CEO consider issuing a
registration certificate.

[3] On 1 November 2022 the applicant timeously submitted to the second respondent,
the Government Printing Works for the publication of its notice of application to be
registered as a political party. However, for some unexplained reasons, the publication
only occurred on 18 November 2022. The applicant submitted to the Chief Electoral
Officer proof of publication of the prescribed notice of application for registration. This was
late for the Commission to timeously issue a certificate of registration. Section 16(1) of
the Commission Act read with the Regulations for the Registration of Political Parties
2004 (the Regulations) requires that a period of fourteen days must have elapsed since
the submission to the Chief Electoral Officer proof of publication of the prescribed notice
of application for registration as a political party before a registration could be issued.

[4] The earliest possible date would have been 6 December 2022 – this date would
have been outside the cut-off date of the submission of its candidate list which was before
17h00 on 21 November 2022 as per the election timetable for the by-elections which were
to take place on 14 December 2022.

[5] After the exchange of various correspondence between the applicant and the
second respondent, the applicant sent a letter to the CEO of the Commission demanding
the issuance of the registration certificate. On 22nd November 2022, the CEO replied to

this letter advising the applicant of the fact that the CEO could not issue the registration
certificate as the applicant failed to comply with the peremptory legislative requirements.
The applicant was also informed of the relevant legislative scheme. The applicant was
further provided with comprehensive reasons why the CEO could not accede to the
demand.

Legislative Framework
[6] It is trite that the Commission is subject only to the Constitution and the law.
Section 13 of the Local Government: Municipal Electoral Act 27 of 2000 provides that
only registered political parties may contest elections for municipal councils. It is
significant to note that the applicant was not a registered political party by the
21st November 2022- the date of the letter of demand.

[7] Section 15(1) read with s 15(b) of the Commission Act provides for the registration
of political parties and the issuance of registration certificates. Section 15(4A) of the
Commission Act provides that:
‘A party applying for registration in terms of sub-section (1) must publish the prescribed notice of
application in-
(a) . . .
(b) . . .
(c) The relevant provincial Gazette or a local newspaper circulating in the municipal area
concerned, in the case of an application referred to in sub-section (1)(c).’
The above provisions are peremptory and not discretionary. The reason for this is to allow
the public an opportunity to peruse the intended application for registration and to object
thereto, if necessary.

[8] Section 16 provides that the CEO may not register a political party in terms of s 15
or 15(A) if- ‘14 days have not elapsed since the applicant has submitted to the CEO proof
of publication of the prescribed notice referred to in section 15(4A)’. It is important to note
that up to and until the letter of demand the applicant had not properly published the
notice of application and allowed 14 days to lapse. Regulation 2 of the Regulations
stipulates that, inter alia: ‘The CEO must reject an application for any of the reasons

contemplated in section 16 (1) of the Commission Act or if the application does not comply
with the provisions of the Commission Act or Regulations’.

Discussion
[9] It is common cause that the applicant published the notice of application in the
Gazette on 18 November 2022 and submitted to the CEO proof of publication of the
relevant notice on 21 November 2022. It is also not disputed that before the peremptory
14 days had elapsed, the applicant demanded on 21 November 2022 the issuance of the
registration certificate. This demand was not only premature but also unlawful. The law is
clear on what should happen before the registration certificate is issued. It is also clear
that the CEO has no discretion and may not register a party before certain requirements
are met. It is not disputed that the 14 days had not lapsed when it demanded the
registration certificate, all the applicant says is that the second respondent is to blame for
the delay. In other words, because the second respondent is to blame, the Commission
should be vicariously held responsible for the conduct of the second respondent.
Unfortunately, the applicant fails to mention the reason why the Commission should be
held responsible.

[10] It is my considered view that the Commission acted lawfully, reasonably, rationally
and within the ambit of the law and Regulations. I reject the notion that the Commission
acted unfairly and irrationally to prejudice the applicant as there is no evidence to support
these allegations. The application does not pass muster and therefore stands to be
dismissed.

[11] In the alternative the applicant asked for the postponement of the by-elections in
the ward it intended to contest, however, the applicant failed to join the other contestants
who would be directly impacted by the postponement or at least give them a notice that
it would be asking for a postponement of the by-elections. Even after the Commission
raised the issue of non-joinder in its answering affidavit, the applicant decided to say
nothing on the issue of non-joinder in its replying affidavit. I am constrained to conclude

that the applicant failed to make out a proper case on the postponement of the by-
elections.

[12] The applicant failed to ensure that it was registered timeously as a result excluded
itself from contesting in the by-elections. Therefore, it is not entitled to the relief sought.
These are the reasons why the application was dismissed with no order as to costs.

J B Z SHONGWE
ACTING JUDGE OF THE
ELECTORAL COURT

APPEARANCES

For the first applicant:

K P Mputle

Molefi Thoabala Inc., Bloemfontein

For the first respondent:

P S Mamabolo
Instructed by:

DMO Attorneys, Bryanston