IN THE ELECTORAL COURT OF SOUTH AFRICA

HELD AT BLOEMFONTEIN

Reportable
CASE NO: 008/21 EC

In the matter between:

PHUMZILE SELDA PHASHA
1st Applicant

LESIBA LEKGOATHI

MONUABISI ZULU

KENETH MLUNGISI BAFO

NKOTO RICHARD MOAKA

A M MOHLALA

MOHLAKORE MORAKANE MOPEDI

BUYISWA JOSEPHINE THWALA

NAPOLEON WEBSTER

NOMAQALA ALINA TLELIMA

FRANS PHUTI NGOETJANA

PERSONS WHOSE NAME APPEAR ON THE LIST

2nd Applicant

3rd Applicant

4th Applicant

5th Applicant

6th Applicant

7th Applicant

8th Applicant

9th Applicant

10th Applicant

11th Applicant

12th to 257th Applicants

And

ELECTORAL COMMISSION OF SOUTH AFRICA

1st Respondent

SIMON MAMABOLO N O
2nd Respondent

NARIUS MOLOTO N O
3rd Respondent

PHILLIP DLAMINI N O

NTSIRI SHADRACK POOE

CITY OF EKURHULNI

CITY OF TSHWANE

CITY OF CAPE TOWN

INTSIKA YETHU DISTRICT MUNICIPALITY

GREAT TUBATSE MUNICIPALITY
4th Respondent

5th Respondent

6th Respondent

7th Respondent

8th Respondent

9th Respondent

10th Respondent

Neutral Citation: Phasha and Others v The Electoral Commission of South Africa and
Others (Case no 008/21 EC) [2022] ZAEC 1 (3 January 2022)

Coram: Mbha JA, Moshidi AJ and Ms Pather - member

______________________________________________________________________

EX TEMPORE JUDGMENT
______________________________________________________________________

[1] The above matter was heard in this Court on Monday, 29 November 2021. At the
conclusion of argument, and having considered the matter, the Court gave an ex tempore
judgment and ordered as follows:
(a) The entire application is dismissed.
(b) There is no order as to costs.

[2] The application was found to be materially defective in various material respects,
for example:

(a) The 12th to 257th applicants cited in the Notice of Motion were all not before Court.
Applicants’ counsel could not provide any explanation as to the absence of the names
and particulars of such applicants.
(b) The applicants sought, inter alia, an order declaring the local government elections in
25 specified municipalities not to be free and fair. However, only seven (7) of such
municipalities were cited as respondents and on whom the application papers were
served. The remaining 18 municipalities against who an order of declaration was sought
were not cited, nor were they served with the papers in this litigation.
(c) Whilst the applicants also sought an order suspending the said elections, interested
parties, being political parties and independent candidates who contested the elections
in the named municipalities, were neither cited nor served with the application papers.
The aforementioned defects are material and fatal to the application. It thus fell to be
dismissed on this ground alone.

[3] The application was brought to Court for issuing on Friday, 29 October 2021. The
papers were served by email on the respondents at around 23h30 on 28 October 2021.
The respondents were afforded until 10h00 on 29 October 2021 to file notices to oppose
and until 12h00 on the same day, to file answering papers. The matter was intended to
be enrolled for hearing at 14h00 on 29 October 2021. It must be borne in mind that the
application concerned the local government elections that were going to take place the
next Monday on the 1st November 2021. The Electoral Commission of South Africa (the
Commission), together with other respondents duly filed notices to oppose. There was
the usual exchange of papers and the matter was ultimately enrolled for the 29th
November 2021. Clearly, by then the ‘horse had already bolted’ so to speak, since the
elections had already come and gone. The applicants, however, chose to proceed and
argue the matter.

[4] The Court found that the applicants were totally unreasonable and unfair with
regard to the time frames given to the respondents. In addition, the rules of the Court
were breached in a manner that was found to amount to an abuse of the court process.
The Court also found that, whilst the cause of complaint in this matter arose at the latest
allegedly on 21 September 2021, there was no explanation given whatsoever either in

the papers or at Court as to why the appellants only launched the application more than
a month later on 29 October 2021. The Court found that the urgency with which the
application was filed, was self-created, warranting the dismissal of the application on this
ground alone.

[5] The Court found that the Commission was obliged to act in terms of a valid court
order of the High Court, Gauteng Division, Pretoria, per Mahlangu AJ, that was handed
down on 23 August 2021. The order enjoined the Commission to allow the PAC, as
represented by the leadership elected at the Bloemfontein conference, held on 20 and 30
August 2019, to participate in the 2021 local government elections. The fact that there is
an appeal to the SCA subsequently lodged on 18 October 2021, has no bearing on the
events that took place on 21 September 2021 when the Commission accepted
registration documents from candidates representing the PAC whose NEC was elected
at the aforenamed Bloemfontein conference. In the circumstances, the application was
without merit and fell to be dismissed.

[6] The Court also found that no case was made out by the applicants that the
Commission had removed or terminated any of the applicants as municipal councillors.
The Court was satisfied that the Commission did not have such a power.

Dated at Bloemfontein
03 January 2022
By order of Court